The Prohibition Of Child Marriage (Amendment) Bill, 2021: Consistency And Inconsistency
The prohibition of child marriage bill 2021 hereinafter called as the bill was
introduced on 20 December 2021 by honorable minister of women and child
development Smriti Zubin Irani. Findings of Ten-member NITI Ayog inspired union
cabinet to advance such a bill to Lok Sabha and whereby paved the way for bill's
accession to the Indian law.
This bill envisaged the idea to increase legal age of women to marry, from 18 years to 21 years. Compliance with this new law makes any marriage agreement voidable if undertaken by an individual or individuals not attained the age of 21. The bill thereof turns hostile, if enacted, against many laws even including freedom of choice for adults guaranteed under article 21 of Indian constitution.
The Bill Consists Of A Non-Obstinate Clause Which Intimates. Notwithstanding Anything Contrary Or Inconsistent Therewith Contained In The:
Furthermore, the bill extends limitation period under section 3 from 2 years to 5 years, in order to file a petition under proposed bill, for the aggrieved. However, this bill was introduced with a paramount intention to achieve a par in the legal marriage age between genders. Indeed, an ulterior motive lurks within the proposed act which endorses the agenda of uniform civil code.
The definition of child under section 2(a) of The prohibition of child marriage bill,2006 has been changed from 21 for male and 18 for female to 21 for both. As the bill was introduced, there were both political and social assents, as well as dissents. Many welcomed the bill with open hands but many rejected the bill. This article attempts explicate the bill in a law-man's perspective rather than a layman or partisan viewpoints. Every points discussed here shall be supported with reasonable logic and evidence
History
There were no codified laws pertaining to marriages before colonial era and the endeavor commenced from colonial era to codify the laws of marriages. The Indian Penal Code was the first to produce laws in terms of marriage age. It penalized any intercourse between a male and female not attained 10 years or above. In 1891, the age of consent act was launched and it mandated minimum of 12 years for any gender to expressly give consent.
The 1929 witnessed the creation of Child Marriage Restrain act, which increased the legitimate age for marriage to 14 and 18 for girls and boys respectively. An amendment to the said act was instituted on 1978, whereby once again increased the age of marriage to 21 for males and 18 for females. The recent legislation of Prohibition of child marriage act 2006 defines a child as a person below the age of 21 for boys and 18 for girls. Such children defined by this act are incapacitated to contract for marriage.
Statement Of Objects And Reasons
Analyzing the statement of objects and reason as provided in the bill. In accordance with the first paragraph, the bill earmarks for inhibiting pernicious practices towards women's progression by increasing the marital age from 18 to 21. In fact, the gross enrolment rate (GER) 2019-20[1] in higher education was 27.1 per cent, women exceed the total by 27.3 per cent and men with a lower 26.9 per cent. In 2011- 12 this GER was 17.9per cent for women and 20.8 per cent for men. It is evident from the GER comparison that the situation has been changing over the years.
The second paragraph of thereof bill explicitly enunciates that women's are always in a disadvantaged position regarding higher education, attainment of psychological maturity etc�. This disadvantage in turn creates perpetual dependence of women to men and thereby, lowering maternal mortality rate and infant mortality rate, alongside reducing nutrition levels and sex ratio at birth.
However, the Memorandum to Task Force Set up Examine Age of Motherhood and Related Issues [2]proposed by more than 40 NGO'S and activists of women's right showed scientifically, 18 years is the age when women's reproductive system completely develops and becomes a healthy female. Indeed, idea of marriage rights from 18 years is conceded by developed countries like US and UK and laws regarding the same have also been created.
This study has also intimated that child marriage is an ostensible cause and poverty along with deficit health systems plays imperative part to endorse widespread malnourishment among women. Child marriages persists more among marginalized and impoverished masses and not among financially stables. In lieu of treating the result from a cause, it will be prudent to take measures in order to diminish the cause itself. A straight line can be drawn between relation of poverty and child marriage.
In the third paragraph stresses on gender equality, empowerment of women, increase participation of women in labour and provide for inclusive growth. In addition to abovementioned, the bill also seeks to achieve many virtuous objectives for women by increasing age of marriage from 18 to 21.[3]40.8 per cent of women were married before 18 in Bihar but Kerala this rate diminishes to 6.3per cent even though legal age for marriage remains same in both states.
This situation should be alongside read with the literacy rate among women. It is 97per cent in Kerala while on the other hand it's mere 55 per cent in Bihar. There exists a strong correlation between education and child marriage.
