“We believe that sons and daughters are equal. By increasing the marriage age of women from [eighteen] to [twenty-one], the government wants to enable ‘desh ki beti’ to build a career for herself and become Aatmanirbhar.” These were the words stated by Indian Prime Minister Narendra Modi in support of the Prohibition of Child Marriage (Amendment) Bill. This bill was proposed in December 2021 in the Lok Sabha and has majority support to pass in Parliament when it reconvenes for its first session in 2022. As the law currently exists, per the Prohibition of Child Marriage Act, 2006, men must be twenty-one before they can marry whereas women only have to be eighteen. The amendment bill ultimately will achieve gender parity in terms of marriageable age.
In addition to achieving gender parity, proponents of the bill claim that it will effectively deter child marriages, which usually put women at a disadvantage, since they are unable to complete their secondary education and therefore are unable to take up a vocation. Aside from promoting women’s career ambitions, the bill can also help women in terms of health and wellness. With the increased age requirement, women can achieve psychological maturity before marriage, can reduce instances of teenage pregnancy and its associated diseases, and can avoid the enhanced risk of maternal mortality and malnutrition.
Those opposed to the bill argue its practicality, implementation, and enforcement, but most significantly, argue its disregard for women’s autonomy and choice in their relationships. As activist Pratibha Kaphur noted, “the new law will control adult women’s autonomy while robbing them of their sexual rights to marry when they feel ready. If [eighteen] year-olds can vote, drive, represent the country in the Olympics and act in films, why can’t they tie the knot at that age?” Further, this law will invoke criminal penalties against women who marry before turning twenty-one. Since Indian women are old enough to be considered adults at eighteen, they can be sentenced to a jail term in an adult prison for violation of this law, but simultaneously are too young to exercise the right to get married. As feminists have pointed out, these women are “too young” for choice, but apparently the right age for punishment.
Granted, “choice” in Indian marriages has a complicated history, and perhaps that is why the Indian government has minimized this consideration. Early marriage in India is the result of several deep-rooted societal norms, such as the belief that a woman’s honor is protected only if she is married, that a woman will be safe from sexual violence only if she is married, that early marriage will ensure a woman’s family will have a lower dowry, and that early marriage will prevent a woman from eloping with her chosen partner. Under India’s patriarchal norms, with their emphasis on women’s eligibility, chastity, and virtue, women do not have any agency regarding marriage—they are merely objects in transactions between families.
The Indian government did attempt to challenge these norms and progress women’s rights in 2006, with the Prohibition of Child Marriage Act. This Act prohibited the solemnization of child marriages and allowed for minors to declare their marriages void and to dissolve them. However, because of the societal acceptance and expectation of child marriage, this Act was not enforced. Even in 2016, ten years after this law was enacted, sixty-three percent of young women were married before the age of twenty-one. Among the poorest 20% percent of the population, the percentage of women marrying below the age of twenty-one was as high as seventy-five percent.
As to “choice” in marriage, the prominence of cases of child marriage despite the 2006 prohibition of such illustrates that choice is an illusion for many young women. There is a denial of the right to choose “when to marry,” as children are not capable of giving their consent freely. Similarly, the practice of forced marriages adhered to by families implicates denial of both the right to choose “when” and “if” to marry. Finally, cases where women choose whom to marry, but are prevented from doing so as a result of family or community pressures, involve denial of the right to choose “whom” to marry. At best, the lack of choice in the “when,” “if,” and “whom,” results in elopement with a chosen partner and a happy ending. At worst, the consequence is death, typically at the hands of a family member in an “honor killing.”
So, what is India to do when women’s “right” to marry and their right to live freely conflict in this way? The Universal Declaration of Human Rights under Article 16 explicitly recognizes that men and women have equal rights to marriage, during marriage, and at their marriages’ end. Article 16 also emphasizes that “marriage shall be entered into only with the free and full consent of the intending spouses.” This prong of the Declaration could be interpreted to encompass consent as to if a woman wants to marry, when she marries, and whom she marries. At the national level, the right to marry is not expressly recognized as a fundamental right under the Indian Constitution. However, the Constitution does recognize a number of the rights that underpin marriage, such as the right to personal liberty, the right to equality and the equal protection of the law, and the right to freedom of movement. As consent is implicated in all of these, perhaps the answer is that Indian women’s right to live life freely, that is choose the life they wish to lead, supersedes the “right to marry,” at least as envisioned by the citizens of India promoting forced marriages.
