The Prohibition of Child Marriage (Amendment) Bill has a flawed notion of gender justice

The Prohibition of Child Marriage (Amendment) Bill, which raises the age of marriage of women from 18 to 21, strikes a blow against women’s empowerment and leads to apprehensions that it will curtail the autonomy of women.

Officials inspecting and verifying the age of bridegroom and bride at a mass marriage in Honagera village in Yadgir taluk, Karnataka on April 25, 2016.

It has become a habit of sorts for the National Democratic Alliance government to usher in legislation that either no one wants or that defies logic. After the farm laws that farmers did not want and the law criminalising triple talaq that Muslim women did not want, the government has done it again. On December 16, the Union Cabinet approved a proposal to raise the legal age of marriage for women from 18 to 21, based on the recommendations of a NITI Aayog task force. On December 20, the Prohibition of Child Marriage (Amendment) Bill, 2021, was introduced in the Lok Sabha. It has been sent to a Standing Committee. According to the Bill, a child is defined as “a male or female who has not completed 21 years of age”.

In the statement of objects and reasons, it has been argued that the “highly pernicious practice of child marriage” continues despite the Prohibition of Child Marriage Act (PCMA), 2006, and there is therefore “an urgent need to tackle this societal issue and bring in reforms”. The statement adds that enactments such as the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Muslim Personal Law (Shariat) Application Act, 1937, the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969, relating to the age of marriage do not provide a uniform age of marriage for men and women. It says that existing laws do not “secure the Constitutional mandate of gender equality in marriageable age among men and women” and that women were put at “a disadvantageous position with regard to education, vocational education, attainment of psychological security and skill sets”. It also says that it is critical that girls become self-dependent by entering the employment sphere and becoming part of the workforce before they get married. Bringing down teenage pregnancies, reducing stillbirths, miscarriages, responsible parenting (or taking better care of the children) are the other imperatives listed in the statement of objects and reasons for raising the age of marriage to 21.

The Bill has therefore been brought forward “to address the issues of women in a holistic manner”, such as women’s empowerment, gender equality, increasing female labour force participation, making women self-reliant, and enabling them to take decisions themselves. By amending the PCMA, 2006, the Bill aims to bring women on a par with men in terms of marriageable age, overriding all existing laws, including any custom, usage or practice governing the parties pertaining to marriage.

The ten-member task force of the NITI Aayog, whose recommendations had inspired the Cabinet decision to amend the PCMA, was set up on June 4, 2020, under Jaya Jaitly, former Samata Party president. According to a government release, its terms of reference were to examine the “correlation of age of marriage and motherhood”, with key parameters such as maternal and infant health, maternal mortality ratio, infant mortality ratio, total fertility rate, sex ratio at birth and child sex ratio. The task force was also asked to suggest measures “to promote higher education among women” and to suggest legislative instruments in existing laws to support its recommendations. At the time of writing the story, the report of the task force had not been made public. In interviews to the media, Jaya Jaitly stated that one of the recommendations had been to raise the age of marriage for women from 18 to 21. It is pertinent to point out here that raising the legal age of marriage for girls was not one of the specific mandates of the task force.

Whatever be the reasoning, no one quite believes that the decision was taken out of genuine interest to discourage child marriage, promote women’s education especially higher education or for women’s empowerment in general. There is an understanding among women’s groups that merely by increasing the age of marriage, the rate of child marriages will not come down as there are primarily economic factors coupled with a few cultural factors that lead to early marriages among women. Even so, wherever there has been better access to affordable and quality education, and better economic indicators, the age at which women were married was more than 18. This has been revealed in the latest round of the National Family Health Survey (NFHS), which shows wide variations across States and Union Territories in the proportion of women marrying under 18.

Rising Gross Enrolment Ratio

The age of marriage debate has done two things. One, by legally raising the age of marriage from 18 to 21, it places the onus of almost everything, including marrying at the “right age”, on the poor and on women in particular. Second, it deflects attention from the government’s own failure to provide for those enabling factors with matching investment. Increasing the age of marriage does not automatically translate to women acquiring more higher education or joining the labour force in huge numbers. This is best illustrated by the gross enrolment ratio (GER) in higher education. The GER of women in the age group 18-23 has been rising since 2001-02, when the legal age of marriage was 18.