It brings a great sense of bafflement as bill professes to empower women in education and labor field but according to amendment in Labour prohibition amendment act 2016, allowed for employing child between14 -18 in labor works except in hazardous jobs. According to section 4 of thereof act a child is someone under the age of 14 or any person prescribed by Right of Children to Free and Compulsory Education Act 2009. The mandatory education is only till age of 14. In one law adolescents is entitled to work like adults from 14 voluntarily but on the other the same person is thwarted from getting married even after attaining 18 years.
Bill Vis-a-Vis Contract Act
According to section 11 of Indian contract act, any person who is a major is entitled to enter a contract independently unless hampered by law in force. As per section 3(1) of Indian Majority Act 1875, any person attained 18 years or above is considered as a major in India. The Indian laws deems a person 18 or above to be rational and prudent competent to make righteous decisions. Any person of 18 years or above can avail and hold a driving license and can ride any vehicle on any road in India, subject to laws.
Moreover, thereof age group is rendered the right to vote and can thereby decide the fate of nation. The definition given in regard to child by prohibition of child marriage bill 2021 and Indian contract act 1875, thereby contradict each other. On one hand a major (18) can acquire and alienate any property but on the other hand same can't marry at his choice.
Bill Vis -a-Vis Fundamental Rights
The fundamental right does not expressly recognize marriage but many judicial precedents have appropriated marriage as a fundamental right. The Supreme Court in Many cases held that the right to marriage at one's discretion is an inclusive right guaranteed under fundamental rights.
In Latha Singh vs State of UP[4], the apex court of India held that it is the fundamental right of majors to choose their partners and lead conjugal life as they wish.
In the case of Shafin Jahan vs Asokan KM[5], the Supreme Court held that "an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.
It is to be stated that if Prohibition of Child Marriages Bill 2021 become law, it would be an encroachment on the individuals' liberty to choose any partner at his discretion. Therefore, contradicting the above judgments. The gist of article 21 is the right to liberty and liberty include the right of choices.
Consent Vis -a-Vis Bill
Consent is another aspect that turns hostile against the bill. Any person attained majority is entitled to give consent for sexual intercourse. Moreover, the criminal law amendment act 2013 raised the age of expressing consent from 16 to 18 .Owing to law the a person now can have sexual intercourse but can't marry at his will ,provided that he is 18 years of age. In the case Independent Thought vs Union of India [6]the court pronounced that any intercourse with any women under the age 18 unequivocally amount to rape, whether consent involved or otherwise.
Living Together v/s Bill
Notwithstanding anything in the bill, any person who have attained majority is not impeded to proceed with a live-in relationship with any other major. Ironically this entitlement defies the basic tenet of the bill. A pellucid definition about live-in relation is not provided anywhere in law. However, according to 2(b) of domestic violence act a live-in relation is similar to that of marriage or in the nature of marriage. There are many judicial precedents affirming the validity of live-in relation.
In Khushboo v/s Kannimmal [7]the apex court upheld the freedom of majors to cohabit without the burden of marriage.
In D.Veluswamy v/s D Patchiammal[8] case it was held that a man and women who attained age of 18 or above can thereon voluntary cohabit and such relation is analogues to marriage .
Bill v/s Criminal Law
Law recognizes the maxim of Doli incapax and deems minors incapable of forming Mens rea and thereby facilitating immunity to minors against crime. However, The Juvenile Justice Act 2015 confers minors between 16 -18 old criminal liability, on the commission of any heinous offence. Provided that such heinous offence is committed with Mens rea.
If a minor under the age of 16 commits a crime, Juvenile Justice Board may choose to admonish the child, order the child to be sent for counseling, perform community service, etc. According to section 82 of the Indian Penal Code, no person under the age of 12 shall deem to have criminal liability.
Conclusion
According to the statement of objects and reason, the main motive of this bill is to empower women socially and educationally. When you implement these laws to marginalized and impoverished groups of people, nothing except a futile result that again overburdens them will be forged. To uplift the females, provide free and compulsory education till the age of 18 rather than uplifting age of marriage. This bill only condones encroachment upon personal liberty guaranteed under our revered constitution and not otherwise.
Foot-Note:
This bill envisaged the idea to increase legal age of women to marry, from 18 years to 21 years. Compliance with this new law makes any marriage agreement voidable if undertaken by an individual or individuals not attained the age of 21. The bill thereof turns hostile, if enacted, against many laws even including freedom of choice for adults guaranteed under article 21 of Indian constitution.
