From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Legal age of marriage , Related considerations
The Supreme Court has rejected a petition seeking a uniform minimum age of marriage for men and women stating that the matter is within the domain of the legislature and not the judiciary.
Central idea: The minimum age of marriage, especially for women, has been a contentious issue. It was evolved in the face of much resistance from religious and social conservatives.
What laws govern marriage age in India?
Following laws prescribe/mention 18 and 21 years as the minimum age of consent for marriage for women and men respectively:
- Special Marriage Act, 1954: It allows people from two different faith/religious backgrounds to come together in the bond of marriage
- Sarda Act, 1978: Named after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man, respectively.
- Prohibition of Child Marriage Act, 2006: It provides that the minimum age of marriage is 21 years in case of males, and 18 years in case of females.
Evolution of the idea: Age of Consent
- The IPC enacted in 1860 criminalised sexual intercourse with a girl below the age of 10.
- The provision of rape was amended in 1927 through The Age of Consent Bill, 1927, which declared that marriage with a girl under 12 would be invalid.
- The law faced opposition from leaders including Lokmanya Tilak, who saw the British intervention as an attack to create rift within family intuitions in the name of equal rights.
- A legal framework for the age of consent for marriage in India only began in the 1880s.
Central idea: Attainment of Majority
- The minimum age of marriage is distinct from the age of majority which is gender-neutral.
- An individual attains the age of majority at 18 as per the Indian Majority Act, 1875.
- The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevents the abuse of minors.
How this confers ‘Unequal Treatment’?
- Articles 14 and 21 of the Constitution guarantee the right to equality and the right to live with dignity.
- They are clearly violated by having different legal age for men and women to marry, argue activists.
Supreme Court rulings supportive to this
- NALSA vs. Union of India, 2014: The Supreme Court while recognizing transgenders as the third gender said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.”
- Joseph Shine v Union of India, 2019: The Court decriminalized adultery and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.”
Contention over different legal standards
- No rationale behind: There is no reasoning in the law for having different legal standards of age for men and women to marry.
- More of religious decree: The laws are a codification of custom and religious practices.
- Stereotype for male dominance: The Law Commission consultation paper has argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
- Promotes premature marriage of girl child: Women’s rights activists have argued that the law also perpetuates the stereotype that women are more mature than men and therefore, can be allowed to marry sooner.
- Motherhood complexities: An early age of marriage, and consequent early pregnancies, also have impacts on nutritional levels of mothers and their children, and their overall health and mental wellbeing.
- Other factors: Early marriage age has latent outcomes such as early dropouts from school, deprivation from higher education etc.
Why is the law being relooked at?
- Prevalence of child marriage: Despite laws mandating minimum age and criminalizing sexual intercourse with a minor, child marriages are very prevalent in the country.
- Bring gender-neutrality: From bringing in gender-neutrality to reduce the risks of early pregnancy among women, there are many arguments in favour of increasing the minimum age of marriage of women.
- Protection from abuse: This will essentially outlaw premature girls marriages and prevent the abuse of minors.
- Women empowerment: The decision would empower women who are cut off from access to education and livelihood due to an early marriage.
Policy measures in this regard: Jaya Jaitly Committee
- In June 2020, the Ministry of WCD set up a task force to look into the correlation between the age of marriage with issues of women’s nutrition, prevalence of anaemia, IMR, MMR and other social indices.
- The committee was to look at the feasibility of increasing the age of marriage and its implication on women and child health, as well as how to increase access to education for women.
- The committee has recommended the age of marriage be increased to 21 years, on the basis of feedback they received from young adults from 16 universities across the country.
- The committee also asked the government to look into increasing access to schools and colleges for girls, including their transportation to these institutes from far-flung areas.
- Skill and business training has also been recommended, as has sex education in schools.
- The committee said these deliveries must come first, as, unless they are implemented and women are empowered, the law will not be as effective.
Criticism of the move to raise the legal ages
- Promote illegal marriages: Such legislation would push a large portion of the population into illegal marriages leading to non-institutional births.
- Ineffectiveness of existing laws: Decrease in child marriages has not been because of the existing law but because of an increase in girls’ education and employment opportunities.
- Unnecessary coercion: The law would end up being coercive, and in particular negatively impact marginalized communities, such as the Scheduled Caste and Scheduled Tribes, making them law-breakers.
- Enacting Legislation: Establishing a Uniform Minimum Age of Marriage for Both Men and Women
- Effective Implementation and Enforcement: Preventing Child Marriages and Gender-Based Discrimination
- Addressing Root Causes: Improving Access to Education and Healthcare, Promoting Women’s Participation, and Reducing Gender-Based Violence and Discrimination
- Coordinated Multi-Sectoral Approach: Involving the Government, Civil Society and religious scholars.
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