A woman was brutally gang-raped in front of her
husband for raising her voice against child marriage. Such was the case of
Vishakha v. State of Rajasthan in which the woman (Ms. Bhanwari Devi) fought
for more than 2 decades to be able to put her rapists behind the bar. There are numerous cases highlighting the crimes which are committed in order to follow
the so-called tradition of child marriage. The TV programmes like Balika Vadhu
and movies like Bulbbul give us a glimpse of how people so willingly marry
their little daughters due to reasons that range from relieving oneself
from liability to practising traditions blindly.
At a tender age, a girl child is married to a complete stranger who not only traps her wishes of studying further or standing up on her feet
but is also detrimental to her health, both mental and physical. According to
NCRB Report, there is a 50% rise in cases of child marriage in the year 2020, and
785 cases were filed under the Prohibition of Child Marriage Act [“PCM Act”].
The factors which accentuate child marriages include (i) the fertile age of
women (which is 45 years on average); (ii) the “burden” factor which
considers her a liability in her maternal house; (iii) poverty; (iv) other
reasons germane to the 19th century such as risks of her being raped or
abducted before marriage when there were no stable law and order enforcement
mechanisms.
In previous
times, child marriage was a normal practice that superseded the right to
education and health for girls. Marriage is a union in which a person looks
for companionship that does not just require physical capabilities but also
maturity and understanding, these being the most essential elements of the
bond. This might be one of the reasons which resulted in the introduction of a ban on child marriage with the help of legislation such as the Prohibition of
Child Marriage Act and also stipulating the minimum age of marriage to be one
of the requirements of a valid marriage under the Hindu Marriage Act, 1955,
Indian Christian Marriage Act, 1936 and Parsi Marriage and Divorce Act,
1988.
We have a habit
of criticizing the traditions and ancient practices of India; however, most of
those practices, in reality, reflect open-mindedness instead of orthodox
thinking. The traces of Indus Valley Civilisation indicate that our country
used to follow matriarchy where women were the heads of their households and it
was men who used to leave their houses to stay with their wives after marriage.
Regarding the age of marriage, during the Vedic period, Child marriages were not
prevalent and the minimum age of marriage was 16 years which was then reduced
to around 10 years after the onset of orthodox Hinduism. With the introduction
of the Child Marriage Restraint Act, 1929, child marriages were banned and after
the amendment in the year 1978, the minimum age was increased to 18 years for
females and 21 years for males. The present legislation for this purpose is PCM
Act which replaced the 1929 Act.
However, it is
still controversial whether the PCM Act overrides personal laws or not.
This is the reason why there have been so many conflicting High Court opinions
in cases pertaining to a Muslim couple. Under Mohammedan law, a person is
capable of marriage upon attaining the age of puberty which is presumed to be 15
years, and till now situation is not clear whether the legal age of
marriage in the case of Muslim boys and girls is considered 21 years and 18 years
respectively or not.
This unsettled
aspect coupled with the voidable and not illegal nature of child marriages
makes PCM Act insufficient to curb child marriages. Additionally, several
provisions under other statutes contain phrases that provide for or prima
facie presume child marriages to be a normal practice. For an instance, the exception to Section 375 of the IPC legalises marital rape when the wife is of
15 years and above, thereby, accepting the prevalence of child marriages in
India.
Another question
that is important to raise at this point is what is the rationale behind
different ages of marriage for males and females? There are a few nations in
the world that create this distinction; some of them are Afghanistan, Armenia,
Bangladesh, Cameroon, China, Congo, India, Indonesia, and Vietnam. The first
reason relates to the patriarchal notion according to the wife should be
younger than her husband. Although nowadays this conception is being breached
profusely, this pattern could be noticed more commonly in the lives of
celebrities or couples performing love marriages than in arranged marriages
which still form the major chunk of marriages performed in India. The second reason
is the stereotype that girls mature faster than boys which is again a
product of patriarchy. In order to make their daughters “wifey material”
society showers huge responsibilities of the household on their shoulders and
then calls them intellectually mature. Even CEDAW provides for banning laws
that assume that women have a different physical or intellectual rate of
growth than men.
A new proposal in the form of the Prohibition of Child Marriage (Amendment) Bill, 2021 has
been introduced which aims at increasing the age of marriage for
girls to 21 years in order to tackle the problem of child marriages. It is the opinion of the advocates of this proposal that
this change would ensure the right to equality, dignity, education, and safe
health for the girls of the country. Undoubtedly, this amendment would be a step
towards the empowerment of girls in the wake of more time for their education and
lesser health-related risks owing to premature pregnancies and mental stress.
Simultaneously, it gives rise to a major concern i.e. the already crippling effect of the
PCM Act. This amendment which seeks to promote gender neutrality in marriageable age, despite being a
progressive move will do no good in eliminating the ineffectiveness of the PCM
Act. Thus, removing the distinction in
marriageable age would somehow decline the rudimentary thinking according to
which bride should be younger than her groom and would also propel the health
and education factors as opined by the proponents of this proposal but the
assumption that it would accelerate the process of abolishing child marriages
in India is difficult to accept. The supporters of child marriage will not shy
away from marrying their children even after the alteration of the law and the
effect of this amendment would also be limited, away from the communities or
section of society who really need it. Therefore, on one hand, the bill is removing gender inequality to an extent for all Indians irrespective of their religion by making the marriageable age uniform across all communities but its attempts of eliminating the evil of child marriages from India still seem to be implausible. Child marriages are pulling down the
development and empowerment of girls in several corners of the country and it has to be treated on the ground level with collective awareness together with
awareness on a personal level.
Well Explained
ReplyDeleteAmazing blog...thanks for sharing it
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