22 Dec 2021 8:46 AM GMT
The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in the Lok Sabha on 21.12.2021 to raise the marriageable age of women from 18 years to 21 years.The Bill does indeed paint a rosy picture for women empowerment with its claim to further the cause of gender equality, however, much like everything else in life, this Bill too needs to be looked at and interpreted...
The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in the Lok Sabha on 21.12.2021 to raise the marriageable age of women from 18 years to 21 years.The Bill does indeed paint a rosy picture for women empowerment with its claim to further the cause of gender equality, however, much like everything else in life, this Bill too needs to be looked at and interpreted in the context of the societal norms that prevail in our country.
Statement Of Objects And Reasons Of The Bill
A bare perusal the statement of objects and reasons of this Bill, clearly shows that this Bill is just a convenient step taken by the Government to avoid addressing the Problems that obstruct the overall development of women. The statement of objects and reasons of the instant Bill are as follows:
The instant Bill fails to explain how raising the age of marriage would address the problem of gender discrimination that exists in our society. For example, when it comes to higher education the primary if not only reason because of which parents fail to provide the same to their daughters, is poverty. The other reason is illiteracy, closely followed by the fear of lack of safety. In a country where a girl is raped every 15 minutes implementing adequate safety measures is the need of the hour. Similarly, only through education can the problem of gender bias be addressed. Till the existing biases and taboos that stem from the patriarchal set up of our society, are not addressed through education and awareness schemes, families will continue to deny women the opportunity of "entering into employment sphere and being part of the workforce."
It will not be out of place to point out that the constitutional mandate that this Bill will in fact violate is the right of adult women wishing to marry of their own will. In the case of Ashok Kumar Todi v. Kiswhwar Jahan (2011 3 SCC758) the Supreme Court had held that where a boy and a girl married on their own will and were majors and the marriage was duly registered under the notified authority. The police officials have no role in their conjugal affairs and the law enforcing authorities have no right to interfere with their married life and, in fact they are duty bound to prevent others who interfere in their married life."
In the context of the claim that this Bill will serve to lower the maternal mortality rate as well the infant mortality rate notice needs to be taken of the Memorandum toTask Force Set Up to Examine Age of Motherhood and Related Issuessent by more than 40 NGO's and activists associated with issues of women's rights wherein it was pointed out that "Poverty – not early marriage – is the main cause of the ill health of mothers and their children….When correlations are established between greater health risks to mother and child at younger ages of marriage, this needs to be understood carefully. First of all, the age of 18 years has been scientifically determined to be the age at which most women's reproductive systems are fully developed. Healthy women at this age with adequate pre-natal care can be expected to give birth to healthy babies. However, countries like India are highly unequal, with widespread malnourishment among women, and poor access to health care in several regions. Early marriage predominates among the poorer and more marginalized communities, while women from wealthier backgrounds marry at higher ages. Therefore, statistically speaking, if only age at marriage is looked at in relation to the health indicators of mother and child, one forgets that poorer women are over represented at younger ages. When analysed, NFHS 4 data shows quite clearly that once different factors are disaggregated (such as age, poverty, educational attainment and so on) it is poverty that is playing an overwhelming role in the health of mothers (even at higher ages of marriage such as 21 years) and much more so than mere age. Age is the least significant factor and poverty the greatest."
Instead of opting for increasing of marriageable age that will, in all likelihood, create additional hurdles in the path of consenting adults who wish to get married, the Government needs to prioritize education amongst women and awareness of gender equality amongst men. Poverty and illiteracy continue to be the biggest causes of child marriages, female foeticide, dowry deaths and other gender inequality related issues. What the women of this country need, rather urgently, is for the Government to implement welfare schemes and policies such as Kishori Shakti Yojana and Sabala that focus on the improvement of nutrition, health and development, skills and vocation of adolescent girls.
It is well known that 18 is the universally recognized marriageable age for both men and women. Even as per the Convention on the Elimination of All Forms of Discrimination Against Women the age of marriage is 18 years. The discrimination against women that is sought to be addressed through this Bill will hardly be addressed by increasing the age of marriage.
The objective behind the Prohibition of Child Marriage Act, 2006 was to provide for the prohibition of solemnisation of child marriages. However, despite having a statute in place, India is estimated to have over 24 million child brides. According to the International Centre for Research on Women, India has the 14th highest rate of child marriage in the world.
Further as per the National Family Health Survey-5 there has been an increase in child marriages in Manipur (16.3% from 13.7% in 2015-16), Tripura (40.1% from 33.1% in 2015-16), and Assam (31.8% from 30.8 % in 2015-16).
Thus, clearly, having a certain legal age for marriage does not ward off the practice of child marriage that can only be tackled through extension of the right to free and compulsory education and provision of employment opportunities to women.
A major fallout of increasing the marriageable age of women from 18 to 21 years is that it undermines the decision-making capabilities qua marriage of both men and women. The Law Commission report published in 2008 had recommended the reduction of the marriageable age of men to 18 years so as to bring parity between the legal marriageable ages of men and women.
When an individual attains 18 years of age, she is considered to be an "adult". This entails that she is legally capable of voting, buying property, entering into agreements and so on. Why does this freedom need to be curtailed when it comes to deciding when she should get married? Doesn't the fact that a woman is an adult and capable of exercising her will to vote, serve as enough evidence that she certainly has, at her command, the necessary wisdom and prudence to decide when she wants to get married?
Disrespecting the Agency of women:
Lastly, in a society that is still grappling with problems of female foeticide and child marriages, one societal belief becomes crystal clear – a daughter is parayadhan and a liability that needs to be handed over as soon as possible. Now, with this in mind, the most basic thing that is needed to defeat the evils of gender inequality is to cultivate a value system based on respect for women and viewing them, at the least, as equals. The sine qua non for this value system would be the recognition and acceptance of the agency of women.
It is not unknown that freedom of choice available to women gets reduced considerably because of societal pressures. For instance, the most difficult exercise for young adults in our country is that of choosing a partner because the same is subjected to restrictions of caste, religion, language etc. So stringent are these restrictions that their violation often results in murder of their own daughter by her family also ironically known as "honour killing". Instead of protecting the agency of women by giving them the freedom and space to choose a life partner, State Governments are busy passing love-jihad laws, making it next to impossible for inter-religion marriages to take place.
There are innumerable examples of families abusing laws to simply annul, primarily, inter-caste or inter-religion marriages. The laws so abused include seeking nullification under the Prohibition of Child Marriage Act, making false allegations of kidnapping and rape under the Protection of Children from Sexual Offences Act & Indian Penal Code. The present Bill will also be susceptible to similar patterns of abuse by parents and family members displeased with their daughter's choice of partner.
The Bill, it seems, is more of a public pleasing attempt than a genuine effort to address serious issues of gender discrimination, child marriages, female foeticide, maternal mortality, women safety etc. Addressing these issues would require the government to proactively implement women centred welfare schemes, ensure easy access to education and spread social awareness to address the evil of patriarchy that is deeply entrenched in our society.
In conclusion it is apt to keep in mind that the interference of the State in personal choices of food, drink, marriage, worship etc. must be kept to a minimal especially in a liberal and democratic country that promises to honour & protect the basic fundamental rights of its citizens.
The author is an Advocate practicing at Supreme Court of India.Views are personal.