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Cabinet nod for Raising legal age of marriage for women to 21

The Centre has decided to raise the legal age of marriage of women from 18 to 21 years – The Prohibition of Child Marriage (Amendment) Bill, 2021, amends the definition of child to mean “a male or female who has not completed twenty-one years of age”.

Relevance:

GS-I: Indian Society, GS-II: Social Justice and Governance (Issues related to women and children, Government Initiatives and Schemes)

Dimensions of the Article:

  1. How prevalent is underage marriage?
  2. Significance of Child-marriage in India
  3. Why is child-marriage still prevalent?
  4. About the legal provisions regarding Minimum Age for Marriage
  5. Different Religions and their Minimum Age of marriage
  6. Amendments to marriage age contradicting ‘age criteria’ of other laws
  7. Need for updating the minimum age for marriage
  8. What is the Jaya Jaitly committee?
  9. Benefits in increasing the age of marriage for girls
  10. How does the age of marriage correlate with health?
  11. Issues with focusing only on increasing Minimum Age for Marriage
  12. What have critics said about raising the age of marriage?

How prevalent is underage marriage?

  • In India, Child-marriage is the marriage of a girl or boy before the age of 18 and refers to both formal marriages and informal unions in which children under the age of 18 live with a partner as if married.
  • Data show that the majority of women in India marry after the age of 21.
  • Although, the mean age of women at marriage is 22.1 years, and more than 21 in all states- this does not mean that child marriages have disappeared.
  • The National Family Health Survey (NFHS-4) found that about 26.8% of women aged 20-24 were married before adulthood (age 18).
  • United Nations Children’s Fund (UNICEF) estimates suggest that each year, at least 1.5 million girls under 18 get married in India, which makes it home to the largest number of child brides in the world – accounting for a third of the global total.
  • Recent study by The Lancet shows that up to 2.5 million more girls (below the age of 18) around the world are at risk of marriage in the next 5 years because of the Covid-19 pandemic.
Age for Legal marriage in different Countries 20 in China for Girls 22 for Boys and Increasing age of marriage for women to 21 Legal age of marriage for women to 21
Number of Child Marriages in Karnataka Increased during Covid-19 lock down and the need for increasing age of marriage for women to 21 Legal age of marriage for women to 21

Significance of Child-marriage in India

  • Child Marriage contributes to larger families and in turn, population growth. This delays the demographic dividend that would have come from reduced fertility and investment in education.
  • Children married at a young age do not understand the responsibilities of marriage. This results in a lack of understanding among family members. Hence, disturbs the institution of the family.
  • It negatively influences children’s rights to education, health and protection as a girl who is married as a child is more likely to be out of school and not earn money and contribute to the community.
  • A girl married at such a young age is more likely to experience domestic violence and become infected with HIV/AIDS and also there are more chances of her dying due to complications during pregnancy and childbirth.

Why is child-marriage still prevalent?

  • The primary reasons for the prevalence of Child-marriage are:
    • Poverty and other financial reasons,
    • Lack of education and awareness,
    • Patriarchal norms in the society and external pressure on the family resulting from it,
    • Cultural norms and practices in certain cases,
    • Skewed gender ratio in the population in certain cases,
    • Gender inequalities and beliefs connected to these inequalities,
    • Perceived Security Concerns regarding raising a girl child,
    • Lack of awareness regarding opportunities and beliefs of Limited Access to Education and Economic Prospects, etc.
  • Some parents consider the age period of 15-18 as unproductive, especially for girls, so they start finding a match for their child during this age period.
  • Law and Order are still not able to provide a secure environment for the girls in adolescent age, so some parents get their girl child married at a young age.
  • The Right to Education Act makes education free and compulsory up to the age of 14 only – pointing towards inadequacy in the compulsory norm.

About the legal provisions regarding Minimum Age for Marriage

How age limits came to be where they are now?

