Raising age of marriage sans gender justice

Dr Sobha P V

What women need is not only education till they get married, (as the government conceives it), at 18 or 21 whenever, but they also need to have the dignity of being human, to earn their livelihood, exert relative autonomy, attain decision-making capacity whether to marry or not at all, etc. etc.

Representative image | Photo: AFP

'Age of marriage for women' is debated forcefully in the contemporary-Indian-social terrain. There are strong arguments, pro and against. Most of the 'senior' leaders of progressive women's organizations/feminist groups, who vouch for secularism and democracy, are against raising the age of marriage for women to 21 and most of the religious/community leaderships are also against it or silent about it, for totally different concerns and rationales. Left and minority political wings, in general, are against it and some argue for reducing the age at marriage of men to 18. The law commission of India, which is supposed to advise the Government of India on legal reforms, in its consultation paper on reform of family law in 2018, proposed that the 'the age of majority must be recognized uniformly as the legal age of marriage for men and women alike as is determined by the Indian Majority Act, 1875, i,e. eighteen years of age'. It also argues 'the difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnerships must also be of that between equals.'

Those who are not for this amendment are concerned about the fact that it is being put forward by BJP led Central govt, which has a 'reputation' for acting against the will of the affected people. The trust deficit between the govt and the public is glaringly obvious as the affected people/citizens/minority communities know that the BJP led Central govt has scant regard for the burning issues of their day-to-day lives.

The Central govt is proposing (not simply raising the age of marriage) the introduction of the Prohibition of Child Marriage Amendment Bill 2021 and thereby the amendment of the Indian Christian Marriage Act 1972, Parsi Marriage and Divorce Act 1936, Muslim Personal Law (Shariat) Application Act 1937, Special Marriage Act 1954, Hindu Marriage Act 1955 and Foreign Marriage Act 1956, as per the statement of Smriti Irani, the Minister for Women and Child Development. It is also reported that this bill will be 'enacted' after two years even after the president puts signature to it. There are also speculations that the Central govt has a hidden agenda in trivializing the positioning of certain religious leaderships if people can read between the comment by PM Modi that 'some' fear the amendment. This move, to raise the age of marriage for women, is also suspected by the oppositions as part of the political games of BJP leadership. Furthermore, the available discourse on the whole issue is muddied with the dominating narrative of the mainstream male-oriented perspective.

Internationally, consensus regarding the Rights of Children has already been ensured that children (also) 'have the right to freedom of expression, the right to be protected from all forms of abuse and the right to be protected from harmful traditional practices'. At this moment, it is momentous to refer to the data about the Indian population that 84% of child marriages below the age of 10, is from the Hindu community. The highest number of child marriage rates is in Jharkhand, where almost 68% of the population belong to the Hindu community and the lowest is in Jammu and Kashmir. According to UNICEF, 'Marriage before the age of 18 is a violation of human rights. Many factors interact to place a child at risk of marriage, including poverty, the perception that marriage will provide 'protection', family honour, social norms, customary or religious laws that condone the practice, inadequate legislative framework and the state of the country's civil registration system.' But conventionally, girls are forced to enter the system of marriage much earlier compared to boys. Moreover, traditional marriages are being decided between families and girls especially have little say in the decision making. Girls are supposed 'not to marry' but 'to get married to'.

Representative image | Photo: AP

The fundamental issue regarding the constitution of the four member-task force committee, (constituted in June 2020) as part of the introduction of the Prohibition of Child Marriage Amendment Bill 2021, headed by Ms Jaya Jaitly, is that its terms of reference are very limited, i.e. to examine the correlation of age of marriage and motherhood with the health of the mother and infant as well as key health and population indicators like Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR) Total Fertility Rate (TFR), Sex Ratio at Birth (CSR) etc. along with the suggestions of measures for promoting higher education among women. The concepts discussed here are linked with the role of mother and child and the general health status of women. It is not addressing the secondary status of women in a marriage-wifehood and the disadvantages and underprivilege therein. Hence, it can be discerned that the Central government doesn't want to problematize the secondary sexual status of women in marriage and family in its radical-socio-political terms.

What women need is not only education till they get married, (as the government conceives it), at 18 or 21 whenever, but they also need to have the dignity of being human, to earn their livelihood, exert relative autonomy, attain decision-making capacity whether to marry or not at all, etc. etc. Here, one cannot help thinking that not only the age of marriage or the education provided, but the very marriage provisions in India, consider women as subordinate beings, subservient to men and define man and woman as husband (the governing) and wife (the governed), but not as equal life-partners. Equal life partnership can be conceptualised only through the provision of gender just marriages and gender justice is possible only in a democracy.

