On December 20, 2021, a very crucial bill known as “Prohibition of Child Marriage (Amendment) Bill, 2021Was introduced at Lok Sabha by Ms. Smriti Irani, Union Minister for the Development of Women and Children, to raise the age of marriage for girls from 18 to 21. The âDeclarations of objects and reasonsâ section of the bill specifies the reasons for raising the minimum age for marriage: empowerment of women, gender equality, encouragement of women’s participation in the market work and women’s autonomy. The bill created an uproar in the House because of its inconsistency with personal laws, forcing the government to send it to the Standing Committee of Parliament. However, the opposition and activists have not raised the question of its contradiction with the fundamental right of every human being, namely to marry as they please. The problem is, the government is now overstepping the boundaries of people’s personal lives to achieve its goals without even realizing that its goal cannot be found within those boundaries. The government did not realize that this attempt would end up in vain. On the contrary, the age of marriage for boys set at twenty-one is in itself unconstitutional. Let’s see how.
Crossing borders – Violation of the right to marry freely
Article 21 of the Indian Constitution guarantees the right to life and personal liberty to every citizen. In Anuj Garg v. Hotel Assn. of India, the Supreme Court recognized the right to personal autonomy under Article 21. It was held that it includes both the negative right not to be subject to interference by others and the positive right of individuals to make decisions about their lives. Furthermore, in Shafin Jahan v. Asokan KM, it was held that the right to voluntarily marry is squarely covered by this article. This implies that the decision as to when that person is ready to marry should be left to individuals alone. Once a person reaches the age of majority, i.e. eighteen, they are mature enough to make their life decisions. This threshold is recognized for the purposes of granting the right to vote, liability for illegal acts, conclusion of contracts, etc. Thus, there is no doubt as to the reasons why an eighteen year old is not mature enough to marry out of his will and free will. A person has an inherent fundamental right to marry at their discretion any time after reaching majority. The suppression of this fundamental right as a political decision requires a convincing reason. However, here the government has not relied on any research or studies proving that increasing the age of marriage will empower women.
The target cannot be found within these limits – Why would raising the age of marriage fail in the end?
It is trite to say that the law to prevent child marriage does not work. The age of marriage at 18 was set in 1978, but child marriage did not begin to decline until the 1990s, when the government emphasized primary education for girls and took measures. measures to reduce poverty. This implies that society decides for itself rather than letting the government decide on the age of marriage. It is clear from the fact that when families in rural areas started to lose their jobs during the pandemic, instead, child marriages have increased. The reason is that the factors that prompt families to marry their daughters at an early age still exist and the government should not address these factors.
First, the government is required to control the sociocultural norms, customs and beliefs that shape decisions about marriageable age in India. In some cultures, women are married at an early age in order to assimilate them to other families in their households. It is believed that an early age at marriage can guarantee a bride’s loyalty to her husband’s family. A wider age gap between spouses would also facilitate this “character shaping” of young brides, who are likely to be more sensitive to these practices. Second, is the economic factor. In households with limited resources, girls can be seen as a handicap given the limited economic budget and food security for the entire household. Thus, they believe they are handing over these responsibilities to the husband’s families as soon as they can. The third is the education factor. Undoubtedly, families residing in rural areas are more likely to marry their underage daughters. Availability and access to schools are generally lower in rural areas. It can speed up underage marriage. The fourth is the area of ââresidence factor. Rural areas offer fewer formal employment opportunities for women.
Moreover, surprisingly, it was find that higher education levels do not significantly delay the age of marriage for girls. In this context, education becomes only an asset for marriage. He suggests that completing secondary school improves the social position of girls and also of their families by improving the chances of marrying into a family of higher socioeconomic status. Thus, longer education may also not improve the status of women at the household or societal level.
Thus, it is clear that raising the marriageable age would not change the situation of women as expected.
Uniform age of 18 for men and women
Article 14 of the Indian Constitution guarantees the right to equality of both sexes. Any differential treatment should only be carried out on the basis of reasonable criteria, otherwise it would be declared discriminatory. Surprisingly, the legal age of marriage is 18 for girls and 21 for boys. The minimum age was introduced to abolish child marriage and protect children from exploitation. This difference is based on the assumption that women and men have different growth rates, emotionally, mentally and physically. However, this is not a reasonable test. The Supreme Court in the case Joseph Shine v. Indian union has already argued that “a law that treats women differently on the basis of gender stereotypes is an affront to the dignity of women. Gender stereotypes cannot be considered a reasonable criterion and therefore any legislation adopted on such criteria is unconstitutional. Thus, a uniform, more appropriate age of 18 should be adopted for both sexes.
WWe can safely conclude that for an overall rise in the social status of women, simply raising the minimum age for marriage would not be sufficient as long as the cultures and norms of the society, their educational opportunities, their professional opportunities and the subordinate status of women are not taken into account. . Rather, simply raising the age of marriage would have a negative effect, as families would now perceive an unmarried girl as a âburdenâ, leading to discrimination.
(This opinion piece was co-authored by Prakruthi Jain, a second year law student pursuing a BA LL.B. at NALSAR.)
The opinions expressed above are those of the author.
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