  • The Indian Penal Code in 1860 criminalised sexual intercourse with a girl below the age of 10, introducing the first legal framework for a minimum age of consent for girls.
  • Increasing the age by even just two years to 12 in the Age of Consent Bill in 1927 was opposed by many nationalists who saw the move as imperial interference with local customs.
  • In 1929, the barrier was further raised to outlaw marriage of girls below 16. From then, it took nearly five decades to bring the law to its current standard of 18 years for women and 21 for men.
  • In India, the minimum age of marriage was prescribed for the first time by the law known as the Sarda Act, 1929. It was later renamed as the Child Marriage Restraint Act (CMRA), 1929.
  • In 1978, the law was amended to raise the minimum age of marriage to 18 years for girls and 21 years for boys.
  • This position remains the same even in the new law called the Prohibition of Child Marriages Act (PCMA), 2006, which replaced the CMRA ,1929.

Different Religions and their Minimum Age of marriage

  • For Hindus, The Hindu Marriage Act, 1955 sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom.
  • In Islam, the marriage of a minor who has attained puberty is considered valid.
  • The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men, respectively.
  • For the new age of marriage to be implemented, these laws are expected to be amended.

Amendments to marriage age contradicting ‘age criteria’ of other laws

  • The Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to raise the age of marriage for women to 21 years, amends the definition of child to mean “a male or female who has not completed twenty-one years of age”. It over-rides personal laws of Hindus, Christians, Muslims and Parsis, as well as the Special Marriage Act, 1954.
  • The 61st Constitutional Amendment Act of 1988 defines the voting age for elections to the Parliament and Legislative Assemblies as 18 years.
  • The Majority Act, 1875, defines the age of majority as “”the age of eighteen years and not before”, and as 21 years if a guardian is appointed.
  • Under the Indian Contract Act, 1872 a person should have attained the age of majority in order to be able to enter into a contract.
  • The law to punish sexual crimes against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012 too recognises a child as someone under the age of 18 and thereby implies that the age of consent for sex is also 18 years.
  • The Juvenile Justice (Care and Protection) Act, 2015 also recognises a child as someone under the age of 18.
  • Under the Right of Children to Free and Compulsory Education, 2009 that guarantees access to education, a child is someone between the ages of six to 14 years.
  • Under the anti-child labour law or the Child Labour (Prohibition and Regulation) Amendment Act, 2016, which prohibits the engagement of children in all occupations and bans adolescents in hazardous occupations, a child is someone under 14 years of age an adolescent means someone between the age of 14 to 18 years.
  • Hence, it can be argued that at one level, we say that the age to enter into contracts and to vote is 18 years. We are recognising that a person has the mental capacity to make decisions that will affect her life commercially or as a citizen, but at the same time when it comes to her personal life, she doesn’t have the right to make decisions. – However, it can also be said that “Age doesn’t have to be the same for everything.”
Defining who is a child and most laws fix the age of child as 18 and age of marriage for women to 21 will contradict these laws Legal age of marriage for women to 21

UN’s recognition of adolescents

The United Nations Convention on the Rights of the Child on the implementation of the rights of the child during adolescence  says that “any investment in young people risks being wasted if their rights throughout adolescence do not also receive adequate attention and investment that is needed to address the societal drivers serving to exclude and marginalize them [adolescents]”.

Need for updating the minimum age for marriage

I- Improve Female Health

  • According to a United Nations Population Fund report, India is home to one in three child brides in the world.
  • Early marriages causing early pregnancies are inherently linked to higher rates of malnourishment, maternal and infant mortality.
  • Although maternal mortality rate has been declining, the move to increase the minimum age of marriage could boost the fight.

II- Keeping up the promise of equality made to women under the Constitution

  • There is no reason why the law makes the presumption that the minimum age of marriage must be different for men and women.
  • It perpetuates benevolent sexism or the stereotype that women are more mature and therefore, can be given greater responsibilities at a younger age in comparison to men.
  • The reflection of patriarchy in personal laws must change to fit the framework of the Constitution.

What is the Jaya Jaitly committee?

  • In June 2020, the Ministry for Women and Child Development set up a task force to look into the correlation between the age of marriage with issues of women’s nutrition, prevalence of anemia, IMR, MMR and other social indices.
  • The committee, headed by former Samata Party president Jaya Jaitly, also had on board NITI Aayog member (Health) Dr V K Paul and secretaries of several ministries.
  • The committee was to look at the feasibility of increasing the age of marriage for women to 21 and its implication on women and child health, as well as how to increase access to education for women. The committee was to also recommend a timeline by which the government could roll out the implementation of the policy, as well as the amendments that would need to be made in existing laws in order for this to happen.

