Introduction
Child marriage is one of the many social evils prevailing around the globe. Child marriages throughout history have inflicted horror on women and children majorly. It is a sad truth that every one in five girls is married off before she attains the age of 18 and in the least developed countries about 40% girls and about 12% girls are married before attaining 18 years and 15 years of age respectively [1].
India being home to diversity in culture, traditions and religions is home to people who are governed by the personal laws or/and the secular laws. Marriage is one such part of life which is governed by these laws to prevent any wrong or crime.
Women empowerment and gender equality are the two terms which cover not only a prominent and serious set of challenges but also trivial sets of challenges which may get ignored on a daily basis. The Parliament has given us laws to uphold the fundamentals of the Constitution of India but the question whether it is constitutional and just to have different marriageable ages for men and women is relevant and requires attention.
The Laws Prevailing
Child marriage is a gross human rights violation which has been prohibited by laws but still remains prevalent among community customs and patriarchal mindset. With deteriorating status of women in India, whether it be social, economic or political, instances of child brides and child marriages increased rampantly. This ignited a nation-wide campaign for various social reforms and led to legislative measures in the 18th century, Age of Consent for Marriage [2]. The Indian Penal Code, 1860 accredited penal obligations on consummation of marriage with girls who had not attained puberty.
The Indian Christian Marriage Act, 1872 under section 60 (1) limited the age for marriage at 21 years and 18 years for men and women respectively. In view of the ill-effects of child marriage, various states also made efforts to curb the problem by setting marriageable ages. The first state to do so was Mysore, through the Mysore Infant Marriage Prevention Act, 1894 which set a minimum age of marriage for girls, followed by Baroda Early Marriage Prevention Act, 1904.
The Child Marriage Restraint Act, 1929 or Sarda Act was enacted which provided for 18 years and 14 years of for marriage of men and women respectively. On the contrary, in 1936 the Parsi Marriage Act provided for 21 years and 18 years for men and women respectively. After independence, the Special Marriage Act, 1954 set this bar at 21 years and 18 years and with the codification of Hindu law, the Hindu Marriage Act in 1955 followed the same. The Sarda Act and its amendments of 1978 were replaced by the Prohibition of Child Marriage Act, 2006 while maintaining the same ages of 21 years for men and 18 years for women.
The Fundamental Rights
In the current legal scenario, with heightened sensitisation about gender justice and equality and with current progression in social, economic and political aspects, the tree of disparity in marriageable age for men and women finds its roots in the soil of patriarchy. As the years pass-by the soil gets watered by narrow-mindedness, social conditioning and negligence of the society.
i. Article 14
In our society, there are notions and beliefs which are a result of patriarchal conditioning, the wife being younger than the husband is a result of such conditioning. This conditioning further gets divided into-
rational of protecting virginity and sexuality of a girl and thereby getting her married at an early age, and
rational of a girl reaching maturity at a younger age than a boy and thereby handle the matrimonial caregiving duties.
It can be agreed that the onset of puberty differs from child to child but the assumption of a woman attaining psychological, emotional and physiological maturity to handle matrimonial responsibility earlier in comparison to a man let alone educational and economic capability is equal to turning a blind eye on the equality before law to all persons guaranteed under Article 14.
The 13th Report of Parliamentary Standing Committee, noted that there are physical, intellectual, psychological and emotional differences between the sexes. This takes a very narrow understanding of individual competency and the gender roles. It can be understood that the requirement for attaining educational and economic independency is a necessity for a man, bread-earner of the family, and not for a woman, child-bearer and caregiver, in order to conform to their gender specific roles in a matrimony.
Justice Sikri in NALSA v. UOI opined, “Anything which is not reasonable, just and fair is not to be treated equally and therefore is violative of Article 14” [3].
Class legislation under Article 14 is forbidden but it does not forbid reasonable classification which satisfies:
a) The classification should not be arbitrary, artificial or evasive and be based on an intelligible differentia.
b) The differentia adopted must have a reasonable or rational nexus for the object which is sought to be achieved.
Prohibition of Child Marriage Act has the object to prevent the child marriages primarily with the aim of protecting young girl from becoming bride but this gender based classification goes on to frustrate this object rather than facilitating it. It assumes that a young age as 18 is enough to attain economic and educational capabilities for a woman while for a man the extended 3 years provides him with more time for receiving education, realization of dreams and finding economic outlook of the world per se. The section 4(c) of Special Marriage Act sets a minimum age for the parties to achieve a certain level of developmental capacity necessary for marriage. The requirement of gender based classification is the nexus of the developmental capacity necessary and the gender of the person. This linkage is based on the rationality of stereotypical gender roles of a husband and wife in a household and thus lacks reasonability.
