MARRIAGE AT TWENTY-ONE- ONE STEP FORWARD OR TWO STEPS BACK?

Neena Teresa Varghese, 5th year student at the National University of Advanced Legal Studies (NUALS), Kochi

Introduction

The recent decision of the Government to increase the minimum age for marriage of women to twenty-one from eighteen was met with widespread appreciation. Considered a laudable step towards achieving ‘Aatmanirbhar’ for women, the decision resonated with various interest groups. However, the decision has also been subjected to serious criticism as well, for focusing attention on the age of marriage rather than on empowerment measures such as access to education and healthcare. A myriad of social causes and rationale exist for the marriageable age of women being increased to twenty-one. However, these are subjective, and a conclusive answer as to whether this move by the Government would positively impact women cannot be answered in black and white. But the various legal issues that form the crux of this issue cannot be ignored in the wake of the overflowing positive social reaction.

Red Flags

First, increasing the minimum age for marriage for women to twenty is likely to have minimal or substantially no impact on the reducing child marriages in India. The Prohibition of Child Marriage Act was enacted in 2006 but the minimum age for marriage has been eighteen ever since the Child Marriage Restraint Act, 1929 was amended in 1978. Even so, United Nations statistics indicate that India has the largest number of child brides in the word, serving as proof of the fact that the Act has not been able to serve its purpose or protect those it was intended to protect. Further, the pandemic has exacerbated the plight of adolescent girls in India. Therefore, in such a scenario, it is difficult to give merit to the aspiration that this will bring down child marriages in India. The provisions of the Prohibition of Child Marriage Act, 2006 render child marriages merely voidable at the option of the wronged party, and not null and void. This would imply that child marriages are merely irregular and such a defect can be rectified at the choosing of the minor spouse. Though the rationale behind such a provision can be found in India’s socio-cultural roots, it effectively weakens the enforcement of the Act. Therefore, merely increasing the minimum age of marriage to twenty-one cannot be expected to have a bearing on the quantum of child marriages in India. A marriage involving a minor under eighteen years of age and one involving someone under twenty-one years of age are both merely voidable at the option of the wronged party. Hence, increasing the minimum age of marriage for women cannot be expected to act as deterrent given that there are catalysts or facilitators to effect this change.

Secondly, increasing the minimum age of marriage has a profound negative impact on the personal autonomy of women. The popular phrase that has been used in this context, “is she can vote at eighteen, why can’t she marry at eighteen?” hits the right note. In India, a person attains legal majority at the age of eighteen, meaning that they can vote, enter into contracts, obtain a driver’s license, be judged and punished as an adult etc. Even though umpteen social causes can be cited for increasing the minimum age of marriage for women, when it comes to the legal sphere, this differentiation simply does not make sense. Another facet that cannot be ignored is the fact that increasing the minimum age of marriage from eighteen to twenty-one takes away the protection of a legal marriage that would have been afforded to girls who are married off before attaining twenty-one years of age.

Thirdly, though it has been extensively argued that increasing the minimum marriage age of women to twenty-one is a giant leap towards ensuring equality between the two sexes, it has to be seen from a wider prism. Even though this appears to be a positive step in the right direction, it has to be noted that a higher minimum marriage age for both sexes is directly infringing on the personal autonomy of a person, and reflects badly on the country’s image in an international setting. Further, several socio-political reasons resulted in the minimum age for marriage for men being set at 21 including population control measures, unscientific and outdated beliefs that men attain maturity later than women do and the social construct that wives must be younger than their husbands. Therefore, it being difficult to find intelligible differentia in the marriageable age of men being set at twenty-one in the present backdrop, the same being applied in the case of women is not as liberating as one would think.

Fourthly, there is widespread criticism that distressed parents are misusing the constitutional remedy of habeas corpus and other like provisions to separate daughters from their chosen partners. In this light, the possibility that increasing the marriageable age for women might take away more of their freedom cannot be brushed aside. Though this argument is rather farfetched, it rests on the primary assertion that personal autonomy cannot be taken away under the guise of protection, and hence, warrants consideration. The increase of the minimum marriage age of women to twenty-one, in this scenario, has two sides: women may not be forced into a marriage until they turn twenty-one; and women who want to enter into a valid marriage may be prevented from doing so until they turn twenty-one. Though it may be argued that the former trumps all other considerations, any obstacle that stands in the way of a person wanting to choose their own partners is a infringement on the constitutional guarantee of person liberty.

Finally, increasing the minimum age for marriage of women to twenty-one is not in accordance with internationally mandated standards. International instruments such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child and the like prescribe eighteen years as the minimum age for marriage of women, and by deviating from such standards, India is attempting to find a solution without addressing the root cause of the problem.

Conclusion

Women’s rights have undergone radical changes in the past few years, and the Indian judiciary has played a huge role in this. India has witnessed both sides of this coin, from the ruling that sexual relations with a minor wife is rape, a decision that was widely appreciated, to a rape accused being granted bail despite a clear prima facie case merely on the finding of the court that the accused was ‘the State’s future asset’ and a ‘talented student’, a decision that was met with utter shock and dismay, Indian jurisprudence on the matter is incredibly dynamic, and sometimes disappointing. The onus is on the judiciary as well as the executive to work with what it has now to better the lives of one of the most vulnerable groups of the nation, women.