Abhayaditya Singh and Pranathi S.

In this piece, the authors examine the NDA government’s proposed move to increase the minimum age of marriage for women. They argue that the proposed change would not curb the rampancy of child marriages and instead lead to unintended consequences: hindering women’s agency over their lives and disproportionately harming the marginalised.

Introduction

With the introduction of the Child Marriage Restraint Act (CMRA) in 1929, India for the first time set the minimum marriageable age of the girl child at 14. Subsequent amendments to the Act in 1949 and 1978 increased this age to 15 and 18, respectively. The Act replacing the CMRA, the Prohibition of Child Marriage Act of 2006, retained this bar. However, an amendment to the 2006 Act, introduced in the lower house of the parliament late last year, seeks to increase the minimum marriageable age for women from 18 years to 21. The move was based on recommendations made by a task force set up by the Ministry of Women & Child Development. The principal focus of the proposed amendment is addressing the rampancy of child marriage. The chairperson of the task force, Jaya Jaitly, claims that the move would also help alleviate related issues such as higher rates of infant mortality amongst child brides.

Faulty Reasoning

A Young Lives study based on data from the 2011 Census identified some of the core reasons for the occurrence of child marriages in India. The first reason leading to early marriages is societal gender norms that assign significance to the ‘chastity’ of the girl. The second key determinant identified in the study was lack of educational opportunities, which serves as both a cause and a consequence of child marriage. Since there exists a preference against educating girls on account of it being seen as a “bad investment”, their school lives are often cut short in order to get them married. Results from NFHS-4 show that the higher a woman’s level of education is, the higher her age will be at the time of her first marriage. The above two reasons are exacerbated by worsened economic conditions, as marrying off young girls is employed as a short term survival strategy, with the girls being viewed as an additional ‘burden’ on the family. Child marriages also take place with the assumption that they would keep the girls safe from gendered violence and improve the family’s material realities. An analysis of the available data shows that the median ages of marriage are lower for marginalised sections of the society, which is perhaps explained by the significantly higher school dropout rates and wealth disparity amongst Scheduled Caste and Scheduled Tribe groups. Coupled with the findings of a 2011 study, which stated that often the people who practice child marriage are aware of the pre-existing bar of 18 and 21 years for the respective sexes, there is little evidence to suggest that the proposed amendment would bring about any significant change in the existing condition.

Curtailing Women’s Choice

Increasing the age of marriage could lead to heightened parental control over women’s decision-making with respect to their sexual autonomy, education, and choice of spouse. As discussed above, girls are often married off early due to anxiety concerning sexual assault, engaging in premarital sexual intercourse, or self-initiated marriages. Early marriage is often considered as a means to preserve the family’s honour and to control women who defy societal expectations. A study by the Nirantar Trust shows that gender norms with respect to men also work against women. A father’s perceived masculinity is determined by his ability to control his daughter’s sexuality. 

As a result, daughters are compelled to abandon their studies and enter into forced or arranged marriages. The study further observes that lack of institutional support only exacerbates the problem. This diminishes young girls’ bargaining power to avoid marriage and pursue alternative activities or ambitions. It forces girls to remain with their parents, exposing them to the pressure of marrying young, thus prohibiting them from accessing alternative educational and livelihood settings.

It has been observed that most of the legal action under the PCMA was initiated by parents against the husband in situations where daughters left home on their own to marry the partners of their choice (65% cases). Only about 5% of the cases pertained to forced marriages, wherein the girls were coerced to get married. Also, while parents initiated about 67% of all cases under PCMA, only 7% of the cases were initiated by a child marriage prohibition officer—the state functionary designated for implementing the law. This makes it clear that this district-level functionary has limited knowledge or contact within vulnerable communities, and his post is more symbolic than effective.

The evidence shows stark disparity in accessing the law, with parents using the proceedings to assert control over their daughter, whereas the child marriage prohibition officer appears to have been the least likely actor in enabling legal recourse for girls. Therefore, the possibility of parents misusing the amended PCMA as a tool of oppression and a means to curtail the choice and autonomy of women who have attained the age where they can decide for themselves, cannot be ignored.

