Age and marriage

A controversial circular from the government and the demand by some Muslim organisations in Kerala to let Muslims follow their personal law with regard to the lower age of marriage spark a debate.

Muslim women offering prayers on the occasion of Ramzan at Marine Drive in Kochi on August 31, 2011. A positive outcome of the controversy is that arguments against the government circulars and the move by the Muslim organisations have come from within the Muslim community itself.

IN the past few months, Kerala has been witness to a persistent controversy over moves, allegedly with the silent support of the Muslim League, a prominent partner in the Congress-led coalition government, to challenge the provisions of the Prohibition of Child Marriage Act, 2006, especially in the grey area where they come into conflict with Muslim personal law. While the Act of 2006 lays down the minimum age for marriage of all Indian citizens as 21 for men and 18 for women, Muslim personal law, it is argued, allows the “age of puberty” to be considered as the age of marriage.

The demand is to let Muslims follow their personal law in this matter, to lower the age of marriage, especially of Muslim women—a claim that goes against the grain of the long resistance in India to end the scourge of child marriage.

The controversial claim is being raised in a State with a large and progressive Muslim population that has grown used to enjoying the benefits of educating the girl child and delaying the age of marriage—and at a time when doubts have been raised again about the commitment of the Central government itself to end the problem of child marriage.

Despite being a country with one of the largest number of child brides, India recently refused to co-sponsor—and abstained from voting in—the first-ever global resolution for elimination and prevention of forced child marriages at the United Nations General Assembly.

The chronology of the recent events in Kerala is instructive:

On June 14, the State Local Administration Department headed by a Muslim League Minister issued a circular to all civic bodies in Kerala allowing, in the case of Muslims, the registration of marriages in which the groom was not yet 21 and the bride was not yet 18 (but above 16) at the time of the marriage if it took place with the consent of parents and was supported by a certificate from the religious authority concerned.

The circular claimed, strangely, that such marriages had legal validity as the “Muslim Marriage Act of 1957” (a non-existent law) does not insist on the minimum age of 21 and 18 for men and women respectively, and the Prohibition of Child Marriage Act, 2006, does not say that the marriage between a man below 21 and a woman below 18 “is void”. (However, it did not mention that the 2006 law does say: “Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party (bride or groom) who was a child at the time of the marriage.”)

It was further explained that the circular was issued because the officials in several local bodies were refusing to follow a similar direction sent earlier in response to a clarification sought on the matter by the Director of the Kerala Institute of Local Administration (KILA), an autonomous training and research institution for local bodies under the government. Moreover, it was said, there were several complaints from among Muslim community members that requests for registration of marriages already solemnised were being denied because the bride had not turned 18 as specified in the Act of 2006.

However, following the hue and cry that the circular raised and allegations that it was meant to reduce the marriage age of girls to 16 by circumventing secular laws of the country, the department issued a second circular which said that the marriages of Muslim men below 21 and Muslim women below 18 (but above 16) that took place until June 27, 2013—the day the circular was issued—alone could be registered.

“Factual errors” in a circular It was explained that the government decided to have a relook at the original circular as it felt that its true intent had been “misunderstood”, some “factual errors” had crept into it and that, anyhow, it was not meant to dilute the provisions of the Prohibition of Child Marriage Act, 2006. Instead, it was argued, such a direction became necessary because many Muslim couples who had been married and had been living together (and their children) were facing genuine difficulties (for example, in getting passports and other documents for migration to foreign countries for work) as they could not get their status registered legally.

Moreover, it was also clarified that the decision was based on (i) the 2006 order of the Supreme Court in the Seema vs Ashwini Kumar case (which said that “though the registration itself cannot be proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it had great evidentiary value in the matters of custody of children, right of children born from the wedlock of two persons registered and the age of parties to the marriage”.) and, (ii) some recent orders of the Kerala High Court that said marriages between couples who were below the legal minimum age could also be registered based on the particular circumstances of each case.

Even as questions were being raised about the propriety of a government department trying to introduce such a change through a circular without the approval of the State Assembly, there was a sudden uproar against, in what eventually turned out to be a rather typical case, especially in Muslim-dominated districts of Kerala, the dangers involved in giving any kind of loophole or sanction for child marriages under whatever pretext.

