During the Budget Speech 2020-21, Union Finance Minister Nirmala Sitharaman had announced that the Government mulls revising women’s legal age of marriage from 18 to 21 years in hope of bringing parity between the legal age of marriage for men and women. For this purpose, the Ministry of Women and Child Development, assisted by NITI Aayog, has constituted a high-level committee to go into the matter and submit the recommendations to the Government. This committee of ten members will be headed by former Samata Party president Jaya Jaitley including Secretaries of Health Women and Child Development, Law and School Education, V K Paul, Members, Health and others. This task force will not only examine the legal age of marriage for women but also the age of motherhood, imperatives of lowering the mortality rate, improvement of nutritional levels and other related issues with motherhood.
Looking back, since the British Empire, there have been laws concerning the age of marriage however for the first time with the enactment of the Indian Penal Code in 1860, there was a concrete law that criminalised and prohibited sexual intercourse with a girl below the age of 10 years. In 1927, with the fight for independence on full throttle, there was a parallel movement rising for women rights which pressurised the British government into passing the Age of Consent Bill,1927 that made marriage with a girl under 12 years illegal. This was followed by the passing of the Child Marriage Restraint Act,1929 in the Imperial Legislative Council on the recommendation of the Joshi Committee, which set the minimum age of marriage as 14 years for women and 18 years for men. This is widely known to be the first social reform brought about by an organised women’s group in India and the act was termed as Sarda Act as it was sponsored by Rao Sahib Harbilas Sarda who was a retired judge and a member of Arya Samaj.
However, the law was not very successful in terms of implementation and was called a ‘dead letter’ due to the communal appeasement policy of the British towards Hindu and Muslims. In 1978, an Amendment was made in the Sarda Act which changed the minimum age of marriage for women to 18 years and for men 21 years.
Finally, in 2006, Prohibition of Child Marriage Act, 2006 was enacted which made child marriage, i.e. marriage below the prescribed minimum age of marriage for men and women, a cognizable and non-bailable offence and till now this amendment is applicable in India as a major law regarding prohibition of child marriage.
Challenges imposed by Personal Laws
Implementing all such laws in a country as diverse as India proved to be cumbersome as various religions have their own set of laws and standards based on their customs which dictate the age for marriage.
For Hindus, Section 5(iii) of the Hindu Marriage Act,1955 sets the age of marriage as 18 years for women and 21 years for men. However, in Islam, as established in the case of Mohd. Nihal vs. State[i], the division bench concluded that “a Muslim girl, who has reached puberty or is presumed to have reached puberty on attaining the age of 15, is competent to enter into matrimony even if this partakes of a contract simpliciter.” Similarly, there are different distinctions in the Indian Christian Marriage Act 1872 and the Parsi Marriage and Divorce Act 1936.
Consequently, the Special Marriage Act,1954 was enacted so that people could get married to each other irrespective of their religion and faith.
Need to increase the minimum age of marriage for girls
Early marriages could expose women to various problems by making them vulnerable to future complications as well as make them look inferior to men in society such as:
- Health issues: Early pregnancies among adolescents have major health consequences for adolescent mothers and their babies. Adolescent mothers (ages 10–19 years) face higher risks of eclampsia, puerperal endometritis, and systemic infections than women aged 20 to 24 years[ii], and babies of adolescent mother’s face excessive risks of low birth weight, severe neonatal conditions and preterm delivery. Pregnancy and childbirth complications are the major cause of death among girls aged 15–19 years globally, with low- and middle-income countries accounting for 99% of global maternal deaths of women aged 15–49 years[iii].
- Education & Economy: Early marriage hampers the most basic and important requirement of life i.e. education as domestic responsibilities often take over the lives of women and they are unable to pursue higher education which goes against the notion of “educate a woman and you will educate a family, educate a family and you will educate a nation.” Thus limiting her economic independence, which prevents her from making conscious choices about her life and taking her own needs into account.
- Unwanted pregnancies & Infant Mortality: At an early age due to lack of knowledge there is a lack of planned pregnancy and according to one report of WHO at least 10 million unwanted or unintended pregnancies occur each year among adolescent girls aged between 15-19 years in the developing world[iv]. Infant mortality rate (IMR) is the number of death of infants under one year of age per 1000 live births. This is also a problem of early marriage as it is significantly higher in children born to mother who are married at an early age according to a report of NCBI.
Additionally, while the mean female marriage age in India is already above 21 years, about 35% are married before then, according to SBI. India is home to every third child bride in the world, with more than 100 million getting married even before turning 15, according to the United Nations Children’s Fund. and as per UNICEF, the percentage of women getting married before the age of 18 years was 27% in 2017 and the number of girls who were married between the ages of 15-19 who died due to pregnancy and childbirth issues was 35,000.
Well into the 21st century we have worked hard to eradicate child marriage but it is still an ongoing practice. Similarly, early marriages should also be considered a public health issue as they have an impact on the physical and mental health of a woman. This legislation of uniform legal minimum age for marriage in women and men if came into effect would further the equality of genders as seen in other developed countries, for example, 18 years in the US and the UK, 20 in Japan and even the cultural twin of India, Nepal permits marriage only after attaining the age of 20.
Mere legislation will not be sufficient to serve the purpose unless society changes too, as while the law will take its course, it is the effective implementation and earnest efforts for a change in mindset that can write a better reality for women in India.
[i] Mohd. Nihal v. State: WP (Crl) 591/2008
[ii] WHO. Global health estimates 2015: deaths by cause, age, sex, by country and by region, 2000–2015. Geneva: WHO; 2016.
[iii] Neal S, Matthews Z, Frost M, et al. Childbearing in adolescents aged 12–15 years in low resource countries: a neglected issue. New estimates from demographic and household surveys in 42 countries. Acta Obstet Gynecol Scand 2012;91: 1114–18. Every Woman Every Child. The Global Strategy for Women`s, Children`s and Adolescents` Health (2016-2030). Geneva: Every Woman Every Child, 2015.
[iv] Darroch J, Woog V, Bankole A, Ashford LS. Adding it up: Costs and benefits of meeting the contraceptive needs of adolescents. New York: Guttmacher Institute; 2016.
this article is authored by Abha Pratap Singh, first-year law student at Gujarat National Law University. Presently working as a contributing author at The Blue Letters.