Abstract
Marriage is one of the key relationships in our Indian society which is given the utmost respect. Society believes it to be a necessary part of our lives. Parents in India believe that marrying their daughters off as soon as possible, is their responsibility and after doing so, their shoulders will be free from the burden; similar for boys but only after they start earning enough to take care of a family. An unmarried daughter is considered a liability to the family and to pay off this liability, they marry her off at a very young age, not paying any heed to her physical or mental health, career, or even education. Our society believes in the notion of ‘Age Heterogamy’, where the husband should be older than the wife. To overcome gender inequality and counter malnutrition and focus on the health of women, Prime Minister Narendra Modi, declared in his speech on the 73rd Independence day, that the government will increase the legal age of women for marriage in India to 21 from 18. Many people welcomed this change, believing that this will end gender-based discrimination but many people questioned this stating that how will be increasing the legal age ensure equality for women and reduce malnutrition levels in them. This research seeks to initiate the discussion on whether increasing the legal age of women for marriage is necessary and do we need such laws to tackle the ongoing issues.
Keywords
Gender inequality, legal age for marriage, career, literacy, child marriage, human rights violation, physical-mental health
Introduction
Marriage before 18 years of age is considered harmful especially for the girl because it denies her highest attainable standard of general, sexual, and reproductive health and to a life free from violence. Under-age marriage also constrains evolving physical, emotional, and personal maturity required to safely and successfully transition to adulthood. It places restrictions on opportunities in life, such as the right to education. Under-age marriage also restricts women’s ability to fully participate in family, socio-cultural, and civic activities. Collectively, these consequences have major implications for public health.[1]
The Age of Consent Act[2] was passed in 1891, which raised the age of consent for sexual intercourse to 12 from 10 years, but this act did not put forward any inputs for the legal age of marriage due to which, the issue of the age of marriage was addressed in the ‘Child Marriage Restraint Act of 1929[3]’, commonly known as the Sarda act which declared 14 and 18 years of age as the minimum age to get married[4]
In 2006, the Prohibition of Child Marriage Act[5] revised the age of marriage to 18 for girls and 21 for boys and in 2020 a new committee was set up to look into the matter of the marriageable age of women by the Women and Child Development ministry. The government represents this as a step towards the path of gender equality, but many social activists have stated that it could be disastrous, as many women in our society have hearsay only after they get married.
On one hand, the government declares citizens above the age of 18 as an adult and they can practice their legal rights such as voting and electing the government of the country but on the other side, the government increased the minimum age to get married and to consciously consent to sexual relations. How is it that a person is mature enough to decide the government of the nation but cannot take decisions about his/her sexual life?
Instead of increasing the age required for a woman to get married, the government should increase the incentives and programs to promote the development of Indian women. Mere delay in getting married will not bridge the serious societal issues that prevail in our society like low literacy level, increasing dropout scale amongst girl child, lack of menstrual awareness and hygiene, child marriage, early pregnancies, and many more.
The United Nations has mentioned in its numerous resolutions that denial of any right amounts to human rights violations, and such human rights violations take place at a large scale in our country. Females in our country are denied their right to education, which very well amounts to human rights violations and this issue needs to be addressed on a large scale as soon as possible, by efficient programs. Society must be made aware of the harmful repercussions that these prevailing issues bear along with themselves and if we fail to do so, then we need to accept the fact that our nation will never be able to achieve the goal of gender equality.
Research Methodology
The research paper employs a self-opinionated approach to ascertain the facts, circumstances, and reasons important to the research issue. The methodology used is mostly based on secondary sources which include books, journals, articles, reports published by the government, and websites of different governmental and non-governmental agencies and organizations.
Review of Literature
According to a report by UNICEF, each year more than 1.5 million girls under the age of 18 get married in India making it the home to the largest number of child brides in the world – accounting for a third of the global total.[6] While the prevalence of girls getting married before age 18 has declined from 47 percent to 27 percent between 2005-2006 and 2015-2016 it is still too high.[7] The Prohibition of Child Marriage Act, 2006[8], defines that a ‘child’ means a person who, if a male, has not completed twenty-one years of age, and if a female has not completed eighteen years of age and as per this act child marriage is illegal. But still, such practices are prevalent due to factors such as societal pressure of having an unmarried daughter at home, dowry, and loss of honor if the girl loses virginity before the marriage. This situation is more commonly seen in rural areas where a girl child is considered as a stroke of bad luck bringing economic pressure upon the family.
Age is an important factor when we talk about marriage because, scientifically speaking, a girls’ body is not ready to go under pregnancy when she has just become a teenager. The onset of her puberty prepares her body for the changes but it does not support early pregnancy. Early pregnancy has terrible effects on the body of the girl. She might suffer through serious physical ailments, mental disturbance and might even contract sexually transmitted diseases like HIV/AIDS and the baby being born would face a high risk of diseases such as intrauterine growth retardation, birth asphyxia, perinatal complications, and even prematurity, which in turn increases mortality rates among children. On the other hand, late marriages can lead to decreasing fertility rate which is quite considerate enough today.
