The National Family Health Survey 2019-21 (NFHS-5) released in November 2021 revealed that 23.3 percent of women in India in the age group 20-25 got married before they turned 18. On December 21, 2021, the Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in the Lok Sabha with the intent of raising the legal marriageable age of women. The explicit purpose behind the proposed increase was safeguarding women’s health and socio-economic well-being.

The amendment, if enacted, will raise the current age of marriage for women from 18 to 21 years, to be on par with the age of marriage for men. Given the precarious position of women in our country, will this be practical and beneficial to women?

Issues with age of majority

The first and perhaps the most glaring issue with the Bill is how it defines a ‘child’ who can avail protections under the Prohibition of Child Marriage Act, 2006 (henceforth the PCM Act), the original legislation that the 2021 Bill seeks to amend. The Bill intends to include any male or female who has not completed the age of 21 years.

However, the same male or female has the right to vote, enter into valid contracts, and avail all other opportunities afforded to adult Indian citizens once they turn 18. Reading the Protection of Children from Sexual Offences (POCSO) Act, 2012 with Section 375 of the Indian Penal Code, we can conclude that both parties can also consent to sexual encounters at this age. In the landmark judgement Independent Thought Vs. Union of India and Another, the Supreme Court of India agreed that a child was someone below 18 years of age. Thereafter, they accepted this age as the legal age of marriage for women in the country.

Quote: The first and perhaps the most glaring issue with the Bill is how it defines a ‘child’ who can avail protections under the Prohibition of Child Marriage Act, 2006, the original legislation that the 2021 Bill seeks to amend. The Bill intends to include any male or female who has not completed the age of 21 years. However, the same male or female has the right to vote, enter into valid contracts, and avail all other opportunities afforded to adult Indian citizens once they turn 18. Reading the Protection of Children from Sexual Offences Act, 2012 with Section 375 of the Indian Penal Code, we can conclude that both parties can also consent to sexual encounters at this age.

Our courts are not the only institutions with such a view. Several countries have set the age of marriage for both men and women at 18. The Law Commission of India recommended bringing down the marriageable age for men to 18 years as early as 2008. The current central government was also considering this policy until two years ago. It is not known what prompted the government to change its stance. What is certain is that the new Bill will disempower women between the ages of 18 to 21 from exercising their right to marry.

Women in India already face several challenges in settling with the partner of their choice. Arranged marriages, dowry, economic backgrounds and community honour join forces to restrict their choices. Increasing the marriageable age to 21 years will limit their agency further. This move infantilises women and curtails their personal autonomy. This is particularly evident in the way families and parents already misuse the PCM Act in order to control their daughters.

Historical misuse of PCM Act

The original PCM Act was intended to reduce child marriages, specifically non-consensual child marriages. But it has a history of being used to attack marriages between consensual parties by presenting them as non-consensual child marriages before the court of law.

According to a study published last year by the Delhi-based NGO Partners for Law in Development, 65 percent of cases under the PCM Act were filed to punish elopements between two consenting older adolescents. These claims are often accompanied by provisions of kidnapping and rape under the Indian Penal Code as well as sexual assault under the POCSO Act. Interestingly, a majority of the remaining 35 percent of the cases were filed for dissolution of marriage via divorce or nullity by the adolescent party. However, none of the cases targeted the parents involved in arranging the child marriage, when they could have gone to prison for up to two years.

What prompts the youngsters to elope early? Research conducted over the past few years pinpoints domestic abuse, burdensome household duties, and fear of backlash when their parents learn of their romantic involvements as some of the reasons. The youngsters suffer economic adversity as they often end up with low-paid jobs with limited opportunities. Inter-faith and inter-caste couples in India also often elope to escape societal pressures.

With no support from their communities or families, these young couples find themselves further threatened by the prospect of honour killings or targeted harassment by endless litigation under the PCM Act. These are evils that remain unaddressed by the government. Instead, the government has promulgated isolatory measures like increasing the notice period under the Special Marriage Act, 1954 and, now, increasing the marriageable age for women to prevent child marriages.

