Throughout the world, marriage is regarded as a moment of celebration and a milestone in adult life. Sadly the practice of early marriage gives no such cause for celebration. All too often, the imposition of a marriage partner upon a child means that a girl or boy's childhood is cut short and their fundamental rights are compromised. While much of the impact is hidden, it is absolutely clear that millions of children and young people—especially girls—suffer negative consequences.
Law Commission Recommendations
Recently, the Law Commission has recommended changes in laws to prohibit marriage of children below 18. It suggested that 18 should be made the age for marriage—uniformly, across gender, community and religion. It stated that marriages involving a girl or boy below 16 should be illegal. Marriages involving parties between 16 and 18 years should be voidable with an option for the minor to repudiate the marriage after he/she turns 20.
At present, under the Hindu Marriage Act (HMA), the marriageable age for a girl is 18, for a boy, it is 21. If the Centre accepts the recommendations and the laws are amended—it will be for the first time in the history of India—a marriage involving a bridge or groom below 16 will be illegal.
The present laws—the HMA and the Prohibition of Child Marriage Act, 2006 (PCMA)—do not have such provisions. Violation of the condition of age under HMA does not make the marriage void. However, taking note of the possible difficulties faced by girls, the Commission recommended that they—would be entitled to maintenance under PCMA till her marriage. Similarly, provisions relating to maintenance, child custody and legistimacy would be applicable to voidable marriages as they are at present.
In tune with a recent Supreme Court order, the Commission also suggested mandatory registration of marriages within a stipulated period for all communities—Hindus, Muslims, Christians and others. The marriage age for both boys and girls should be 18 years as there is no scientific reason why this should be difficult, the Commission stated.
In fact, the issue of child marriage hit headlines after the High Courts of Delhi and Andhra Pradesh upheld their validity in cases where minor girls had eloped with their lovers. They were facing kidnapping and rape charges after criminal cases were filed by the girls’ parents. This led to a big controvery and the National Commission for Women and Delhi Commission for Women filed petition, before the Supreme Court highlighting the contradiction in the definition of child under various laws.
Who is a Child?
Different Indian laws have varying versions on when a child turns adult. Some laws state that the age of attaining adulthood is 14, while for others, it ranges between 16 and 18.
The Indian Penal Code (IPC) is confusing as Section 361 gives different definitions. A boy less than 16 is defined as a child and a girl less than 18 is considered a child. There is no gender parity in IPC for children.
Again, according to the Immoral Trafficking Act, the defining age for children is 18 or less.
The inherent contradiction in the IPC does not end here. While sex with a girl who is 16 or younger is considered rape, in the case of a married woman, the offence can be registered only if she is less than 15. This is contradictory to the provisions of the Child Marriage Prohibition Act, which states that the legal age of marriage is 18.
The Child Labour Prohibition Act has an altogether different definition. Only those below 14 are considered children. Children between 14 and 18 are allowed to work in hazardous industries.
According to the United Nations Convention on the Rights of Child anyone below 18 is a child. As India is signatory to the Convention, all laws need to be amended here.
Impact on Children and Society
Young girls may endure misery as a result of early marriage and the number of those who would seek help, if they thought it existed. Until more is known about their situation there can be no reliable estimates of the scale of their predicament, or of the social damage that is carried forward in the upbringing they give to their own children.
One thing is clear that the impact of early marriage on girls and to a lesser extent on boys—is wide-ranging. Within a rights perspective, three key concerns are the denial of childhood and adolescence, the certainty of personal freedom and the lack of opportunity to develop a full sense of self-hood as well as the denial of psychosocial and emotional well-being, reproductive health and educational opportunity.
Early marriage also has implications for the well-being of families, and for society as a whole where girls are uneducated and ill-prepared for their roles as mothers and contributors to society, there are costs to be borne at every level, from the individual household to the nation as a whole.
Law Commission Recommendations
Recently, the Law Commission has recommended changes in laws to prohibit marriage of children below 18. It suggested that 18 should be made the age for marriage—uniformly, across gender, community and religion. It stated that marriages involving a girl or boy below 16 should be illegal. Marriages involving parties between 16 and 18 years should be voidable with an option for the minor to repudiate the marriage after he/she turns 20.
At present, under the Hindu Marriage Act (HMA), the marriageable age for a girl is 18, for a boy, it is 21. If the Centre accepts the recommendations and the laws are amended—it will be for the first time in the history of India—a marriage involving a bridge or groom below 16 will be illegal.
The present laws—the HMA and the Prohibition of Child Marriage Act, 2006 (PCMA)—do not have such provisions. Violation of the condition of age under HMA does not make the marriage void. However, taking note of the possible difficulties faced by girls, the Commission recommended that they—would be entitled to maintenance under PCMA till her marriage. Similarly, provisions relating to maintenance, child custody and legistimacy would be applicable to voidable marriages as they are at present.
In tune with a recent Supreme Court order, the Commission also suggested mandatory registration of marriages within a stipulated period for all communities—Hindus, Muslims, Christians and others. The marriage age for both boys and girls should be 18 years as there is no scientific reason why this should be difficult, the Commission stated.
In fact, the issue of child marriage hit headlines after the High Courts of Delhi and Andhra Pradesh upheld their validity in cases where minor girls had eloped with their lovers. They were facing kidnapping and rape charges after criminal cases were filed by the girls’ parents. This led to a big controvery and the National Commission for Women and Delhi Commission for Women filed petition, before the Supreme Court highlighting the contradiction in the definition of child under various laws.
Who is a Child?
Different Indian laws have varying versions on when a child turns adult. Some laws state that the age of attaining adulthood is 14, while for others, it ranges between 16 and 18.
The Indian Penal Code (IPC) is confusing as Section 361 gives different definitions. A boy less than 16 is defined as a child and a girl less than 18 is considered a child. There is no gender parity in IPC for children.
Again, according to the Immoral Trafficking Act, the defining age for children is 18 or less.
The inherent contradiction in the IPC does not end here. While sex with a girl who is 16 or younger is considered rape, in the case of a married woman, the offence can be registered only if she is less than 15. This is contradictory to the provisions of the Child Marriage Prohibition Act, which states that the legal age of marriage is 18.
The Child Labour Prohibition Act has an altogether different definition. Only those below 14 are considered children. Children between 14 and 18 are allowed to work in hazardous industries.
According to the United Nations Convention on the Rights of Child anyone below 18 is a child. As India is signatory to the Convention, all laws need to be amended here.
Impact on Children and Society
Young girls may endure misery as a result of early marriage and the number of those who would seek help, if they thought it existed. Until more is known about their situation there can be no reliable estimates of the scale of their predicament, or of the social damage that is carried forward in the upbringing they give to their own children.
One thing is clear that the impact of early marriage on girls and to a lesser extent on boys—is wide-ranging. Within a rights perspective, three key concerns are the denial of childhood and adolescence, the certainty of personal freedom and the lack of opportunity to develop a full sense of self-hood as well as the denial of psychosocial and emotional well-being, reproductive health and educational opportunity.
Early marriage also has implications for the well-being of families, and for society as a whole where girls are uneducated and ill-prepared for their roles as mothers and contributors to society, there are costs to be borne at every level, from the individual household to the nation as a whole.
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