The government believes that a critical response to the issue of malnutrition levels and inequality is increasing the legal age of marriage for women which will be at par with men. But do we actually need this change? We need to realize that the pre-existing laws against child marriage in India are not strict enough to tackle this situation and that increasing the legal age would push women towards a more vulnerable end. The marriages under the legal age would be socially accepted but legally termed void, leaving the girls with no legal remedy, because their marriage would be considered void by the law system in a country like ours where a women’s sexuality is closely associated with the matter of family honor such propositions might turn out to be very risky for them. The proposed law does not seem to be a sound policy to end gender inequality and to ensure development until and unless major reforms are taken.
Major Challenges
Legal remedy
Under section 3 of the Prohibition of Child Marriage Act of 2006[9], only the child who is/was the bride or groom has the right to file a petition to annul its marriage. In case the petitioner turns out to be a minor, then a guardian through the child marriage probationary officer can file a petition.[10]
The issue arising in the majority of the incidents was that the person was not in a position to approach any child marriage probationary officer and the guardians who were also under societal norms and pressure refrained themselves from taking any legal action.
Secondly, the Prohibition of Child Marriage Act of 2006[11] does not punish the officer, which makes it very less accountable and becomes a major hindrance in providing justice. Unless and until these loopholes are addressed, it will be really tough for the government to ensure equality just by raising the age of marriage.
Mental and physical health issues
Female infanticide is deep-rooted in our society and various other forms of discrimination against those girl children who survive and get born in this world. Various researches indicate that breastfeeding of a girl child is comparatively lesser than a boy child. Less nutritional intake makes them malnutrition over a period of time. Lack of awareness about menstrual hygiene makes them vulnerable to the diseases arising from it.
Even today in the 21st century, more than half of the women in our country have no access to clean washrooms and they still use cloth and ash during their menstruation. Unavailability of washrooms and long distance between them and their school/college/factory/company force them to drop out.
Education and Career-
Women face tremendous inequality when it comes to access to education and career opportunities. In the majority of rural places, a male child has the privilege to go to school and colleges to gain knowledge; whereas the girl child is forced to stay back to look after household chores because that is what society thinks she is capable of doing. This has resulted in extremely low literacy rates and dropout scale amongst the women in our country.
In 2017, the National Commission for Protection of Child Rights published a report which stated that 39.4% of girls aged 15-18 drop out of school and college. Among the dropouts, 64.8% of girls are coerced into doing household chores. India’s female literacy rate was about 66% in 2018 as compared to the world average of 82.65%, which ranks India even lower than middle and lower-income countries such as Sri Lanka and Zimbabwe. In addition to low female literacy rates, dropout rates among girls reaching secondary education are also high in India.[12]
Along with a low literacy rate amongst women, representation of women in career fields is also significantly low which shows the strike condition of women trapped in gender inequalities in India. Women are considered as housemakers and perceived to be weak as compared to men and cannot take decisions on their own and because of these norms, they are forced to stay back at home. Lack of maternity benefits prevents their consistent participation in the workforce. It was in 2017 when the Maternity Benefit Act of 1961[13] was amended in order to support our women workforce during their pregnancies.
According to research conducted by Zinnov- a global management consulting firm, only 30% of the representation of women is in the corporate sectors of India, with 31% representation in the non-technical category and 26% representation in the technical category. Additionally, this research also shows that in India, only 13% of seats on boards of companies are occupied by women and there are only 11% of senior women leaders in the corporate sector.[14]
This data helps us to understand that women are entering the workforce but their retention rates remain low. [15]
Motherhood is considered as a selfless role in our society, a child always comes first for her mother, her choices, her priorities take a back seat, and eventually, it’s lost as time passes by. Under such social thinking, when a mother steps out to join the workforce, she often faces a public backlash saying that she is a selfish mother, instead of taking care of her kids and family, she is out on the streets- working, and because of this stereotypical thinking, our society thinks that women cannot be the bread-winner of the family and believes in a patriarchal system where the man earns bread!!
Marriage laws of different countries[16]
France- The minimum legal age for marriage is 18. Women and girls could seek refuge at shelters if their parents or guardians threatened them with forced marriage. The government offered educational programs to inform young women of their rights.
Canada- In June 2016, the government passed legislation establishing 16 years as the legal minimum age of marriage. The rate of marriage for individuals under age 18 was unavailable, but early marriages were not known to be a major problem. In June the government criminalized the removal of a child from the country for the purpose of early and forced marriage and created a court-ordered peace bond, which may include surrendering of a passport, to disrupt an attempt to remove a child for that purpose.
Iran – The legal minimum age of marriage for girls is 13, but girls as young as 9 may be married with permission from the court and their father. The law requires court approval for the marriage of boys younger than 15.