What did the committee recommend?

  • The committee has recommended the age of marriage be increased to 21 years, on the basis of feedback they received from young adults from 16 universities across the country.
  • The committee also asked the government to look into increasing access to schools and colleges for girls, including their
  • transportation to these institutes from far-flung areas. Skill and business training has also been recommended, as has sex education in schools.
  • The committee said these deliveries must come first, as, unless they are implemented and women are empowered, the law will not be as effective.
  • The committee has further recommended that an awareness campaign be undertaken on a massive scale on the increase in age of marriage, and to encourage social acceptance of the new legislation, which they have said would be far more effective than coercive measures.

Benefits in increasing the age of marriage for girls

  • The poverty of the mother plays the greatest role of all by far — both in relation to her undernourishment and that of her child. An early age of marriage, and consequent early pregnancies, also have impacts on nutritional levels of mothers and their children, and their overall health and mental wellbeing.
  • The mother’s age at childbearing affects educational level, living conditions, health conditions, decision-making power of women.
  • India is home to the largest number of underage marriages in the world. The law will help to curb the menace of Child Marriage.

How does the age of marriage correlate with health?

  • Preventing early marriage can reduce the maternal mortality ratio and infant mortality ratio.
  • As of 2018 data, the maternal mortality ratio — the number of maternal deaths for every 100,000 children born — is 113 – dropping from 122 in 2016.
  • India’s infant mortality ratio shows that 30 of every 1,000 children born in a year die before the age of one.
  • Both these indicators in India are the highest among the BRICS economies.
  • Also, young mothers are more susceptible to anaemia- more than half the women of reproductive age (15-49 years) in India are anaemic.
  • The prevalence of anaemia among women has consistently been high over the last 20 years.
Nutrition and Education factors in Age of Women Increasing age of marriage for women to 21 Wealth and Marriage age Education and Marriage age in different States Anaemic Women Legal age of marriage for women to 21

Issues with focusing only on increasing Minimum Age for Marriage

  • Poverty, Limited Access to Education and Economic Prospects, and Security Concerns are the known reasons for early marriage. If the main causes of early marriage are not addressed, a law will not be enough to delay marriage among girls.
  • Many believe that merely tweaking the official age of marriage may discriminate against the poorer, less-educated and marginalised women, because:
    • Women in the poorest 20% of the population married much younger than the women from the wealthiest 20%.
    • According to the State of the World Report 2020 by UNFPA, in India, 51% of young women with no education and 47% of those with only a primary education had married by age 18.
    • Further, a study by the International Centre for Research on Women has found that girls out of school are 3.4 times more likely to be married or have their marriage already fixed than girls who are still in school.
    • The average age at marriage of women with no schooling was 17.6, considerably lower than that for women educated beyond class 12.
    • Almost 40% of girls aged 15-18 do not attend school, as per a report of the National Commission for Protection of Child Rights.
    • Nearly 65% of these girls aged 15-18 who do not attend school, are engaged in non-remunerative work.

Difficulty in Fighting Child Marriage

  • The implementation of the child marriage law is difficult.
  • The evidence suggests that when the law is used, it is mostly to penalise young adults for self-arranged marriages. The law to prevent child marriage does not work very well.
  • While child marriage has declined, it has been marginal: from 27% in 2015-16 to 23% in 2019-20, according to National Family Health Survey (NFHS) 5.
  • 70% of early marriages take place in deprived communities such as Scheduled Castes and Scheduled Tribes, and the law will simply push these marriages underground instead of preventing them.

What have critics said about raising the age of marriage?

  • Child and women’s rights activists, as well as population and family planning experts have not been in favour of increasing the age of marriage for women on the basis that such a legislation would push a large portion of the population into illegal marriages.
  • The change will leave the vast majority of Indian women who marry before they are 21 without the legal protections that the institution of marriage otherwise provides, and make their families criminalisable.
  • They have contended that even with the legal age of marriage for women being kept at 18 years, child marriages continue in India and a decrease in such marriages has not been because of the existing law but because of increase in girl’s education and employment opportunities.
  • They have said the law would end up being coercive, and in particular negatively impact marginalised communities, such as the Scheduled Caste and Scheduled Tribes, making them law-breakers.

-Source: The Hindu, Indian Express, Livemint, Hindustan Times

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