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‘Differential age of marriage strikes at the root of equality’

Published : Nov 09, 2018 12:31 IST T+T-

Jayna Kothari is a co-founder of Centre for Law and Policy Research, Bengaluru.  She practices as a counsel in the Karnataka High Court and in the Supreme Court.  She has been awarded the Wrangler D.C. Pavate Fellowship in Cambridge University . Her research and practice interests are in constitutional law, including the right to education, health and housing, gender, disability rights and environmental law. Her book, The Future of Disability Law in India was published in 2012 by Oxford University Press and is one of the finest books on disability law in the country.

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In this interview, she shares her thoughts on the issue of uniform marriage age for boys and girls, following a proposal in its favour by the National Human Rights Commission (NHRC). Excerpts:

Is the National Human Rights Commission's proposal on uniform marriage age well-reasoned?  Did you attend the  national conference  on child marriage held in August?  Can you throw some light on the deliberations on this issue?  

The NHRC has made many important recommendations for the ending of child marriage, and this recommendation for a uniform age of marriage is especially important and is based on not only the recommendations of the Law Commission, but also India’s international obligations and the context of child marriage in India. The Centre for Law and Policy Research attended this national conference and there were important deliberations on the need for a uniform age of marriage for boys and girls. The differential age of marriage in the law was criticised as discriminatory and based on patriarchal notions of marriage. Because of this differential age of marriage, though a boy can opt out of the marriage till the age of 23 years, a girl can only do so till the age of 20 years (two years after reaching the age of majority). This differential age of marriage also leads to power imbalances and greater inequality within the marriage for girls who are much younger. For all of these reasons, it was strongly recommended that there should be a uniform age for marriage.

What are NHRC’s reasons for supporting this proposal?

The NHRC has based its recommendation on the Law Commission’s Report No.205, published in 2008, and on the fact that there was a  uniform age of marriage for girls and boys in over 125 countries in the world. The Law Commission report states that there is no scientific reason for a differential age.    

Internationally, the trend is in favour of uniformity.  Should we not follow this trend?

Yes, we should. Uniform age of marriage for boys and girls has been recommended by CEDAW [Convention on the Elimination of All Forms of Discrimination Against Women] in Article 16. Article 16 states that s tates parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure the equality of men and women within marriage. These include equal rights to enter into marriages and all rights within marriage. Article 16 ( 2) also requires  s tates parties to frame legislation to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory. There is no differential age for marriage for boys and girls mentioned in the CEDAW. This is also particularly important if we want to ensure that there are equal rights to girls and women within marriage and families.

Recently, the Supreme Court imposed Rs.25,000  as costs on a petitioner who sought its directions on uniform marriage age.  Do you think it is for Parliament to amend the law and not for the judiciary to step in?

In this petition, the plea was not for uniformity in the age of marriage, but for lowering of the age of marriage for boys to 18 since in other legal provisions for majority, such as the right to vote, the age was 18 for males. I do think that in the case of uniform age for marriage, Parliament should amend the law. However, when there is blatant inequality and a violation of fundamental rights, the judiciary has stepped in, by either reading down a provision of the law or giving it a broader interpretation. It has done so in Navtej Singh Johar,  where it read down Section 377 of the Indian Penal Code, and also in   Independent Thought , where it read down the exception to Section 375 of the IPC for marital rape for minor wives to be up to 18 years.