It turned out that a 17-year-old girl, brought up in an orphanage in Malappuram district, had been married off to a citizen of the United Arab Emirates (UAE) on June 13. However, after spending several days in various locations in the country with the girl, the man deserted her and fled to the UAE, and the girl and her wardens found themselves in a predicament all too familiar in north Kerala (and widely known as “’Arabikkalyanam” or “Mysore Kalyanam”, depending on whether the “groom”, in most cases, men much older than the child bride, was from “Arabia” or parts of Karnataka).

As per the 2006 law prohibiting child marriage, whoever performs, conducts, directs or abets any child marriage shall be punishable under the Act. A police action against the victim’s parents and orphanage authorities, inspection of records at the orphanage, therefore, added to the confusion.

Muslim organisations’ demand Subsequently, on September 22, nine Muslim organisations led by the Samastha Kerala Jamiyyathul Ulama met at Kozhikode and decided to move the Supreme Court seeking “constitutional protection for the Muslim community in matters involving their personal law, including the age of marriage”, and a solution to the problems faced by girls (and their families) who had to be married before the age of 18 “under the force of certain circumstances”.

The meeting also reportedly came to the “unanimous conclusion” that “since Muslim personal law has not prescribed an age for marriage, the laws implemented in India that are in conflict with it are an infringement on the fundamental right to religion of Muslims”.

Besides the representatives of the Ulama, those of the Muslim League (including a prominent MLA and a spokesperson of the party), and orthodox organisations such as the Jamaat-e-Islami Hind, factions of the Kerala Nadvathul Mujahideen, the South Kerala Jamiat Ulema and the Kerala Jamiat Ulema took part in the convention.

A few organisations that participated in the convention later reportedly distanced themselves from the move. Muslim League leaders, E.T. Mohammed Basheer (national general secretary) and P.K. Kunhalikkutty (Industries Minister), however, claimed that the members of the League “did not participate in the meeting as party representatives” and that the decisions taken at the meeting, including the one on the age of marriage of Muslim girls, were those “concerning religion taken by religious organisations”. “As a political party the Muslim League is not responding to the decision of the religious organisations,” Kunhalikkutty said.

The Muslim League sought to take cover under such a non-committal position on an important issue affecting the community, even as its prominent members were leading the demand for reducing the age of marriage of girls and right when women’s groups and progressive organisations in Kerala were debating the need for increasing the age of marriage of girls further from the legally approved 18 years.

Even though the Local Administration Department was forced to withdraw the controversial first circular following the intervention of Muslim women’s organisations, several progressive groups, including those from within the community and a large section of the media, the Muslim League’s silent but total support to the subsequent move by religious organisations to approach the Supreme Court is a revealing indication of the dominant thinking within the second biggest party in the State’s coalition government.

Naturally, it has led to the allegation that such a sudden demand on a rather familiar, controversial issue (already conveniently described as “the second Shariat struggle”) is a part of a carefully crafted move for pre-election communal consolidation launched by the Muslim League. The League would benefit a lot from a consolidation of Muslim votes in Kerala in what is surely going to be a very difficult and crucial election for the ruling coalition United Democratic Front led by the Congress.

Child marriages in India The controversy needs to be seen in a larger context. Even eight decades after the first law against it was introduced in India, child marriage is still widely prevalent in many States. According to a 2009 study based on data from the National Family Health Survey III, for example, 44.5 per cent of women aged 20 to 24 were married off before they attained the legal minimum age of 18, 22.6 per cent before they turned 16, and 2.6 per cent before they were 13.

Comprehensive and reliable figures on the actual number of child marriages taking place in Kerala are not available. But newspaper reports, police cases, some local studies, and applications submitted for registration of some such marriages indicate that the practice is still common in the State, though not to the extent it was in the past.

They indicate that though a majority of child marriages in Kerala, perhaps, take place within the Muslim community, it is not confined to any one community; a number of such marriages, which take place with the consent of parents, are kept a secret until the girl attains the age of 18; at least in some cases, forced marriages of girls with much older men continue to take place with parental approval; and, as in the rest of the country, child marriage is a practice that still has both social and religious sanction and is often justified.