Japan- The law stipulates that to marry, the male partner must be 18 or older and the female partner must be 16 or older. A person under 20 may not marry without at least one parent’s approval
Russia- The minimum legal age for marriage is 18 for both men and women. Local authorities may authorize marriage from the age of 16 under certain circumstances, and even earlier in some regions.
Suggestions
- Any change or development is only possible when the change occurs from the grass-root level. Similarly, the thinking of our society should be changed as it forms the grass –root cause of all the evil that exists in our society.
- The concept of gender equality and the right to equal opportunity should be taught in schools and all other institutions that impart knowledge from the basic level. The more our youth will be aware of such concepts, the more responsibly they will act in society.
- Awareness regarding menstruation and menstrual hygiene should be spread throughout, keeping no myths alive.
- Government should look into the matter of educational opportunities for the girl child by increasing quality education.
- Mobile schools can be used. It will be beneficial for those who are not able to reach the school, so the school will reach them.
- Making stricter norms against domestic violence.
- Establishing at least one higher education society in each village, so that education is accessible to all.
- Starting programs to fund the education of girl children.
- Providing menstrual products to women at low prices and eventually making it free of cost, because access to menstrual products comes under their right to life.
- Companies should have – a women’s safe environment, with flexible working hours and sanitation facilities.
- Medical aid centers with proper equipment to be present in each locality.
- The more obstetric and gynecologic workforce in inaccessible areas
- Offer financial incentives to rural health care practitioners and providers of rural obstetric care and reproductive health services, so that they are motivated to provide aid.
- Looking into the loopholes are current laws as mentioned earlier and making the laws strict enough to meet the ends of justice.
Conclusion
From this research, we have understood that a mere increase in age will not be sufficient to end gender inequality and to improve nutrition levels as the government believes. This change might help in breaking social thinking that women mature before men, by allowing them to get married at the same age but we need to understand that the minimum age is not a mandatory age. More child marriages will be criminalized after this resulting in it being counterproductive. Society should understand that economic and social status can be gained by an independent woman as well, there’s no need to force her into a marriage where she becomes a victim of domestic violence and prey to multiple diseases. Increasing the age will deny them their rights until they become 21 which might lead to exploitation by their parents as happens in multiple cases which are reported to the police. Unless and until society doesn’t change its attitude towards the rights of women wherein importance is given to their physical and mental health along with providing equal opportunities to them in the field of education and employment, gender equality would remain a forever dream for our country and an impossible thing to achieve. Hence, the government needs to develop such strategies that will break the stereotypes, improve the culture and will encourage more and more women to get educated, allowing them to dream big, and achieve big.
This paper is authored by – Mahima Srivastava, 1st year student at ILS Law College, Pune.
[1] UN General Assembly, Resolution on Child, early and Forced Marriage, 71/175, 2017, https://undocs.org/pdf?symbol=en/a/res/71/175
[2] Age of Consent Act, 1891
[3] Child Marriage Restraint Act, 1929, Acts of Parliament, 1929
[4] Jagriti Gangopadhyay, Does an Increase in the Legal Age of Marriage for Women Guarantee Equality for Women in India?, 12.1 JILS, 23, 23, (2021).
[5] Prohibition of Child Marriage Act, 2006, sec 2, No. 6, acts of parliament, 2006.
[6] Prohibition of Child Marriage Act, 2006, sec 2, No. 6, acts of parliament, 2006.
[7] UNICEF India, https://www.unicef.org/india/what-we-do/end-child-marriage, (last visited Feb. 18, 2022)
[8] Prohibition of Child Marriage Act, 2006, sec 2, No. 6, acts of parliament, 2006.
[9] Prohibition of Child Marriage Act, 2006, sec 16 sec 17, No. 6, acts of parliament, 2006.
[10] Jagriti Gangopadhyay, Does an Increase in the Legal Age of Marriage for Women Guarantee Equality for Women in India?, 12.1 JILS 23, 28 (2021).
[11] Prohibition of Child Marriage Act, 2006, sec 2, No. 6, acts of parliament, 2006.
[12] Jagriti Gangopadhyay, Does an Increase in the Legal Age of Marriage for Women Guarantee Equality for Women in India?, 12.1 JILS 23, 29, (2021)
[13] Maternity Benefit Act, 1961, No. 53 of 1961, Acts of Parliament, 1961
[14] Zinnov, Zinnov-Intel India Gender Diversity Benchmark Study, Bloomberg, (Feb. 18, 2022, 11:56 PM), https://www.bloomberg.com/press-releases/2019-12-12/zinnov-intel-india-gender-diversity-benchmark-study-released
[15] Jagriti Gangopadhyay, Does an Increase in the Legal Age of Marriage for Women Guarantee Equality for Women in India?, 12.1 JILS, 23, 31, (2021)
[16] Aleksandra Sandstrom and Angelina E. Theodorou, Many countries allow child marriage, Marriage Laws Around the World, 1, 11, 6, 14, 15, 26, (2016), https://assets.pewresearch.org/wp-content/uploads/sites/12/2016/09/FT_Marriage_Age_Appendix_2016_09_08.pdf