The Bill will not help in eliminating child marriages as it has merely increased the age without addressing the major factors which contribute to child marriages
Recently, Parliament passed the Prohibition of Child Marriage (Amendment) Bill, 2021 which increased the minimum legal age of marriage for women from 18 to 21 years. The Bill was introduced in the lower house on the pretext of gender parity, by providing equality to women in matrimony after 75 years so that they come at par with men, whose minimum legal age of marriage is 21 years. The government advocated that as women will be in a better position to decide for themselves, the Bill will try to eliminate early pregnancies and also reduce infant and maternal mortality rates and other health complications in case of child pregnancy.
One section of the society opposed the Bill while another section wanted it implemented.
Bill not enough
The Bill will not help in eliminating child marriages as it has merely increased the age without addressing the major factors which contribute to child marriages such as a change in perceptions of the family members that groom demands less dowry for younger women, the financial liability of feeding the girl child and other societal pressure to marry off the daughter to save the family honoor before she loses her virginity to elope with her lover belonging to another caste.
As a matter of law, child marriages are voidable at the option of the aggrieved party, guardian or next friend but it can be inferred that in reality things might be different when it comes to an annulment of forced child marriages as there are cases when the guardian or the next friend marries off the girl so that the chances of them approaching the court to declare the marriage as void on the behalf on the girl are negligible as they are the ones who got her into this at the first place.
Another way of looking at is if the woman approaches the court to claim her rights, the man can easily rescind the voidable marriage by declaring it as void and be free of any matrimonial obligations. Another legal loophole is that it is not mandatory to register the marriages under the Protection of Child Marriages Act, which leads to unreported incidents of child marriages in India.
Even though the latest Bill was introduced in good faith, it is far from eliminating child marriages. On the contrary, it might increase female foeticide in the country because it creates an obligation of additional three years to feed the girl child.
One of the primary reasons behind this mindset is the patriarchal approach that considers sons as more useful than women as they are going to be the support system of the family during tough times while the daughter is going to be a part of her husband’s family. Dowry is another contributing factor as the family has to make a bride price for the woman at the time of her marriage; in order to avoid that, the female gender is not given preferential treatment.
Secondly, the mean age of marriage in India has increased to 22.1 years and women are already getting married late, so this measure is an unnecessary legal sanction because nowadays the idea of women getting married after successive levels of education is psychologically becoming normalized. Youngsters have even resorted to live-in relationships to figure out if they are ready to tie the knot. The Bill will majorly affect the rural population having conservative beliefs. The argument that the Bill will legally ensure that the girl child completes higher education till the age of 21 is not strong as merely giving time to the woman is not enough to ensure the elimination of child marriages; most families are forced to marry off their daughters as education is not free after Class 8 and they are left with no other choice.
It can be concluded that the Bill will not be able to fulfill its objective of eliminating child marriages because it is not enough to merely raise the marriage age. What is required is a change in the legal mechanism -- i.e. by declaring child marriages from voidable to void.
What must be done?
Another thing that can be done by the government is to come to terms with the fact that the problem of child marriage is more of a social than a legal issue, which requires a change of mindset in society. This can be dealt with by supporting the community training programmes, allocating a larger budget towards the education of the girl child and giving economic opportunities to the women to make them financially independent.
(Harsh Mahaseth is a Assistant Professor and Assistant Dean (Academic Affairs) at Jindal Global Law School, O.P. Jindal Global University, India. Sanjana Chib is a third-year law student at Guru Gobind Singh Indraprastha University. Views are personal. He can be contacted at firstname.lastname@example.org)