The child marriage ‘debate’ in India must go beyond artificial binaries: Madhu Mehra

In an interview with TNM, Madhu Mehra of Partners for Law in Development spoke about the amendment to the Compulsory Registration of Marriages Act by the Rajasthan Assembly and the discourse around it.

Recently, the Rajasthan government was accused of encouraging child marriages by a section of journalists and citizens. The reason was an amendment to the Compulsory Registration of Marriages Act by the state Assembly; earlier, parents/guardians were responsible for registering the marriages of people below the age of 21. With the new amendment, parents/guardians are responsible for registering the marriages of grooms below the age of 21, and brides below the age of 18. Several people outraged over the amendment, claiming this is encouragement of child marriages by the government. Senior journalist Rajdeep Sardesai tweeted, “Sunday thought: child marrriages are illegal by law.. yet the Rajasthan govt now has passed a bill making it mandatory to register child marriages. Why would you de facto legalise an act which is illegal and regressive? Think about it!”

However, there are two points to be noted here. Firstly, by a Supreme Court order from 2006, all marriages including child marriages have to be registered, and this is not a new development. And secondly, the reason for ‘registering’ a child marriage, or any marriage, is to ensure the rights of the bride, the Supreme Court had explained. 

We spoke to Madhu Mehra, Head of Research and Training at Partners for Law in Development (PLD) about the amendment and the discourse around it, and why we need to do better on empowering girls first to stop child marriages. Excerpts from the interview:

The Rajasthan Marriage Registration amendment is seeing a lot of opposition, with many claiming this will encourage/legitimise child marriage. Is the registration of child marriages necessary?

I don't think the amendment is legitimising child marriages at all, because the Rajasthan Compulsory Registration Act, 2009  does not either bestow validity or invalidity of marriage. The registration signals that marriage has taken place, secures a status for the girl, without declaring the marriage to be valid or invalid. In fact, the law says non-registration does not invalidate a marriage. Likewise, registration of a marriage that is otherwise invalid under personal law, will not become valid. Neither does it alter the minor wife’s right to annul or repudiate the marriage within two years of attaining majority under the Prohibition of Child Marriage Act, 2006.

Registration of marriages is already low in rural areas, and it’s not likely that this amendment  will compel people to register underage marriages. Bureaucratic requirements are cumbersome, and moreover, registration of child marriage exposes those involved in child marriage to risk of prosecution. Just for that reason, I don't see anyone wanting to register underage marriages, arranged by the family or self-initiated, for fear of attracting prosecutions under the Prohibition of Child Marriage Act, 2006, and also under the Protection of Children from Sexual Offences Act, 2012.

Registration does offer advantage to the girl as it secures her matrimonial rights making it possible for her to claim these rights in a court of law, although this advantage is mostly notional as girls hardly have the capacity to access the legal system. Any measure to secure rights of girls – married or those vulnerable to early marriage, has to go beyond legislative measures and amendments. Child marriage is not entirely a legal issue to be addressed by law alone – so any meaningful conversation on child marriage has to go beyond the law.

How many children are forcibly married in India every year, by your estimate?

The National Family Health Survey provides prevalence rates of early marriage – which over the years has gradually declined. Most likely that the bulk of such marriages are parentally arranged or forced marriages. Yet, if you look at studies undertaken by Partners for Law in Development (PLD), and we have done three studies, which provide qualitative evidence on the subject, the most prosecuted underage marriages are the elopements. Although arranged marriages are still the norm in India, and many of these might involve parental coercion, they are scarcely being prosecuted in courts. In many of the elopement cases, the girls were fleeing a forced marriage, preferring a known partner over an unknown man. This gives some indication of how widespread forced marriages are – triggering in some cases, elopements. 

Yet, arranged marriages or forced ones are scarcely visible in case law. As PLD’s study shows, the law is most accessible to parents and least accessible to girls.  Elopements account for 65% of all the caseload under the law, in the 10 years that we looked at, while the phenomenon of parentally forced marriage is not visible in case law. It’s not possible to know how many within the category of child and early marriages are forced, although it is possible to say from case law analysis, that the cases that enter the legal system are initiated by parents of girls who have married of their choice, without parental consent.

This to some extent is inevitable as the law is shaped by the context within which it operates, and the power relations that define access to the legal system. People do not enjoy equal access to the legal system, some have greater access, some have less or no access. Minor girls have the least.

Is there confusion over the legal age for marriage in India? 

