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
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
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
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
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.
Nullity of Marriage
Child Rights and the Constitution
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