Increasing ambit of illegality

The continued prevalence of child marriage has shown us that despite the legal age restriction of 18 years, women are often married off at ages below 18 because of lack of education, financial dependency, and sociological pressures. Therefore, even if their marriageable age is increased to 21, women will continue to marry before that age, forcibly or by choice. In West Bengal, the NFHS-4 has found that from 2015 to 2016 an average of 25.6 percent girls were married off between the ages of 15 to 19. If the 2021 Bill is passed, more marriages will be considered as illegal child marriages even if they are between consenting adults. More so, the State and judiciary will have the added burden of dealing with consensual marriages between adults instead of pooling resources to eradicate forced child marriages.

Question of health, education and legal protections

If marriages between 18 to 21 become manifestly illegal, women married this way will lose all legal and sociological protections afforded to married women. There will be a rise of unwed mothers between the ages of 18-21 years. Due to the stigma attached to pre-marital pregnancy, these mothers will be denied proper access to obstetrician-gynaecologist care as their visits will be scrutinised and policed.

The stated aim behind the amendment Bill is to delay marriage in order to improve the health of adolescent women and reduce maternal mortality rates. But studies claim that pre-marital pregnancies have the highest maternal mortality rates and so the very purpose of the PCM Act is likely to be vitiated by faulty implementation.

Quote: The continued prevalence of child marriage has shown us that despite the legal age restriction of 18 years, women are often married off at ages below 18 because of lack of education, financial dependency, and sociological pressures. Therefore, even if their marriageable age is increased to 21, women will continue to marry before that age, forcibly or by choice. If the 2021 Bill is passed, more marriages will be considered as illegal child marriages even if they are between consenting adults. More so, the State and judiciary will have the added burden of dealing with consensual marriages between adults instead of pooling resources to eradicate forced child marriages.

The rights of a married woman are noteworthy in such a case, wherein alimony and rights to shared residence are more easily afforded to married women without strenuous litigation if there is proof of marriage. If the proposed amendment is passed, women married between the ages of 18 and 21 will not enjoy the rights afforded to other married women, such as the right to maintenance from the husband under Section 125 of the Criminal Procedure Code. Moreover, all women between the ages of 18 and 21 who are forcibly married after the amendment will suffer from an application of the amendment for it will criminalize their marriage without any subsequent changes in their material circumstances.

In effect, the proposed amendment has divided adult Indian women into two categories for whom the chasm of choice, autonomy, and education widens everyday. Women in the first section are financially empowered and can marry at any age according to their wish. Coming from rich households, they can access several opportunities and some degree of financial independence. They reside in a metropolitan city like Kolkata, which at 6.1 percent has one of the lowest rates of child marriage amongst all districts in West Bengal.

Women in this section are educated in family planning and have access to education which increases their economic prospects. In fact, they are encouraged to plan for marriage and children at a later stage in life, when they are physically and mentally capable. They are often not dependent on familial approval and have all the tools and resources necessary to minimise the risk of maternal or infant mortality during childbirth. A change in marriageable age will not affect them as they are already capable of making decisions that benefit maternal health.

Women in the second section have little to no access to education, especially secondary education, as they belong to poorer households. They can be from the Murshidabad district of West Bengal, where the NFHS of 2015-16 recorded a child marriage rate of 39.9 percent (where the bride was below 18). These factors make women in this section statistically more likely to have a child marriage. But if they marry before 21, the marriage will not be legally recognised as per the proposed amendment. In these cases, the husband and his family will have no legal obligation towards the woman. In a deeply patriarchal society, the parents may not even take their socially married daughter back. With zero or little education and skills, women in the second section will be left destitute by both society and State.

Losing the plot

The impugned Bill can be traced back to a committee formed by the Ministry of Women and Child Development, Government of India under the leadership of Jaya Jaitly to examine the issue of marriageable age of women. The report made a host of recommendations, including but not limited to educating girls about sex and menstrual hygiene, providing them with safe transportation, sanitary napkins and hygienic toilets, and teaching them vocational skills to boost their educational prospects.

The committee’s recommendations provided a better framework for achieving the same objectives as that of the 2021 Bill. Providing women with greater maternal healthcare benefits, keeping them in school, teaching them about family planning, and providing opportunities of financial independence regardless of marriage was indeed a better way of ensuring their well-being instead of a direct increase in the legal age of marriage.

In a recent interview with The Hindu, Jaitly was also found saying that “Unless all of the recommendations go with it, there is no justification to raise the age of marriage. It is like making traffic rules without providing good roads or traffic lights.”

Her words ring true because social change has to be the driving force behind any law to stop child marriage; without it, the letter of the law will remain confined within itself, with no positive influence on the society.