Prominent among the arguments put forth in Kerala in the wake of the controversy are: child marriage guarantees the girl’s economic, social and personal safety when parents are unable to provide it; it reduces the heavy burden of dowry otherwise, which forces parents to marry off their daughters early; it protects girls against sexual violence; and it lessens the fear of “love marriages” and “sexual promiscuity” and consequent social and religious dishonour.

In an editorial page article in Chandrika , the Muslim League’s party newspaper, one among several such reports justifying the demand, a convener of the September 24 convention, Musthafa Mundupara, argues that though child marriages had been prevalent in Kerala in the past, of late, they happen only rarely and under special circumstances. “There are situations where girls who have no other means of support, for example, because they are orphans, get married to ensure their future security. Some girls, who are academically oriented but are unable to pursue higher studies because of their financial situation seek financially sound grooms and gain further education and jobs and ensure their safety. There are also cases where girls get caught in love marriages and are forced to get married before they reach the age of 18. As far as Islam is concerned, it is impossible to recognise or give sanction to love marriages,” he said.

The article, however, maintains that “it is nobody’s case that all Muslim girls should be married off before the age of 18” and that the convention, in fact, decided that the community should be “made to understand through awareness campaigns” that “such marriages should not be encouraged”. “But it also needs to be considered that this law should not prove troublesome for couples who get married before the age of 18 under unavoidable circumstances,” it says.

The controversy has, once again, brought to light the complexities involved in trying to stamp out the problem of child marriage in the peculiar legal, religious and socio-cultural context in India.

Legal loopholes Several legal loopholes continue to remain unaddressed by the legislatures. Also the implications of various personal laws, provisions of the Indian Penal Code and the secular law on child marriage are often at odds with one another, especially with regard to the issue of “permissible age at marriage” and the age at which a bride or groom can consent to a marriage.

There are also contradictions in the rulings of various courts on these issues. While in most cases, courts have held that underage marriages between 16 and 18 years, even with the consent of the girl, are void, they have also at times sought to see a distinction between child marriages, “where children are forced into them, and marriages where they fall in love and marry out of their own free will”.

There are also issues raised as part of the latest controversy with regard to the rationale for fixing a mandatory age of marriage, about the veracity of the interpretation of personal laws on the question of an appropriate age of marriage and inconsistencies in court verdicts as to the age at which girls are able to choose a partner on their own.

A positive outcome A positive outcome of the controversy, however, is that the arguments have come from within the Muslim community in Kerala itself, along with those of the Left and other progressive forces and the media in general. They say, among other things, that the “personal and economic safety” and “social honour” of child brides that are sought to be obtained through child marriages come at a high price, and that often, such marriages happen without the girl’s consent.

The past three decades have seen dramatic changes within all sections of Kerala society, including Muslims of the once-backward north Kerala districts, as a result of remarkable advancement in the fields of women’s education, policy changes such as reservation of seats and positions for women in the local bodies, and the popularity and spread of the liberating women’s movement, “Kudumbashree”, and the employment and empowerment opportunities that they all have provided to women at the grass roots.

That has been a relief because, during the same period, there have also been trends in the State that could have otherwise pulled the community back to anachronistic social traditions and practices and perpetuated the misery of women in the name of religious and social mores.

It is well understood among all sections of Kerala society that marrying off young girls before they are physically and psychologically mature is a violation of their human rights, that it often condemns them to lasting misery, leads to serious health consequences for the brides, makes them vulnerable to multiple pregnancies and abortions, sexual abuse, commercial sexual exploitation, domestic violence and enslavement, denies them access to education, and is truly an indication of the discrimination in society that considers the girl child as a “burden” suitable only to be married off. Outmoded arguments that were used effectively for political or communal consolidation perhaps a quarter century ago—for example, during the Shariat controversy—may no longer work in Kerala, as the opposition to the very idea of child marriages from the youth and students wings of the Muslim League itself—along with Muslim social organisations, intellectuals and women in various walks of life—seems to have proved at long last.