While addressing women’s self-help groups in Prayagraj on December 21, Prime Minister Narendra Modi mocked the opposition for objecting to the raising of the age of marriage for women. He said his government had raised the age of marriage so that girls could study and progress. According to the Ministry of Education, the total GER in higher education (in the age group 18-23) in 2001-02 was 8.07 per cent (6.71 for women and 9.28 for men); this went up to 11.58 per cent in 2005-06, of which women constituted 9.35 per cent and men 13.54 per cent. In 2010-11, the total enrolment went up to 19.4 per cent, of which women accounted for 17.9 per cent and men 20.8 per cent. In 2014-15, the GER further jumped to 24.3 per cent, of which women accounted for 23.2 per cent and men, 25.3 per cent. In 2019-20, the GER in higher education was 27.1 per cent, and women exceeded the total with 27.3 per cent, leaving men behind at 26.9 per cent. Therefore, there has been a steady increase in enrolment in higher education by women even when the legal age of marriage was set at 18.

Enrolment in education has gone up over the years because of the aspirations for such education across the spectrum and not because of any special efforts by successive governments at the Centre. If it were so, then the public investment in education would have gone up. That this has not happened was accepted by the National Education Policy document itself. Instead, what has happened is an expansion of the private sector in education or an expansion of distance education rather than regular education.

The rise in enrolment in higher education and particularly that of women has been a feature over the last two decades. The age of marriage for women at 18, therefore, has not been a debilitating factor. It is the lack of more state-run and state-funded educational institutions, and not age of marriage, that has prevented more women from enrolling in higher education.

Even if education enrolment rates have risen for women in higher education over the years, they have not been accompanied by an increase in women’s participation in the skilled labour force. Raising the age of marriage is not sufficient to address this. Women are already in the labour force but part of the underpaid and overworked unorganised sector labour force. Where women are part of implementing the government’s schemes as workers of the Integrated Child Development Services or as Accredited Social Health Activists, they are paid measly honorariums without any pension or any other form of social security. Women’s groups such as the All India Democratic Women’s Association (AIDWA) and others have pointed out that the government needs to address these stumbling blocks to women’s empowerment rather than seek recourse to controlling the lives of women by raising the age of marriage. Quoting the Ministry of Statistics and Programme Implementation, the AIDWA, All India Progressive Women’s Association and the National Federation of Indian Women said that the mean age of marriage had increased to 22.1. They said that the government should fix the minimum age of marriage at 18 for all persons and withdraw the Bill.

In 2008, the Law Commission recommended a uniform age of marriage for boys and girls at 18. The Indian Majority Act, 1875, allowed persons to enter into contracts at the age of 18. The Convention for the Elimination of All Forms of Discrimination Against Women recommended 18 as the minimum age of marriage.

Women’s groups also said that the Right to Education Act should be extended to 18 years in order to discourage girl children from dropping out of school. They added that the government should provide free and quality education for women from “KG to PG”. The Bill, on the other hand, will increase patriarchal violence against women who wanted to marry between the ages of 18 and 21. It would criminalise all such marriages as “child marriages” and deprive women and children born from such unions from claiming their entitlements, including health care rights.

It is also baffling that while the proposed Bill sought to correct “age related to marriage” features in other laws including personal laws, it glossed over the anomaly in the Child Labour (Prohibition and Regulation) Act. This particular legislation prohibited employment of children under 14 but through an amendment in 2016, allowed for employment of children between 14 and 18 except in hazardous occupations and processes. Therefore, while it was acceptable under one law to employ persons between 14 and 18, making adolescents work as adults, it was not acceptable under another that they could exercise their right to marry or even exercise their right to education until they were 18.