Brides interact with each other during a mass marriage ceremony in Ahmedabad | Photo: PTI

It was during 1978 that the age of marriage of women was raised to 18. It is already known that even such a law had never stopped child marriage in India, though it is a crime. After forty years of enforcement of the same, the same arguments such as child marriage increased MMR and IMR malnutrition etc. are the reasons cited to defend the move. This shows during these forty years the political leaderships couldn't find out ways to deal with these serious life and death issues faced by girls and women, as a group. The very institutional provision of 'marriage' itself being patriarchal, sticking on to the single aspect that 'age of marriage of women will strengthen patriarchy' is not a sufficient logic to explain the maintenance/strengthening of androcentricity through 'marriage'. Moreover, the argument that the age of marriage of women at 18 is their right is also contestable for many reasons. Very few women/girls get such decision-making capacity and almost in all cases their parents/family members will be the decision-makers, whether the age of marriage for women is 18 or 21.

Raising the 'age of marriage' directly means that girls get a period of three more years not to engage in a marital relationship. Their increased social space, opportunity to get introduced to the world other than the family atmosphere, openings they get to make friendships with fellow-beings, be it male or female, will certainly support them in making decisions regarding their future lives, provided they are free to decide. If girls/women have the relative autonomy to exert their power in the decision-making process regarding marriage, the increased age of marriage will definitely be supportive as at least they can abstain from entering the marriage for three more years. In many of the earlier law makings, the BJP led government disregarded all the oppositions' contentions but, in this case, they easily succumbed to oppositions' appeals by referring the proposed bill to the Lok Sabha Standing Committee, the Parliamentary Panel for scrutiny.

Consequently, the issue of 'the age of marriage for women' is part of the very complicated social structure that is knitted/tied to and trapped by the very basic androcentricity, mentality internal to the whole-Indian-law system. The basic issue whether the opinion/choice/will of those affected or interested, the young generation girls under 21 years of age especially between 18 and 21 years of age, due to this so-called lawmaking/maintenance, has been taken into consideration or not complicates the context. If at all a referendum among the teenagers and 18-21 aged women is conducted the outcome could predict the social impasse, they are trapped in. In a Democracy, all citizens including teenagers and 18-21 aged women must be empowered enough to decide what all legal provisions they need including the age of marriage.

Special Marriage Act 1954, though provides legal provision for humans of different religions to marry, conceptually resonates with the Hindu Marriage Act 1955. Marriage is being conceptualized as between husband and wife, even in the case of the Special Marriage Act 1954, the premises, wordings, definitions and explanations are carved within the framework of androcentricity.

It is argued that the enhancement of the age of marriage for women to 21 will only strengthen patriarchy. The other side argues that the same will help women empowerment. In a democratic-gender just-marital relationship it is very significant to consider the relative autonomy of the life-partners, their companionate relationships, shared life activities, experiences, sharing of all sorts of resources, fairness in human relations, etc. It must support the beings to exert their sense of freedom, freedom of expression and relative autonomy. What actually 'strengthens patriarchy' is not simply the age of marriage or its maintenance or enhancement.

It has also been argued that this amendment will affect self-choice marriages. It is very pathetic that gender justice-based-legal provision for equal-life-partnership, through civil registration system has not been an issue of concern for the executive, judiciary and parliament till date, though a strong civil registration system had already been conceived as one of the essential prerequisites for ending child marriages. Hence, as human beings/citizens who stand for democracy, freedom and gender/social justice, it needs to conceptualize and provide an all-encompassing Gender Just Civil Marriage Code/procedure, to strengthen self-choice marriages. Though women activists and academics have been voicing for such a law making it goes unheard or unattended by the political leadership in India. Gender Just Civil Marriage Code/Procedure is the most immediate necessity for the reason that only such a Gender Just Civil Marriage provision will rely upon equality, the fundamental right provided by the Constitution of India.

To be specific, it needs power actualization of the affected beings-women-through their own increased sense of awareness and sense of readiness to be the decision-makers of their own life, with enhanced social space. Governments have the responsibility to support women by providing democratic spaces to exert power in actual life situations. At this juncture, it is the responsibility of the State to support the citizens by creating legal provisions for the social legitimization of gender just interventions (also), if at all the democracy has to perpetuate. Hence, gender justice in all walks of life is the need of the day, democracy needs Gender-Just Civil Marriage Code/Procedure and appropriate Civil Registration System (also).

[Dr. Sobha P V is the Secretary at Institute for Social and Ecological Studies (ISES), an NGO based in Kozhikode. Retired Joint Registrar, University of Calicut.]

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