“We have formed a committee to ensure that the daughters are no longer suffering from malnutrition and they are married off at the right age. As soon as the report is submitted, appropriate decisions will be taken about the age of marriage of daughters”
-Prime Minister, Shri Narendra Modi [1]
Since 1978, the legal age of marriage for girls has been 18 years, while the same is 21 years for boys. As per the Indian Majority Act, 1875, the minimum age of marriage is distinct from the age of majority. Recently the Finance Minister of India, Nirmala Sitharaman, revealed in her budget speech[2] on February 1, 2020, that a task force had been implemented to look into the age of a girl entering motherhood and marriage. This may include revising the legal age of marriage for women from 18 years to 21 years – the same as a man’s legal age for marriage.
Table of Contents
Details About the Task Force
The task force or committee which had been set up by Nirmala Sitharaman for the revision of the minimum legal marriageable age of women comprises of 10 members. The task force is to be headed by Jaya Jaitley and includes members such as VK Paul (NITI Aayog’s member) and the Secretaries of Health, Women & Child Development, Law & School Education. Najma Akhtar (New Delhi), Vasudha Kamath (Maharashtra), and Dipti Shah (Gujarat) are also the independent members of the task force.
Significance of the Task Force
Nirmala Sitharaman enforced the task force intending to re-examine the age of motherhood. The age of marriage plays an important role in the age at which women bear children. Furthermore, reducing the Maternal Mortality Rate (MMR) is another key aspect in this regard. This goes hand in hand with increasing the legal age of marriage for women to 21 years as girls who get married around or before the age of 18 undergo a lot of unwanted pregnancies, and are at a greater risk of experiencing Sexually Transmitted Diseases (STDs). Another important factor that was considered in the increasing of the minimum legal age is the need to decrease the high percentage of child marriages that occur in India. India is one of the countries with one of the highest rates of child marriages occurring till the present date. Increasing the minimum legal age may lead to a reduction in the number of citizens engaging and promoting the illegal activity of performing child marriages.
DISSOLUTION OF MUSLIM MARRIAGE
To reduce such sexual or maternal problems, the Government of India seeks to increase the minimum age to get married for women to 21, which is the same age for men. This may help in reducing such problems. Sitharaman said[3], “Girls’ marriageable age was increased from the age of 15 to 18 in 1978 by amending erstwhile Sarda Act of 1929. As India progresses further, opportunities open up for women to pursue higher education and careers. There are essentials of lowering the Maternal Mortality Rate (MMR) and improving nutrition levels. While India’s MMR has declined from 130 in 2014-16 to 122 in 2015-17, it still is not a change that would constitute a major shift or a large decline.[4] The entire issue about the age of a girl entering motherhood needs to be seen in this light. I propose to appoint a task force that will present its recommendations in six months.”
Legal Age of Marriage Throughout the Years
Legal age has gone through a lot of changes and amendments, the most recent one being that of the amendment in 1978 which set the legal marrying age for women at 18 years and that of men at 21 years. Some of the changes[5] regarding the legal age of marriage, as witnessed over the years, are as follows:
- 1860
There was no minimum age of marriage in 1860, but the minimum age of consent for sexual intercourse with a girl below 10 years had been criminalized [6].
- 1891
The Age of Consent Act, 1891, was the first legislation in this regard. It was passed on March 19, 1891, which raised the age of consent for girls to have sexual intercourse from 10 years to 12 years [7].
- 1927
The Age of Consent Act, 1927 amended the provision of rape which invalidated marriages of girls under 12 years of age [8].
- 1929
The Child Marriage Restraint Act was enacted, through which the minimum age of marriage and consent both was foxed at 14. This law is also known as the Sarda Act, named after Harbilas Sarda, who was a judge at the time. This was mainly done to reduce the number of child marriages in India [9].
- 1978
The Child Marriage Restraint Act or the Sarda Act of 1929 was amended in 1978, by which the minimum legal age of marriage was raised from 14 years to 18 years for women and 21 years for men [10].
- 2020
The Indian Government is looking to re-examine the minimum legal age of marriage for women to prevent maternal mortality, sexually transmitted diseases (STD), etc.
Child Marriage and Role of Minimum Legal Age
A study by the UNICEF[11] found that “1.5 million girls under 18 get married in India”, thereby making it home to the largest number of child brides worldwide. Nearly 16 % of girls aged 15 to 19 are currently married in India. The Government’s approach with the increasing of the legal age of marriage for women is that it might help in curbing child marriages to an extent.