As to the age aspect of marriage, it makes little sense why India chooses to increase the minimum age for women rather than make eighteen also the marriageable age for men. The country is a signatory to the resolution adopted by the United Nations General Assembly in 1989, which recommended eighteen years as the minimum marriageable age. Additionally, the personal laws in India governing different religions all promote the minimum age of marriage for women as eighteen, except for the Muslim Personal Law (Shariat) Application Act, 1937, which provides that a boy and a girl who have attained puberty can marry each other. Finally, in most countries across the world, there is no differentiation between the majority age, which is eighteen years, and the eligible age for marriage.
Considering this, decreasing the marriageable age for men in the name of gender parity would certainly face less public backlash and outrage. Since 1978, the marriageable age for Indian men has been twenty-one years. The marriageable age for Indian women, relatedly, has always been younger than that, primarily because of India’s patriarchal belief that husbands need to be older than their wives. This also supports the idea that husbands should have bigger salaries than and be authoritative over their wives—altogether diminishing Indian women’s agency by highlighting their inferiority. As such, it would be a fundamental step for gender equality if India changed the law regarding men to allow them to marry at eighteen instead of changing the age for women, because the former would challenge the patriarchal norms that subjugate their counterparts.
Further, decreasing the marriageable age for men instead of increasing the marriageable age for women could effectively reduce the number of child marriages resulting from the proposal of the Prohibition of Child Marriage Act amendment itself. India is witnessing a surge in “panic” or “distress” weddings since the government’s proposal—parents have been scrambling to find suitable matches for their younger-than-twenty-one daughters, to swiftly compile dowries, to find priests to solemnize wedding ceremonies, and to ensure their daughters are married off well before the law goes into effect. Parents are willing to pay triple fees and have ceremonies take place in their homes rather than religious venues in efforts to expedite the marriage process, despite the illegality. Between 2015 to 2020, up to 200,000 cases of child marriage were stopped by the authorities. The Covid-19 pandemic has also contributed to the uptick of cases, leading families to marry off daughters even below the age of sixteen for “one less mouth to feed” and lower dowry demands in the face of a stunted economy. Considering this, the reality is that the current marriage law does not prevent Indian citizens from seeking child marriages and neither will the amendment increasing the marriageable age of women.
As to the policy arguments promoting the increase in the marriageable age for women, many state that it is sheer hypocrisy:
the government is cutting down funds on public health, it is privatizing the health sector, it is refusing to expand the system of food security even while prices of food items are increasing – and then, it expresses concern for women’s health. Instead of taking responsibility to increase expenditure on health and education, it wants to curb the rights of adult women in the name of reproductive health.
Enacting a law to increase the marriageable age of women to promote their agency while disallowing them meaningful choices in their “if,” “when,” and “to whom” marriage decisions is counterintuitive. Moreover, if the main objective in placing the age restriction on women is to prevent them from becoming unwed mothers (i.e. to protect their virtue), then the law ineffectively addresses this. In India, it is not unlawful to become an unwed mother. No law will punish a woman, or a girl, for becoming a mother before the “right time.” The Indian government believes that early marriage will invariably lead to early motherhood, but it seems to be conflating the age of marriage with the age of consent.
The age of consent in India is the same as the age of majority, that is eighteen years old. The Indian government, by raising the age of marriage to twenty-one years but keeping the age of consent at eighteen, deems it acceptable for women between this age range to engage in consensual sexual activities but unacceptable for them to get married. Instead of preventing women from compromising their honor and from engaging in sexual intercourse early on, the new marriage law amendment could have the unintended effect of promoting promiscuous behavior. As such, the Prohibition of Child Marriage (Amendment) Bill will not prevent women from getting pregnant and becoming mothers earlier. It will also not decrease the resulting maternal mortality rate. It will, however, increase policing of women’s bodies and their choices, sexual or otherwise. Ultimately, by reigning in a woman’s right to choose when, if, and whom she will marry and when she will have children, India is telling women that it does not consider them responsible enough to make their own decisions. This paternalistic notion is infantilizing and prohibits Indian women from exercising their human right to live their lives freely.
Similar to how enacting a law to increase the marriageable age of women to promote their agency while disallowing them meaningful choices is counterintuitive, refusing to invest in the healthcare and education that would allow for women’s agency is counterproductive. Child marriage continues to be most commonplace in rural areas of India, where women’s access to higher education, vocational training, sex education, and healthcare is limited. Changing the age of marriage for women in these areas to allow them to live their lives freely does not mean that they actually can. “Changes of legislation in isolation will not stop child marriage unless there are socio-behavioral changes among parents and the community… families need to be provided with appropriate livelihood opportunities.”
