Age of Consent for Marriage

What must be the ideal age for boys and girls to enter into marital relationship? This question seems simple but the coherent answer to it requires deeper analysis of varied associated factors. In Indian society, girls are often raised with the presumption of paraya dhan (belonging to other person) and require to be married off at the earliest. It is very common that girls often at the age of receiving education for realization of their dreams are forcefully pushed towards marital relationships in the guise of societal pressure.

The legal age for marriage has been provided for both girls and boys as 18 and 21 respectively under Prohibition of Child Marriage Act, 2006. Despite existing legal frameworks to put check on child marriages, recent study by UNICEF in 2018 has estimated that at least 1.5 million girls below the minimum age of 18 years are married in India, making our country top with the largest number of child brides in the world[1]. This paper intends to provide deeper insights on minimum age of consent for marriage for both boys and girls to put check upon the rising child marriages cases in India.

Evolution Of Law

The power of consent to marriage signifies the freedom of personhood provided to adult persons to freely choose their life partners at their will. In the Vedic Period, women were provided with equal opportunities along with en for active participation in religious ceremonies[2]. They enjoyed decisive freedom in choosing their husband and were allowed to enter in marriage life as fully mature and grown up.

But, with the passage of time, the status and position of women in India gradually declined to merely as ‘child-bearers’ and article of enjoyment only. Pre-puberty marriages became common in the medieval period with the invasion of Mughals[3] and fathers of child brides were entrusted with responsibility of early child marriages to protect the chastity of women. The freedom of consent for marriage was never provided essential importance until the miseries of child-wives worsened to lowest depth of degradation[4].

The nationwide campaign in the early 18th century against child marriage and widow marriage by various social reform movements ignited the need for legislative measures on age of consent for marriage[5]. The Indian Penal Code was amended in 1860 providing for penal offence for consummation of marriage with the brides below the age of 10 years[6].

Even this provision was proved to be ineffective; it helped in paving the way for fixing the age of marriage at a higher level. Realizing the adverse impacts of child marriage, various native states of India tried to provide wider scope for minimum age of marriage through enacting legislations.

Mysore became the first state for providing punishment for negation of age rule for preventing early child marriages[7]. On similar basis, various other states including Kochi, Rajkot, Kota and Indore enacted similar legislations in the early 20th century[8]. But lack of uniformity in varied legislations called for a central legislative action governing different personal laws in India.

The Age of Consent Committee, also known as Joshi Committee was entrusted with formulating central legislation to deal with the question of minimum age of marriage. It suggested that age of consent under IPC should be raised to 15 and opined that legislation penalizing marriage below a minimum age was essential for efficient working of law of consent[9]. The Child Marriage Restraint Act was enacted in 1929 setting the minimum marriageable age of men and women as 14 and 18 years respectively.

It is also known as Sarda Act, named after Harbilas Sarda – a member of Arya Samaj who effectively fought against the menace of early child marriages in India. The Act does not invalidated child marriage but only imposes restrictions of solemnization of child marriage. The Indian courts have reiterated its stand in various judgements stating that legal status of child marriage remains outside the purview of Sarda Act[10].

In 1954, Special Marriage Act was passed under which Indian people as well as Indian nationals in foreign countries have the right to marry any person of their choice irrespective of religion or faith followed by either of them. In 1978, the Sarda Act was amended which increased the legal minimum age of marriage of both women and men as 18 and 21 years respectively. The government has also enacted Prohibition of Child Marriage Act, 2006 replacing the erstwhile Sharda Act to provide for more enabling provisions to prohibit child marriage and provide appropriate relief to victim and punishments who promote or solemnize such marriages.

Differential Age Contributing To Patriarchal Power Dynamics

The ideal social construct of women has always been portrayed as being beautiful possessing feminine characteristics and solely driven by expectations of men only. Discriminatory cultural practices based on gender stereotypes of woman roles and perpetual subjugation stands out as major reasons behind the increasing early child marriage cases in India. Women are often prevented from equal access to resources such as education, employment opportunities than men and age differential aggravates the existing gender-based power imbalances in marital relationships.

The legal difference in marriage age of men and women often undermine the autonomy and agency of young women and raise unfounded questions on capabilities of women. It also promote the prejudiced idea that women are more mature than men of the same age and, hence, should be married sooner. The Law Commission in its Report has also recommended uniform age of marriage for boys and girls as the difference in ages has no scientific backing and contribute to patriarchal stereotype that wives must be younger than their husbands[11].

