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Prohibition of Child Marriage (Amendment) Bill

The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.[1]

In the recent session of Parliament, government introduced the Prohibition of Child Marriage (Amendment) Bill. This amendment changes the minimum age of marriage to 21 for women, thus making it same for both men and women. Since then, series of discussions have taken place around why and why not should the minimum age increase. This article attempts to cover historical, legal and judicial aspect of the amendment.

Historical Background
A general brief history of marriage is known by everyone. For the sake of this article, it can be deduced to- it was a concept made by man to demarcate his property (including women) and to know the paternity of a child. The concept being man-made is highly patriarchal in nature and unfair to women on many levels, for now, let's stick to the age factor.
From the primitive times, when the women began to be the other [2], a trend of wife being younger is see.

No anthropological ethnographies could explain a reasonable cause for such a distinction. Again, we are left with one assumption- that, men with their patriarchal mindset, synonymized seniority with superiority. Thus, the sole basis of such distinction is patriarchal belief and it should be done away with.

Legal
Legal History: Following is the timeline of the development of this act:
  1. 1860- In IPC 1860, sex with girl below the age of 18 constituted to rape
  2. 1927- Marriage with a girl below 12 was held invalid
  3. 1929- In Child Marriage Restraint Act 1929, minimum ages of marriage were 16 & 18 for girls and boys respectively.
  4. 1978- In Sarda Act 1978, the minimum age of marriage was raised to 18 & 21 for boys and girls respectively.
Legal Aspect- Equality emanates from equal laws. Any system treating a woman with inequality and inequity or discrimination invites the wrath of the Constitution. ftnt
Article 14- The Constitution, our Grundnorm, has put an emphasis on equality. Art 14 confers equality before law. The distinction between the minimum age of men and women has no rational basis. As justly held in E.P Royappa[3] and Maneka Gandhi[4] cases, there needs to be a reasonable classification i.e., it must be based in intelligible differentia and that differentia must have a rational nexus to the objects sought.

The distinction n of minimum ages thus holds no reasonable classification and thus violates Article 14 of the Constitution.
Article 15- The State is constitutionally bound and committed to respect the promise of non-discrimination before law, it cannot shrink its responsibility by being a mute spectator.[5] It has been held in plethora of cases that gender equality is non-negotiable and any distinction solely based on gender is violative of Article 15.

Article 21- Age 18, is a general age when students graduate from school. The real education, the job-oriented education and the vocational trainings just start after that. The majority of the society does not allow a woman to study after marriage and depriving her of this right is a clear violation of Article 21. For a woman to be self-dependent, she needs the education after school, she needs the time till age 21 to build herself in the fullest way possible.

Article 44- Making the legal age 21 for all women to marry, irrespective of any custom or social practices is just another step towards the vision of a complete Uniform Civil Code. Even the Law Commission in 2018 in the Reforms of Family report has talked about a uniform minimum age of marriage irrespective of the gender. It has also noted that such a distinction contributes to the stereotype of wives being younger in the institution of marriage.

Judicial
Time and again judiciary has proved its advancement in comparison of the legislative. It is one of the major objects of having judiciary as one of the pillars of democracy. It has been called and rightly so, the last hope of a democracy.

As early as 2007, the Supreme Court in Anuj Garg & Ors. v. Hotel Association of India [6], has emphasized on gender equality and has talked about the need to discard patriarchal mindset and its products. The minimum age distinction is one such product.

In Joseph Shine case[7] it was held A constitutional court cannot remain entrenched in a precedent, which in turn are based on past beliefs, for the controversy relates to the lives of human beings who transcendentally grow. Therefore, the belief of women being younger in a marriage has to be left behind. The change starts from this new legislation and like always, the society will cohesively adjust accordingly.

Another instance of advancement of judiciary can be seen in Independent Thought v. Union of India and Anr.[8]where it has been rightly held that Law cannot be hidebound and static. It has to evolve and change with the needs of the society. The judgement also states that any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception.

It is evident from these cases, that judiciary is way ahead of its time and that it will welcome the new amendment with open arms.

Necessity
The delay in bringing this bill is because perhaps India was too busy in combating child marriage that it turned a blind eye to the minimum age difference. Or else, it might have thought that the county is not ready for yet another change but it is high time now. With the 75th year of independence, it is now time to do what should have been done decades ago.

Following are a few points which states why this change is needed:
  • To have enough time to complete education
  • Step towards gender equality, starting from black and white.
  • To pursue opportunities of education.
  • To have time for self-discovery. To understand that life is so much more than just the charms of a married life.
  • Time to become independent in the real sense.
  • An older and more educated women can have more say in decision making for setting up a household and family planning.
  • The financial burden, which is traditionally solely on man, can be shared with wife.
  • Lastly, more educated couples would make better parents.

Endnotes
Although this article talks highly about the new legislation and the need for it, the author accepts the fact that the greater goal of gender equality cannot be achieved by a mere legislation.

Quoting Venkaih Naidu:
"Merely bringing legislation is not enough, what is required is not a bill alone, but political will, administrative skill, to kill a social stigma�there is a need of change in mindset." Again, on a positive note, the two years after acquiring the assent of the President should be properly utilized to prepare the society for the amendment.

Conclusion
The article discuses the historical background of age distinction between spouses and concludes that there is no scientific backing behind it. Then, it goes on to discuss the legal timeline of Acts and laws referring to the age of an adult woman along with the legality of the act. Further, it examines how judiciary has advanced itself by suggesting such a change decades ago. Lastly, it considers the necessity for the same and accepts that a mere legislation cannot bring the desired change. Conclusively, the Amendment is a step towards gender equality, uniform civil code, and a better society altogether.

End-Notes:
  1. On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)
  2. The Second Sex, by Simone de Beauvoir, Constance Borde, Sheila Malovany-Chevallier.
  3. E.P. Royappa v. State of Tamil Nadu, 1974 AIR 555 1974 SCR (2) 348 1974 SCC (4)
  4. Maneka Gandhi v. UOI, AIR 1978 SC 597
  5. Joseph Shine v. Writ Petition (Criminal) No 194 OF 2017
  6. AIR 2008 SC 663, (2008) 3 SCC 1
  7. Joseph Shine v. UOI, Writ Petition (Criminal) No. 194 OF 2017
  8. Writ Petition (Civil) No. 382 OF 2013

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