The Indian government needs to give women more—more institutions in rural areas, more funding for women’s organizations, more aid for women seeking secondary education, more programming to cultivate their skillsets, more support for women delaying the caregiving role, more information on the status of laws affecting them, and more opportunities to see themselves outside of their duties in marriage, even if that comes at the “expense” of Indian men. There needs to be more grassroots organization seeking legislation granting these rather than the marriageable age increase farce. One example is in Odisha, where the government was given the SKOCH award for combating child marriage by empowering adolescents and ensuring villages remain child marriage-free. The people of Odisha campaigned in schools to get students to pledge “no” to child marriage, they identified and supported children vulnerable to child marriage, and they surveilled the community to ensure that no child marriages were taking place behind closed doors. These are practices that need to be replicated by other Indian states.
In addition to significantly backing more women’s rights initiatives to work towards eradication of child marriage, India needs to adhere to the current law prohibiting the very same. The law rules that women below the age of eighteen and men below the age of twenty-one cannot get married, but it does not actually invalidate any marriage that is contracted by individuals below the permitted ages. The Indian government can stop the marriage process, but, in practice, if it is completed, such marriages are not invalid, only voidable by one of the minor parties. And even if a minor wants to void the marriage, they can only do so by an application to the court and within two years of attaining majority. Thus , if a fourteen-year-old girl is married off to a thirty-year-old man, she has to endure two years of marriage with him before she can attempt to dissolve her marriage. Further, the cases that are booked under the Prohibition of Child Marriage Act tend to be by parents preventing their daughters from pursuing self-arranged marriages, rather than cases in which parents are arranging marriages between their underage daughters to older men. In this way, the law is being used as an assault on women and their choices instead of a form of protection against choices made for them. If the Indian government is seeking to derecognize one, then it must derecognize the other as well.
Ultimately, revising the Prohibition of Child Marriage Act to make the marriageable age of men eighteen-years-old, investing in women-based programs and initiatives, and enforcing the Act—both in the interim and after the revision and investment—this is what will actually allow ‘desh ki beti’ to build a career for herself and become Aatmanirbhar.
- The Hindi term “desh ki beti” translates to “country girl” in English. In this context, it is referring to young women under the age of twenty-one that are from primarily rural areas with less focus on women’s education and career aspirations. ↑
- This Hindi term translates to “self-reliant,” and it aligns with the larger part of Prime Minister Modi’s policy campaign for a more “self-reliant India,” that is “Aatmanirbhar Bharat.” The Prime Minister’s objective is to empower young Indian women and make them more independent with the new marriageable age amendment. ↑
- Press Trust of India, Raising Women’s Marriage Age to 21 Will Enable Girls to Build Career, Become Self Reliant, Says PM Modi, Firstpost (Jan. 12, 2022), https://www.firstpost.com/india/raising-womens-marriage-age-to-21-will-enable-girls-to-build-career-become-self-reliant-says-pm-modi-10279091.html. ↑
- Sandeep Chachr and Ghasiram Panda, Raising Legal Age of Marriage for Girls: Change in Legislation Without Education Won’t Bring Gender Equality, DownToEarth (Dec. 27, 2021), https://www.downtoearth.org.in/blog/governance/raising-legal-age-of-marriage-for-girls-change-in-legislation-without-education-won-t-bring-gender-equality-80857. ↑
- Aarya Parihar, Achieving Parity in Legal Age of Marriage Without Addressing the Elephant in the Room, Jurist (Jan. 13, 2022), https://www.jurist.org/commentary/2022/01/aarya-parihar-marriage-legal-age-india/. ↑
- Id. ↑