The age of two entirely different kinds of actions have unfortunately been conflated in the law in India. The age of sexual consent was increased from 16 to 18 years in 2012 with the enactment of Protection of Children from Sexual Offences (POCSO) Act.  The minimum age of marriage for girls is 18 years, which is the age of majority or adulthood. This has devastating consequences for young people, let me explain how.

By increasing the age of sexual consent, POCSO denies adolescents the capacity to legally consent to any kind of sexual expression, from fondling to intercourse. That is unscientific and unrealistic, because puberty occurs at 11-12 years, after which sexual awakening occurs in the human body. Young adolescents are naturally sexually curious, may explore sexuality in varying degrees, and by the older adolescence stage, many are sexually active to some degree across societies. 

Although science tells us that adolescence signals emotional, physiological, psychological and sexual development, the law denies young people legal capacity to consent at this stage of their lives, exposing them to confusion, stigma, shame, and criminalisation. This is harmful and not protective for the young people. We are seeing the law enforcement and the courts grapple with having to criminalise adolescents in consensual relations, when such time could be spent on addressing abuse cases. The  age of consent needs to  be lower than the age of marriage. Adolescents must have the legal capacity to consent to non-coercive sexual relations between peers, or those who are close in age – so they begin accessing information about safety, bodily integrity, distinction between coercion - pleasure, and put into practice consent at the earliest stages of sexual development.  

The minimum age of marriage for girls as 18 is alright as it correlates to adulthood. This does not imply that 18 is an ideal age for girls to marry, so a minimum age must not be understood to be ideal age. It merely signals the age at which one can marry legally without attracting prosecution. Increasing the minimum age of marriage will disempower young women, who will lose the legal right to choose a partner, and be subjected to extended parental controls by virtue of the law.   

The problem with the law as it stands now is that ages for different sets of actions are being harmonised. Uniformity of age for sex and marriage is flawed and unscientific. Minimum ages of different activities is mandated by the principle of evolving capacities enshrined in the Convention on the Rights of the Child. As the capacities of children evolve over time, through developmental stages, so should the nature of their rights, their best interests and protections offered in law. Hence, you ought not to treat a 17-year-old on par with a seven-year-old.

I was referring to the Indian Penal Code section on rape, that mentions ‘wives below the age of 15’...  (A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman...(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.)

So, in the Independent Thought judgment, which was decided in 2017… the petitioners challenged the fact that while under POCSO (Protection of Children from Sexual Offences Act) there is no sexual consent until 18 years, but within a marriage, sexual consent is assumed for 16 to 18 years by virtue of the exception to marital rape in the IPC. The court sort of went along with it, and now that exception to marital rape is amended to apply to wives who are 18 and above.

The implications of this are very dangerous for underage couples who have eloped – and indeed, they are being prosecuted by parents of the girl for kidnapping and rape. The law gets weaponised against them, and criminalisation for such grave offences is debilitating for life. 

Unfortunately and erroneously, the debate in India is trapped within unhelpful binaries of valid marriage or invalid marriage; valid sex or invalid sex – all determined by a singular indicator of age. Such a debate is not helpful or reflective of the realities or jurisprudence that has evolved in many parts of the world. Elements of consent, coercion and age differentials must be factored in to calibrate the age of consent in law. The young person must have a voice in matters affecting her life, rather than being silenced by denial of consent.  

Age cannot be the primary indicator in determining protection or offence. The law must recognise the need to hear the girl, look for coercion and age differentials between the parties before arriving at a conclusion. To ascertain consent of those under 18 years, the law must certainly ask more questions, to decriminalise and permit non-coercive expression of consent.

Finally, and most importantly, law cannot be the main intervention to address child marriage. There must be provision of education, special livelihood trainings, safety, empowerment programmes and other opportunities for girls that offer viable social and economic options outside of marriage. The issue cannot be resolved through debates on making marriages void through punitive laws. 

What’s the most important thing governments need to do to stop child marriages? 

Let me reiterate that the law is necessary, but cannot be the primary means to fight child marriage. We need to improve the quality of state run schools, in terms of education and its amenities. The Right to Education Act itself must extend beyond 14 years as it does now, to 18 years so as to guarantee completion of senior secondary schooling to children from economically deprived populations. 

Today, in India, women's participation in the workforce is very low, one of the lowest in the world. So, beyond education, the state must invest in livelihood trainings for girls, affirmative action in employment to ensure that they are able to achieve financial security without compulsorily turning to marriage.

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