Customs and the legal age for marriage

(MainsGS1: Role of women and women’s organization, population and associated issues, poverty and developmental issues, urbanization, their problems and their remedies.)

Context:

• The Supreme Court recently announced that it would examine whether minor girls, as young as 15 years, can marry on the basis of custom or personal law when such marriages are considered an offence in statutory law.

Legal age for marriage:

• The legal age for marriage is 18 years for women and 21 years for men and marriage below this age is considered to be child marriage, and hence an offence. 
• In 2017, the Supreme Court ruled that sexual intercourse by a man with his wife, who is below 18 years, is rape, reading down Exception 2 to Section 375 (rape) of the Indian Penal Code which allowed the husband of a girl child — between 15 and 18 years of age — to have non-consensual sex with her.
• A recent order of the Punjab and Haryana High Court said a girl, on attaining puberty or the age of 15 years and above, could be married on the basis of Muslim personal law, irrespective of the provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Not a judicial precedent:

• A petition in SC filed by the National Commission for Protection of Child Rights (NCPCR) argued that when girls as young as 14 and 15 are being married off, a plea of personal law and custom cannot be used when the POCSO Act and the Indian Penal Code make such marriages an offence. 
• The Supreme Court said the High Court order would not act as a judicial precedent for other courts. 
• The Supreme Court has also appealed to Parliament to lower the age of consent under the POCSO Act and the IPC which set it at 18 years, thus criminalising all adolescent consensual sexual activity.

Personal law in India:

• Last December, the Supreme Court had asked the government to respond to another petition filed by the National Commission for Women (NCW) to make the minimum age of marriage for Muslim women on par with persons belonging to other faiths. 
• The NCW, like the NCPCR, had raised the question whether personal law could override statutory provisions of the POCSO Act and other laws. 
• The NCW petition stated that under the Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and Hindu Marriage Act, 1955, the minimum age of marriage for a man is 21 years and for a woman it is 18 years. 
• However, under the Muslim personal law in India, persons who have attained puberty are eligible to get married i.e. on attaining the age of 15 years, while they are still minors.

Child Marriage in India:

• An analysis of Child Marriage in India based on Census 2011 by Young Lives, India and NCPCR in June 2017 identified 70 districts spread across 13 States including Assam, Bihar, Gujarat, Jharkhand, Karnataka, Madhya Pradesh, Maharashtra, Rajasthan, Uttar Pradesh and West Bengal where prevalence of child marriage is high. 
• According to activists and health workers, targeted interventions including awareness campaigns on reproductive health and provisions of the law, are being carried out to prevent and reduce child marriage, and though NFHS-5 data show improvement, there’s a lot of ground left to be covered. 
• In Jharkhand, according to NFHS-5 (2021), 32.2% women married before they turned 18 compared to 37.9% in 2016 (NFHS 4); in West Bengal, 41.6% women got married before they turned 18 (NFHS-5) and the percentage was the same in NFHS-4; Madhya Pradesh has seen a reduction in child marriage (from 32.4% in NFHS-4 to 23.1% in NFHS-5), though the infant mortality rate is high — 41.3 per 1000 live births.

Effects of early marriage:

• The Young Lives, India-NCPCR study pointed out that girls who got married before turning into adults lacked reproductive choices and were denied a host of other rights, including education, autonomy and often a lack of livelihood. 
• With 59% of Indian girls in the 15-19 group suffering from anaemia early child-bearing could result in poor maternal and child health and poor nutritional status.
• The national percentage of women with 10 or more years of schooling is 41% (NFHS-5) compared to 35.7% in NFHS-4; the data varies from State to State. 
• Case study:In two villages of Birbhum district in West Bengal that the anthropologist Mukulika Banerjee has studied since 1998, she observed that while girls continued to be married off early for a variety of reasons, those that had completed school seemed to be making the radical decision to have only one child. 
• They said they would prefer to raise one child with care, and were able to help them with homework, provide better nutrition and so on.

Way forward:

• Women’s rights activists point out that parents often use the PCMA to punish their daughters who marry against their wishes or elope to evade forced marriages, domestic abuse, and lack of education possibilities. 
• Hence, within a patriarchal setting, it is more likely that the change in the age limit will increase parents’ authority over young adults. 
• A 2008 Law Commission report on family law reform recommended a uniform age of marriage for boys and girls at 18 years and not 21. 
• It held that since 18 is the age at which a citizen can vote, they should be allowed to marry at that age too.