- Bilal Kuchay, India to Raise Legal Marriage Age for Women, Activists Skeptical, Aljazeera (Dec. 16, 2021), https://www.aljazeera.com/news/2021/12/16/india-women-legal-marriage-age-activists-disaster. ↑
- Neeta Lal, Indian Parents Race to Marry Off Daughters as Officials Mull Raising Marriage Age, South China Morning Post (Jan. 11, 2022), https://cdn-i–scmp-com.cdn.ampproject.org/i/s/cdn.i-scmp.com/sites/default/files/styles/768×768/public/d8/images/canvas/2022/01/11/80e5e4cf-3402-4113-ab06-89e67d32e676_214fddf7.jpg?itok=8tnHXuWW&v=1641903909. ↑
- Brinda Karat, Opinion: Centre’s Hypocrisy in Raising Marrying Age for Women to 21, New Delhi Television Ltd. (Dec. 20, 2021), https://www.ndtv.com/opinion/centres-hypocrisy-in-raising-marrying-age-for-women-to-21-2660378. ↑
- Asmita Gosh, 5 Reasons Changing the Minimum Age of Marriage is a Bad Move, Oxfam India (Nov. 10, 2020), https://www.oxfamindia.org/blog/5-reasons-changing-minimum-age-marriage-bad-move. ↑
- Shireen J. Jejeebhoy, Raising the Minimum Legal Age of Marriage for Women to 21 Years is Neither Feasible nor Promising, Scroll.in (Sep. 3, 2020), https://scroll.in/article/971605/raising-the-minimum-legal-age-of-marriage-for-women-to-21-years-is-neither-feasible-nor-promising#:~:text=This%20year%2C%20in%20his%20Independence,mortality%20and%20improving%20nutrition%20levels%E2%80%9D. ↑
- Id. ↑
- Avani Bansal and Tanvi Bansal, Do Indian Women Have a Right to Choose Whether, When, and Whom to Marry?, King’s Student Law Review (Mar. 31, 2012), https://blogs.kcl.ac.uk/kslr/2012/03/31/do-indian-women-have-a-right-to-choose-whether-when-and-whom-to-marry/. ↑
- Id. ↑
- Id. ↑
- An honor killing is an extreme type of gendered domestic violence resulting from the social and cultural traditions of patriarchal societies. These killings occur to restore a family’s reputation or “honor,” which has been damaged by the victim’s, almost always woman’s, violation of strict norms pertaining to her sexuality. This could include refusing to enter into an arranged marriage, selecting a partner of her own without family input, being the victim of sexual assault, seeking divorce (regardless of whether the husband is abusive or not), or (allegedly) committing adultery. Honor killings focus on society’s perception that a woman has behaved in a way that “dishonors” her family and is thus deserving of an attack on her life. See, Dietrich Oberwittler and Julia Kasselt, Honor Killings, in The Oxford Handbook of Gender, Sex, and Crime 653, 653 ↑
- Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) at Art. 16. ↑
- Id. ↑
- See, India Const. arts. 21, 14, 19, 32. ↑
- While the right to “live life freely” is not explicitly articulated in the Universal Declaration of Human Rights, the Preamble and Articles 1-3 of the Declaration emphasize the “dignity and worth of the human person and in the equal rights of men and women…to promote social progress and better standards of life in larger freedom.” Better standards of life can incorporate the right of a person to make his/her own choices in creating the life he/she wishes to lead. ↑
- See, Karat, supra note 9. ↑
- See, Parihar, supra note 5. ↑
- Id. ↑
- See, Karat, supra note 9, 21. ↑
- See, Chachr and Panda, supra note 4. ↑
- Taran Deol, Modi Govt Considers Lowering Marriage Age for Males: Can Indian Men Handle It At 18?, The Print (Oct. 30, 2019), https://theprint.in/talk-point/modi-govt-considers-lowering-marriage-age-for-males-can-indian-men-handle-it-at-18/313366/. ↑
- Id. ↑
- See, Lal, supra note 8. ↑
- Id. ↑
- Id. ↑
- Shireen Jejeebhoy, Should India Raise the Minimum Age of Marriage?, India Development Review (Sep. 8, 2020), https://idronline.org/should-india-raise-the-minimum-age-of-marriage/. ↑
- Tarushi Aswani, India Proposes to Raise Legal Marriage Age for Women, The Diplomat (Dec. 28, 2021), https://thediplomat.com/2021/12/india-proposes-to-raise-legal-marriage-age-for-women/. ↑
- Shivangi Gangwar, Controversial Proposal to Raise Age of Marriage In India, Human Rights Pulse (Jul. 20, 2020), https://www.humanrightspulse.com/mastercontentblog/ycheqlo758dnvnlr4j1oprmm62o0d9. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- See, Chachr and Panda, supra note 4, 25. ↑
- Id. ↑
- Id. ↑
- See, Gangwar, supra note 33. ↑
- Id. ↑
- The Prohibition of Child Marriage Act, 2006, §3(3). ↑
- See, Gosh, supra note 10. ↑