The Bill Consists Of A Non-Obstinate Clause Which Intimates. Notwithstanding Anything Contrary Or Inconsistent Therewith Contained In The:
- Indian Christian Marriage Act, 1872;
- The Parsi Marriage and Divorce Act, 1936;
- The Muslim Personal Law (Shariat) Application Act, 1937
- The Special Marriage Act, 1954;
- The Hindu Marriage Act, 1955; and
- The Foreign Marriage Act, 1969
Furthermore, the bill extends limitation period under section 3 from 2 years to 5 years, in order to file a petition under proposed bill, for the aggrieved. However, this bill was introduced with a paramount intention to achieve a par in the legal marriage age between genders. Indeed, an ulterior motive lurks within the proposed act which endorses the agenda of uniform civil code.
The definition of child under section 2(a) of The prohibition of child marriage bill,2006 has been changed from 21 for male and 18 for female to 21 for both. As the bill was introduced, there were both political and social assents, as well as dissents. Many welcomed the bill with open hands but many rejected the bill. This article attempts explicate the bill in a law-man's perspective rather than a layman or partisan viewpoints. Every points discussed here shall be supported with reasonable logic and evidence
History
There were no codified laws pertaining to marriages before colonial era and the endeavor commenced from colonial era to codify the laws of marriages. The Indian Penal Code was the first to produce laws in terms of marriage age. It penalized any intercourse between a male and female not attained 10 years or above. In 1891, the age of consent act was launched and it mandated minimum of 12 years for any gender to expressly give consent.
The 1929 witnessed the creation of Child Marriage Restrain act, which increased the legitimate age for marriage to 14 and 18 for girls and boys respectively. An amendment to the said act was instituted on 1978, whereby once again increased the age of marriage to 21 for males and 18 for females. The recent legislation of Prohibition of child marriage act 2006 defines a child as a person below the age of 21 for boys and 18 for girls. Such children defined by this act are incapacitated to contract for marriage.
Statement Of Objects And Reasons
Analyzing the statement of objects and reason as provided in the bill. In accordance with the first paragraph, the bill earmarks for inhibiting pernicious practices towards women's progression by increasing the marital age from 18 to 21. In fact, the gross enrolment rate (GER) 2019-20[1] in higher education was 27.1 per cent, women exceed the total by 27.3 per cent and men with a lower 26.9 per cent. In 2011- 12 this GER was 17.9per cent for women and 20.8 per cent for men. It is evident from the GER comparison that the situation has been changing over the years.
The second paragraph of thereof bill explicitly enunciates that women's are always in a disadvantaged position regarding higher education, attainment of psychological maturity etc�. This disadvantage in turn creates perpetual dependence of women to men and thereby, lowering maternal mortality rate and infant mortality rate, alongside reducing nutrition levels and sex ratio at birth.
However, the Memorandum to Task Force Set up Examine Age of Motherhood and Related Issues [2]proposed by more than 40 NGO'S and activists of women's right showed scientifically, 18 years is the age when women's reproductive system completely develops and becomes a healthy female. Indeed, idea of marriage rights from 18 years is conceded by developed countries like US and UK and laws regarding the same have also been created.
This study has also intimated that child marriage is an ostensible cause and poverty along with deficit health systems plays imperative part to endorse widespread malnourishment among women. Child marriages persists more among marginalized and impoverished masses and not among financially stables. In lieu of treating the result from a cause, it will be prudent to take measures in order to diminish the cause itself. A straight line can be drawn between relation of poverty and child marriage.
In the third paragraph stresses on gender equality, empowerment of women, increase participation of women in labour and provide for inclusive growth. In addition to abovementioned, the bill also seeks to achieve many virtuous objectives for women by increasing age of marriage from 18 to 21.[3]40.8 per cent of women were married before 18 in Bihar but Kerala this rate diminishes to 6.3per cent even though legal age for marriage remains same in both states.
This situation should be alongside read with the literacy rate among women. It is 97per cent in Kerala while on the other hand it's mere 55 per cent in Bihar. There exists a strong correlation between education and child marriage.
It brings a great sense of bafflement as bill professes to empower women in education and labor field but according to amendment in Labour prohibition amendment act 2016, allowed for employing child between14 -18 in labor works except in hazardous jobs. According to section 4 of thereof act a child is someone under the age of 14 or any person prescribed by Right of Children to Free and Compulsory Education Act 2009. The mandatory education is only till age of 14. In one law adolescents is entitled to work like adults from 14 voluntarily but on the other the same person is thwarted from getting married even after attaining 18 years.