As per Justice Mukherjee in Anwar Ali Sarkar case, the well settled principle of law underlying Article 14 is not the application of sale rules of law to all persons within Indian Territory or the availability of same remedies but that persons similarly circumstanced shall be treated alike in the instance of both privileges and liabilities [4].
The Supreme Court’s opinion in Anuj Garg case can be interpreted that by setting different minimum ages of marriage for men and women ends ups victimizing women in the name of protection against child marriage or early marriage which may subject them to abuse, harassment or other evils. Also, with the advent of modern State and sensitization of gender equality, new models of security must be developed [5].
ii. Article 15
The age disparity for marriage provided in the sections of the statutes is a discrimination based on the ground solely of ‘gender’. The three year difference provides an advantage to a man to grow, learn and become independent and a rational adult over a woman.
As per the data of National Family Health Survey 2015-16, 6% of women who were currently in the age group of 20-24 years got married at the age of 15, 26.8% of women by the age of 18 years and 48% by the age of 20 years. On the same lines, a man can be said to be discriminated against for he has to wait for 3 more years to get married in comparison to a woman irrespective of the fact that 18 is considered as the age of majority for both the genders in majority provisions except marriage.
As per Navtej Singh Johar case, discrimination grounded in and perpetuating from stereotypes about a class constituted by the grounds prohibited under Article 15(1) will not survive the constitutional scrutiny. A ground of discrimination, direct or indirect narrow or stereotypical understanding of the role of the sex, will not be distinguishable from the discrimination which is prohibited under Article 15 of Constitution on the grounds of ‘sex’ only. It is also to be understood that the characteristics grown from stereotypes if associated with an entire class of people which are constituted as groups under the prohibited grounds of Article 15 will not be considered as a permissible reason to be discriminated against. Such kind of discrimination is nothing but the violation of constitutional guaranteed against discrimination under Article 15(1).
iii. Article 21
Right to life is fundamental to human existence and it contains all those ingredients which makes a human’s life meaningful, worth living and complete. The parties to a contract should have equal rights and so the people entering in a marriage should be bestowed with equal rights.
Justice Dipak Misra concurring in the Voluntary Health Association case, mentioned the words stated by Charles Fourier, “The extension of women’s rights is the basic principle of all social progress” [6]. In this context it is also relevant to Justice Sikri’s concurring opinion in NALSA v UOI case. He emphasised on the concept of dignity and opined that all democratic nations are familiar to the basic principle of dignity and freedom. Democracy is required to respect and develop the free spirit of human beings which is responsible for all progress in human history and democracy is also a method by which an attempt can be made to raise the living standard of the people and provide opportunities to every person to develop his/her personality.
In the present issue, the age disparity on the basis of gender under various provisions goes on to solidify gender roles in the society. Such a solidification, places women on a lower ground than men and in a state of dependency to the husband in the matrimony and thereby violates the right to live with ‘dignity’.
International Obligation of India
Article 16 of Universal Declarations of Human Rights provides for the equal right to marry and the Convention on the Elimination of all Forms of Discrimination against Women was accepted and ratified by India in the year 1993.
The international conventions and declarations comprise diverse human rights elements that can provide an efficient framework to address the complexity of the inequality faced by women. They bring together the formal and substantive equality and define discrimination in terms of purpose and effect and indivisibility of all human rights when framing these rights in the terms of non-discrimination and equality.
From the Law Commission’s Consultation Paper, it can be derived that an international convention which is consistent with the fundamental rights of our Constitution, can be interpreted into the Article 14, 15, 19 and 21 in order to enlarge their meaning and intent and promote the constitutional philosophy [7].
Conclusion
Marriage is an institution which is highly affected by the cultural and social norms and beliefs. Child marriage is a human rights violation but they should also be considered as a health issue which not only impacts the physical well-being but also the mental health of a woman or child. The social conditioning and biases regarding the ‘desirable age’ at which a woman should be married off is facilitated by the laws backing them. As our country is progressing, it is appropriate to adopt the viewpoint of around 125 countries which have universal age of marriage in their country. There is a need to bring parity in the minimum age of marriage for men and women to take a step towards equality. At last one can be hopeful that empowering women legally will help in empowering women socially.
References:
[1]. www.unfpa.org/child-marriage
[2]. Siba Pada Sen, Social and Religious Reform Movements in the Nineteenth and Eighteenth Centuries.
[3]. National Legal Services Authority v Union of India (2014) 5 SCC 438 [99].
[4]. State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.
[5]. Anuj Garg v Hotel Association of India (2008) 3 SCC 1.
[6]. Voluntary Health Association of Punjab v Union of India (2013) 4 SCC 1.
[7]. Law Commission, Reform on Family Law (Law Com, 2018) para 1.38.
About the author –
This article has been written by Shivangi Kale, Third year B.A.LL.B. (Hons) student at Dr. Ram Manohar Lohiya National Law University, Lucknow.