Disproportionate Impact on the Marginalized

As per NFHS-4, the median age at first marriage is 18.7 years among women aged between 25 to 49 years. However, the median age at first marriage varies with geography, caste, financial status, and educational qualification. Urban women marry later than rural women, the median age at first marriage for the former being 19.8 years, against 18.1 years for the latter. Women in the highest wealth quintile marry much later (20.8 years) than women in the lowest wealth quintile, who get married at the median age of 17.4 years. Similarly, the median age at first marriage is at 18.1 years, 18.4 years and 18.5 years among SC, ST and OBC groups respectively, whereas it is 19.5 years among other castes/tribes. The median age at first marriage among women with no schooling is 17.2 years, while that of women with 12 or more years of education is 22.7 years. This makes it apparent that women from marginalized sections, with lesser access to resources, are more likely to enter into early marriages.

Studies indicate that girls from poorer families and marginalized castes are sometimes married off younger due to the lower dowry requirements for younger brides who adhere to traditional gender roles. Taking on debts in order to pay for weddings and dowry appears to be the norm within poor households. Families at the junction of class and gender disadvantage, i.e., those who are poorer and have daughters, are driven to forego further education for their daughters and marry them off early in order to decrease dowry and reduce wedding costs. With the prevalence of social evils such as dowry, poverty, and illiteracy, the amendment, envisioned as a tool of empowerment, could very well push a large majority of women into illegal marriages. While enforcing the amended law and prosecuting the violators, disproportionate impact would fall on marginalized communities, since these are more prone to marrying their daughters young due to their social and material realities.

The Way Forward

The international consensus on the appropriate age of marriage seems already to be 18 years. Therefore, it makes little sense to focus on further increasing the minimum age, instead of remedying institutional inadequacies. Studies have shown that in order to ameliorate the child marriage problem, three areas require critical attention: education, economic incentivisation, and improving the health and nutritional status of girls.

A 2016 study indicates that the longer a girl is in education, the later she marries. This is corroborated by the data from NFHS-4. Further, it has been observed that conditional cash transfer programs have a positive effect on the age of marriage for girls. Finally, improving the accessibility of healthcare and nutritional facilities for girls is likely to them being seen as less of a “burden” on families. We know from the existing literature that any of these three, in isolation, will end up being woefully inadequate in addressing the problem at hand. Nonetheless, in these studies exists a strong suggestion that the confluence of these three factors would have an indubitable ameliorative impact on the rates of child marriage. A particular case in hand is the Berhane Hewan project from Ethiopia, which addresses the underage marriage problem by adopting the aforementioned methods, and has resulted in significant success in curtailing the problem.

Another issue present in the Bill’s Statement of Objects and Reasons relates to lowering the maternal mortality rate (MMR) in the country. MMR is usually measured as the number of deaths that occur per 100,000 live births. In line with the UN Sustainable Development Goals, India is working towards reducing this number to less than 70. As such, the nation has witnessed an incremental decline, as the MMR dropped from 212 in 2007-09 to 113 in 2016-18. With the lack of antenatal and postnatal facilities being seen as one of the core reasons for high MMR, greater weightage must be given to improving the existing healthcare infrastructure. Data from NFHS-4 conveys a narrative similar to the instances of child marriage: emphasis on education and removing infrastructural barriers seems to be the answer.

Raising the minimum marriageable age for women to the age of 21 seems to be a policy decision that does not correspond with findings from the existing literature on the topic. On the other hand, methods that improve the material conditions of women by providing education, greater access to opportunities to obtain their own livelihood, improving the availability of healthcare facilities etc. seem to be heavily backed by past research. Furthermore, they do not have the catastrophic side-effects of hindering women’s agency over their lives, and disproportionately harming the marginalised.

Abhayaditya Singh and Pranathi S. are third year law students at Gujarat National Law University.