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The Prohibition Of Child Marriage Amendment Bill, 2021: A Critical Analysis

The new Child Marriage Amendment bill was introduced in the Lok Sabha on 20th December, 2021. The primary objective of this bill is to raise the legal marriage age for females from 18 to 21 in India. The justification behind this amendment is the enforcement of the Constitutional mandate of gender equality as the legal marriage age for males in India is 21.

The following key amendments have been made in the prohibition of Child Marriage Act:
Section 2 of the Child Marriage Act under which child now refers to any male or female who has not attained the age of 21 years notwithstanding any such law or customary practice opposed to this amendment.

Substitution of the words 2 years with 5 years in Section 3(3) of the act, which deals with the child filing a petition for the annulment of child marriage. Post this amendment; a child may file such a petition only before completing five years of attaining majority.

Insertion of Section 14A in the act states that these new amendments will have an overriding effect in context to the existing laws or customs that may contradict the amendments.
The other personal and marriage laws such as the Hindu Marriage Act, Hindu Minority and Guardianship Act and the Foreign Marriage Act, Indian Christian Marriage Act, Parsi Marriage and Divorce Act, Muslim Personal Law (Shariat) Application Act and the Special Marriage Act shall be amended accordingly to be consistent with these new provisions.
This legislation will be implemented two years after the President's approval.
 
Union Women and Child Development Minister, Smriti Irani, introduced this bill stating that it will be applicable to all castes and religions. This act itself upholds the principles of the fundamental right to equality by keeping the marriage age 21 years of both male and female citizens. This will widen educational and occupational opportunities for women as it 
will give them more time to receive education or engage themselves in work aspects as such common privileges are denied to a large percentage of women post marriage. In such situations, men become the sole providers of the household, and their wives are forced to rely on their earning husbands for financial support.

In addition to this, empowering women by improving their nutrition levels and lowering the maternal mortality rate was another bill. According to a demographic study by the National Library of Medicine, the maternal mortality in 2020 alone was 23,800 deaths. 63% of deaths occurred in rural areas. Moreover, evidence from a study by Ann Blanc showed that women after the age of 18 are proven to be comparatively healthier and more nourished, which naturally decreases the maternal mortality rate.

However, one cannot turn a blind eye to some offsetting factors about this act. Since this bill has overriding properties, it will completely nullify the provisions mentioned in the various personal and marriage laws regarding the age of marriage. For example, the age of marriage for females is 18 years and 21 for males under Section 5(iii) of the Hindu Marriage Act, 1955. The new amendment act will nullify this particular provision and mandate the minimum age of 21 years for both males and females. On a closer look at the bigger picture, it can be observed that this bill is another stepping stone for BJP on the path to Uniform Civil Code or UCC.

While the concept of UCC itself is an excellent idea as uniformity in legal rules can lead to speedy trials and clarity of laws, its application is not viable in India due to its vast diversity as well as its rich history of traditions. A member of the RSS national executive, Ram Madhav told ThePrint that:
UCC is good for the country and there are several judgments on the need for it. On the contrary, according to the Law Commission's 2018 report on the feasibility of UCC and reform of family law, as demanded by BJP in 2016, discriminatory personal laws may be removed or amended, but UCC in India is neither necessary nor desirable at this stage.

Therefore, such reforms in personal laws could lead to serious legal implications and mass instability as a result of the clash between the validity of the pre-existing personal laws and the newly formed uniform law.

The most significant issue arises with Muslim Personal Law. It is quite difficult to establish harmony between the new amendment and the provisions of this law in context with the marriage age as the Muslim law states that a girl can be married once she attains puberty. This age is usually taken to be 15 years. However, as the Muslim personal law is a codification of the Shariah law, the question of the legislation's and judiciary's extent of jurisdiction over divine or religious laws arises. The apex court has stated that all personal laws must follow the principles and regulations of the Constitution but, several high courts have varied opinions on this matter.

The most striking fact about this bill is that no amendments were made for child marriage in the bill. The Prohibition of Child Marriage Amendment Act, 2021, has no provisions to make child marriage void. Under the current legal regulations, as stated in Section 3(1), child marriage is voidable at the option of the underage party to marriage within two years of attaining maturity.

However, as noted by the Centre for Law and Research's Policy Brief, the provisions of the current law put an encumbrance on the child to annul the child marriage within a limited time period. Moreover, the child usually faces several impediments while seeking such an annulment like lack of familial support, societal pressure, the threat of violence and financial constraints. Due to a lack of awareness about their rights, children are often prevented from reaching out to NGOs or Child Marriage Prohibition officers.

It also causes a hindrance in the education and career growth of these girls. Child marriages also lead to sexual abuse of kids and early pregnancies, posing serious health risks to both the mother and baby. According to the National Family Health Survey of 2016, the under-five mortality rate was 59.2% among women who gave birth under the age of 20 years. Government officials have intervened in more than 5584 child marriages in 2021 alone. Respected retired judges M.B. Lokur and Deepak Gupta have deemed it strange that child marriages in India are illegal but not void.

The intended progressive goal of this amendment with regard to women empowerment must be reflected in the main reason for the formation of this Child Marriage legislation. Although this amendment to raise the marriage age to 21 years is very fruitful in theory as it allows for better education prospects for women and better nutrition levels, it will have only a little impact on society.

The women who are most likely to benefit from increased education and career opportunities come from advantaged families that support this. However, women from rural sectors or from low castes would rarely be able to avail of this benefit due to a lack of awareness about their rights and minimal legal or family support.

Awareness campaigns, especially in rural regions, are needed to make some real change. Therefore, the focus should be laid on stricter implementation of laws as structural changes within the government system and society are needed rather than such legislations to promote actual women empowerment.

Suggested Article:
  1. Child Marriage
  2. Nullity of Marriage
  3. Child Rights and the Constitution
  4. Legal Age For Marriage In India
  5. Age of Consent for Marriage In India

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