Raising the age of consent

Despite vehement opposition from women’s groups, the age of consent was raised from 16 to 18 by the 2013 Criminal Law Amendment Act. The question now was whether this would be further raised to 21 to bring it on a par with the revised age of marriage of women. The raising of the age of consent by the 2013 was problematic as it refused to recognise the reality that many young persons between the ages of 16 and 18 engaged in consensual sex. According to the 2013 Act, an act of sexual activity under 18, even if consensual, stood criminalised, thereby bringing it under the purview of statutory rape. There were other contradictions too. A person upon reaching the age of 18 could vote but could not exercise the right of choice to marry.

Therefore there must have been reasons other than gender equality that lay behind the singular focus of raising the legal age of marriage. Women’s groups are apprehensive that it will result in persecution of young people who are desirous of marrying and curtail the autonomy of women. In the absence of the enabling factors, including the economic one—there is ample literature, including a Planning Commission study on child marriages, to show that there is a close link between poverty and child marriage—such a strictly law-based intervention will result in more clandestine child marriages and persecution of families that are already economically and socially vulnerable.

National Family Health Survey

According to the most recent NFHS 5 (2019-2021), the proportion of women who got married under the age of 18 had declined to 23.3 per cent, from 26.8 per cent as reported in NFHS-4. Around 17.7 per cent of men in the age group 24-29 had been married under 21. The total fertility rate (the number of children a woman had in her lifetime), too, had declined to 2.0 from 2.2 in the previous survey.

There were wide variations in the age at which women married across States and Union Territories. If 40.8 per cent women were married off before the age of 18 in Bihar, it was 1.3 per cent in Lakshadweep and 6.3 per cent in Kerala. In Bihar, only 55 per cent of women were literate while the corresponding figure in Lakshadweep and Kerala was 95.2 and 97 per cent respectively. There was a strong correlation between education levels and age of marriage. Yet there was a decline across the board of women who had got married under the age of 18, including in States with backward educational and social indices.

For instance, in Uttar Pradesh, where the Prime Minister justified raising the age of marriage while addressing a programme on women’s empowerment, 15.8 per cent of women were found to be married under the age of 18, a decline from 21.1 per cent in NFHS 4. In Chhattisgarh, the decline was sharper, from 21.3 to 12.1 per cent; in Haryana, there was a decline of 7 per centage points. Even in Jharkand, where 32.2 per cent of women had been married before the age of 18, the numbers had declined by 5 percentage points since the last NFHS. In Rajasthan, though rather high at 25.4 per cent, it had declined by 10 percentage points since the last survey. Some 28.2 per cent men in Rajasthan were also married before the age of 21. In Madhya Pradesh, a similar decline from 32.4 to 23.1 per cent was observed in the case of women marrying under 18. In Punjab, it was much lower overall, at 8.7 per cent. It dipped further in Puducherry, 6.5 per cent (10.7 in NFHS 4).

Sushila, a domestic worker, asked: “What about those who fall in love? Where will they go? They will elope and get married. They won’t wait till they turn 21. The government cannot tell them they cannot marry till they are 21.” If the government was really concerned about women, she said, it should take steps to make the environment safer for young girls. She told Frontline : “We do not let our young girls go out on their own whether in the cities or in the village. We fear for their safety. What has the government done for poor people that they should listen to them? We cannot survive with the income of our menfolk, which itself is not certain. During the lockdown there was no work. We survived only because of domestic work. Our children have to work early on once they attain puberty. There is no other way.”

Sushila’s daughters and daughters-in-law are all domestic workers, married off within a year or two after they attained puberty. A migrant from Bihar, Sushila has worked as a domestic worker for 20 years, living in vacant plots of agricultural land in Ghaziabad in western Uttar Pradesh.

The concerns of Sushila and others like her are valid. Their needs go beyond the tokenism of increasing the age of marriage which they say will end up further persecuting youngsters and their families. Violations of the PCMA will entail rigorous imprisonment of up to two years for men accompanied with a fine of up to Rs. 1 lakh. The problem is not with Sushila and other working-class women. They easily see through the chimera of a law that is cosmetic at best but encompasses punitive measures for its violation.