Bill Vis-a-Vis Contract Act
According to section 11 of Indian contract act, any person who is a major is entitled to enter a contract independently unless hampered by law in force. As per section 3(1) of Indian Majority Act 1875, any person attained 18 years or above is considered as a major in India. The Indian laws deems a person 18 or above to be rational and prudent competent to make righteous decisions. Any person of 18 years or above can avail and hold a driving license and can ride any vehicle on any road in India, subject to laws.
Moreover, thereof age group is rendered the right to vote and can thereby decide the fate of nation. The definition given in regard to child by prohibition of child marriage bill 2021 and Indian contract act 1875, thereby contradict each other. On one hand a major (18) can acquire and alienate any property but on the other hand same can't marry at his choice.
Bill Vis -a-Vis Fundamental Rights
The fundamental right does not expressly recognize marriage but many judicial precedents have appropriated marriage as a fundamental right. The Supreme Court in Many cases held that the right to marriage at one's discretion is an inclusive right guaranteed under fundamental rights.
In Latha Singh vs State of UP[4], the apex court of India held that it is the fundamental right of majors to choose their partners and lead conjugal life as they wish.
In the case of Shafin Jahan vs Asokan KM[5], the Supreme Court held that "an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.
It is to be stated that if Prohibition of Child Marriages Bill 2021 become law, it would be an encroachment on the individuals' liberty to choose any partner at his discretion. Therefore, contradicting the above judgments. The gist of article 21 is the right to liberty and liberty include the right of choices.
Consent Vis -a-Vis Bill
Consent is another aspect that turns hostile against the bill. Any person attained majority is entitled to give consent for sexual intercourse. Moreover, the criminal law amendment act 2013 raised the age of expressing consent from 16 to 18 .Owing to law the a person now can have sexual intercourse but can't marry at his will ,provided that he is 18 years of age. In the case Independent Thought vs Union of India [6]the court pronounced that any intercourse with any women under the age 18 unequivocally amount to rape, whether consent involved or otherwise.
Living Together v/s Bill
Notwithstanding anything in the bill, any person who have attained majority is not impeded to proceed with a live-in relationship with any other major. Ironically this entitlement defies the basic tenet of the bill. A pellucid definition about live-in relation is not provided anywhere in law. However, according to 2(b) of domestic violence act a live-in relation is similar to that of marriage or in the nature of marriage. There are many judicial precedents affirming the validity of live-in relation.
In Khushboo v/s Kannimmal [7]the apex court upheld the freedom of majors to cohabit without the burden of marriage.
In D.Veluswamy v/s D Patchiammal[8] case it was held that a man and women who attained age of 18 or above can thereon voluntary cohabit and such relation is analogues to marriage .
Bill v/s Criminal Law
Law recognizes the maxim of Doli incapax and deems minors incapable of forming Mens rea and thereby facilitating immunity to minors against crime. However, The Juvenile Justice Act 2015 confers minors between 16 -18 old criminal liability, on the commission of any heinous offence. Provided that such heinous offence is committed with Mens rea.
If a minor under the age of 16 commits a crime, Juvenile Justice Board may choose to admonish the child, order the child to be sent for counseling, perform community service, etc. According to section 82 of the Indian Penal Code, no person under the age of 12 shall deem to have criminal liability.
Conclusion
According to the statement of objects and reason, the main motive of this bill is to empower women socially and educationally. When you implement these laws to marginalized and impoverished groups of people, nothing except a futile result that again overburdens them will be forged. To uplift the females, provide free and compulsory education till the age of 18 rather than uplifting age of marriage. This bill only condones encroachment upon personal liberty guaranteed under our revered constitution and not otherwise.
Foot-Note:
- More Indian women enrolled for higher education, Print India ,available at https://theprint.in/india/education/more-indian-women-enrolled-for-higher-education-in-2019-20-report-shows/675413/ (Last Modified 10 June,2021)
- https://feministlawarchives.pldindia.org/wp-content/uploads/MEMORANDUM-TASK-FORCE-ON-AGE-OF-MARRIAGE-FROM-CIVIL-SOCIETY-ORGS-AND-REPS-June-25-2020.pdf
- T K Rajalakshmi Flawed law Frontline, January 14,2022
- (2006) 5 SCC 475
- (2018) 16 SCC 368, AIR 2018 SC 1933
- (2017] 10 SCC 800, AIR 2017 SC 4904
- (2010) 5 SCC 600
- (2010) 10 SCC 469
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