The Government’s decision to increase the minimum legal age reflects on the factors of early motherhood, contracting a sexually transmitted disease, the rate of maternal mortality, etc. All of these are factors that stem from child marriages. While the minimum age to get married is set at 18 years for women, there are a lot of child marriages that occur throughout India – most of the reasons cited for the increase of the legal age are the effects of child marriage. The report by the National Family Health Survey of 2015-16 found that 26.8% of women between ages 20-24 were married before the age of 18, even with the existence of the 1978 amendment in the Sarda Act which made marriage with women under the age of 18 years illegal.
Critiques and Response Groups
While on a surface level, the increasing of the minimum age and the formation of the task force may seem like the decision is headed in a positive direction, it is important to note that various issues were raised concerning the increase of the minimum legal age for marriage and whether this was a step in the right direction. Several child rights activists believe that increasing the minimum legal age to get married for women will not have much of an effect on the reduction of child marriages. In fact, they claim that the Government must focus on solving the real issues and look into the factor from which child marriages stem. In fact, Madhu Mehra[12], one of the founders of Partners for Law in Development stated that the Prohibition of Child Marriage Act had originally been designed to protect young women and men, but the same has now been set up in such a way in India that it is now harming the same men and women it was meant to protect.
Additionally, “Young Voices: National Working Group”[13] is a group that was formed on June 26, 2020, in response to the task force set up by the Ministry of Women and Child Development for the revision of the minimum legal age of marriage for women. ‘Young Voices’ has 96 organisations and 2500 participating individuals associated with it across 15 states. They aim to provide a voice to the people being affected by the upcoming amendment, they believe that individuals have a right to be heard on matters affecting them and relating to them. Together, they compiled a report consisting of their concerns regarding the task force and all matters related. One of their main concerns was that increasing the minimum marriageable age may either harm or have zero impact on its own until and unless the root causes of child marriages are addressed.
Abolition of Limited Estate in The Light of Hindu Succession Act, 1956
Present Status of the Task Force
“Centre sets up a task force to examine the age of motherhood, imperatives of lowering maternal mortality rate, improvement of nutritional levels and related issues,” the Ministry of Women and Child Development stated. The Finance Minister, Nirmala Sitharamn, had allotted the task force a period of six months to present its findings and recommendations. The task force formed by the Central Government had to conclude and present its recommendations on July 31, 2020, but the same is still pending.
References
[1] Government to Rethink Minimum Marriage Age for Women available at https://indianexpress.com/article/india/minimum-marriage-age-for-women-narendra-modi-independence-day-address-6556557/ (last visited on September 9, 2020).
[2] The government may relook the age of marriage for women available at https://www.thehindu.com/news/national/government-may-relook-age-of-marriage-for-women/article32364889.ece (last visited on September 9, 2020).
[3] Special Bulletin on Maternal Mortality Rate in India 2015-17 available at https://censusindia.gov.in/vital_statistics/SRS_Bulletins/MMR_Bulletin-2015-17.pdf (last visited on September 12, 2020).
[4] Government Mulls to Rethink Women’s Legal Age for Marriage from 18 to 21 available at https://www.indiatvnews.com/news/india/women-legal-age-for-marriage-india-2020-revise-sharda-act-women-and-child-development-626094 (last visited on September 10).
[5] Sex with minor: 10 years in 1860 to 18 now, how marital rape law changed available at https://www.business-standard.com/article/current-affairs/sex-with-minor-wife-10-yrs-in-1860-to-18-now-how-marital-rape-law-changed-117101101297_1.html (last visited September 12, 2020).
[6] The Indian Penal Code, 1860.
[7] The Age of Consent Act, 1891.
[8] The Age of Consent Act, 1927.
[9] The Child Marriage Restraint Act, 1929 or Sarda Act, 1929.
[10] Child Marriage Restraint Act, 1978 or Sarda Act, 1978.
[11] End Child Marriage available at https://www.unicef.org/india/what-we-do/end-child-marriage#:~:text=Estimates%20suggest%20that%20each%20year,15%2D19%20are%20currently%20married. (last visited on September 12, 2020).
[12] Focus Should Be on Root Causes of Child Marriage available at https://thewire.in/women/marriage-age-women-18-21-children (last visited on September 13, 2020).
[13] Young Voices National Report available at https://www.concernedforworkingchildren.org/news/2020/07/young-voices-national-report-15-states-nearly-2500-young-people-submission-to-the-task-force-examining-age-of-marriage-and-other-concerns-july-2020/?fbclid=IwAR1al688Z3m-4MZuUgzcjey4iuZlcRt_EUpGKDNkZMPgGTLwvoszutluN9g (last visited September 14, 2020).
BY- Pooja Bommareddy | O.P Jindal Global Law School