The differential age limit also leads to de-facto discrimination as women are always expected to subordinate role vis-à-vis the husband in most of marital relationships. This power imbalance is deeply aggravated by distinction in age as the latter also constitutes a hierarchy of power-relationships. A younger spouse is more expected to be servile to her elder partner and respect the wishes of the latter, which aggravates the gender inequalities perpetuating in Indian society.

The judicial precedents in various case laws have also questioned the legality of gender-differential laws which contribute to exiting patriarchal power dynamics of the society. In National Legal Services Authority vs. Union of India[12], the court while recognizing the rights of transgender ruled that justice is delivered with the notion that all human beings have equal value and should be treated equally in the eyes of law. But the differential age only advance gender inequalities through violation of fundamental right of equality before law.

In Joseph Shine vs Union of India[13] the Supreme Court while decriminalizing adultery ruled that:
A law that treats women differently based on gender stereotypes is an affront to women’s dignity.
Additionally, the unequal age of marriage have adverse repercussions for girls as under Prohibition of Child Marriage, both boys as well as get two years period to repudiate their underage marriage but girls at 20 may lack the required guidance for annulment of their marriage in comparison to boys at 23.

In Ashwini Kumar Upadhayay vs. Union of India[14] a writ petition was filed under Article 226 of Indian Constitution against difference in age of consent for marriage and it was argued that the distinction is only based on existing patriarchal stereotypes and perpetrates de jure and de facto inequality against the dignity of women as well as global trends. It was also argued that this blatant discrimination is in contravention of fundamental rights of gender equality and dignity under Article 14, 15 and 21 of Indian constitution.

In the landmark judgment of Vishaka vs. State of Rajasthan[15] the Supreme court unequivocally held that fundamental rights should always be informed by international human rights covenants. India has also acceded to Convention on the Elimination of All Forms of Discrimination against Women[16] (CEDAW) which requires that state parties to take appropriate measures for elimination of stereotypes or superiority of either of the sexes.

The CEDAW prohibits such provisions for different ages of marriage which assume that women have a varied rate of intellectual development in comparison to men and becomes immaterial at marriage. The Committee on Status of Women under CEDAW has also recommended a uniform minimum age of 18 years across all countries[17]. It is high time that spouses entering into marriage are all times equals and their mutual partnership must also be in nature of equals.

Raising The Age Of Marriage For Women – A Contentious Terrain

The difference in age of consent for marriage has always been a contentious issue in relation to social disparities in the Indian society. The government has also constituted a task force in June 2020 for examining key issues such as motherhood in girls, correlation between age of marriage and Maternal Mortality Rate and Total Fertility Rate and entrusted with providing recommendations for revising the legal marriage for women at 21 years in consonance with legal age of marriage for men.

The age of marriage remains a key factor in improving issues of maternal mortality rates and nutritional levels of infant child. Girls marrying below the age of 18 often face the higher risks of unwanted pregnancies, pre-term births and various Sexual Transmitted Diseases (STDs) and are made prone to reproductive and sexual morbidities. For achieving dual purpose of putting check on maternal mortality rates and providing educational as well as employment opportunities, the government has proposed the idea for increasing the legal age of marriage for girls.

This move has been hailed as promising as a first step for abolishing the existing the gender inequalities in the country. It will also help in benefiting the nation at large by increasing the women workforce participation rate and will ensure better health of both women and children. But the question of raising the age of marriage is not simple as it deals with social problem and policy pruning even with the progressive intent does not provide required solutions for it.

Many women activists along with many civil society organizations have come forward strictly opposed the idea[18] as without any improvement in implementation of existing provisions under PCMA Act, the increased marriage will not prove as effective check on rising incidents of child marriages in India. It provides an ideal example of punitive paternalism[19] as by only increasing the age through legislative measure, the government escapes from its responsibility for rising child marriage cases in guise of enacting legislative measures only.

The proposed policy also overlooks the fact that early marriages are not a primary determinant of malnutrition among the girls. Poverty along with marginalization of communities need to be addressed first with robust food security programs instead of imposing blanket increase in women’ age for marriage. According to National Family Health Survey 4, the proportion of under-age marriages has considerably decreased with better schooling, education facilities and social awareness[20].

In a recent report by Partners of Law for Development, it has been observed that the laws under POCSO and PCMA Act have majorly been used by parents against eloping daughters against their will[21]. The increase in age will result in restricting the freedom of girls and will have no-say in their marriages due to parental control. The elementary rights under child rights convention – right to be heard and opinion will also be denied till age of 21 beyond adulthood.

The main causes behind the increasing cases of child marriages can be identified as persistent social norms of treating women as submissive, lack of social effective mechanisms and inadequate legal remedies under the existing PCMA Act The increase in age of marriage does not address these major issues and will remain ineffectual in procuring the desired results. Even when the age is increased, the ineffective child marriage laws will result into higher number of early marriages in India owing to inefficient legal system.

The fixing of uniform age of marriage for both men and women at 18 years has also been raised by various social activists in response to proposed policy. The Law Commission Report in 2008 also provided a uniform age of marriage at 18 years based on age of majority.

The Indian laws such as Majority Act, 1875[22] provides that any person above the age of 18 years should be considered as major and grants the right to vote and enter into contracts as they are presumed to attain the require maturity. Moreover, according to CEDAW committee recommendations, the minimum age should be fixed at 18 and has been implemented in various foreign countries.

It is being contended that implementation of existing child marriage laws should take priority in comparison to increasing age of marriage as the latter will lead to more lethal consequences. For concern of early pregnancies, different ways such as comprehensive sex-education in schools, contraceptive awareness and safe abortion need to be prior addressed at the ground level. Increasing the age of marriage to put check on maternal mortality rates will prove unfeasible without the proper access to healthcare to poor and marginalized communities.

It is the need of the hour that holistic approach of better education with strict implementation of child marriage laws with regulating mechanism should be encouraged for curbing the mushrooming menace of child marriages in India.

End-Notes:

1. Pooja Advani, ‘Raiasing women’s age for marriage will be first step towards India’s Global ambition’ The Print, (New Delhi, 4th September, 2020
2. A. Mahadeva Sastri, Emancipation of Women - The Vedic Law of Marriage (1988), p. 19.
3. P. Thomas, Women, Marriage and Customs in India (2000), p.26.
4. Marcus B. Fuller, The Wrongs to Indian Womanhood. (1984), p. 35-36.
5. S.P. Sen (Ed), Social Contents and Religious Movements (l978), p. 272.
6. Tahir Mohmmad, "Marriage Age In India and Abroad – A Comparative Conspectus ", 22 Journal of Indian Law Institute, pp. 45- 46 ( 1986).
7. Mysore Infant Marriage Prevention Act, 1894.
8. Indian Penal Code, 1860. s. 375.
9. The Joshi Committee Report, p. 10.
10. Birupakshya Das v. Kunju Behari, A.I.R. 1961 Ori. 104.
11. The Law Commission 205th Report on ‘Reform under Family Law’.
12. National Legal Services Authority vs. Union of India (2014) 5 SCC 438.
13. Joseph Shine v. Union of India, Writ Petition (C) No. 194 of 2018.
14. Ashwini Kumar Upadhayay vs. Union of India Writ Petition (C) No. of 2019
15. Vishaka and Ors. v. State of Rajasthan and Others (1997) 6 SCC 241.
16. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) art 5(3).
17. Megan Arthur, & Jody Heymann (2018). Child Marriage Laws around the World: Minimum Marriage Age, Legal Exceptions, and Gender Disparities, Journal of Women, Politics & Policy, 39:1, 51-74, DOI: 10.1080/1554477X.2017.1375786
18. Jagriti Chandra, ‘Activists against raising the age of marriage’, The Hindu, (New Delhi, 25th August 2020).
19. Sunny Jose, ‘Move to raise women’s age of marriage reflects punitive-paternalism, The Indian Express, (New Delhi, 30th August, 2020 ).
20. Aneesha Mathur, ‘ Activists say increasing the minimum age for marriage won’t help their vulnerability’, The India Today, (New Delhi, 16th August, 2020)
21. Anubhav Vishwanath, The logic, and debate around the minimum age of marriage’, The Indian Expresss, (New Delhi, 17th August, 2020)>
22. Indian Majority Act, 1875. s. 3(1).