With the government setting up a task force, ‘age at marriage’ for girls and women has once again become a matter of national concern. Age at marriage has been a matter of debate in India for over 140 years now. One of the earliest cases was of Rukhmabai in Mumbai in 1884. Rukhma had been married to Dadaji Bhikaji when she was 11 years old in 1876. She continued to live with her step-father and mother till she turned 19, when she refused to go and live with her husband, leading to this now-famous case in 1884.
Hearing the case, Justice Robert Hill Phinney could not find precedent in India and found it difficult to use British law of consent as well. His opinion that Rukhma was a child when she was married and thus could not have consented, did not go down too well with the more ‘conservative’ Indian society and the case was reopened and Phinney’s judgment reversed.
However, Rukhmabai was not one to give up easily. She wrote a letter to the editor of The Times under the guise of a ‘Hindoo Lady’ and petitioned the Queen. Finally, it required Queen Victoria to intervene and annul the marriage. This case is considered one of the touchstones of defining Indian nationalism within religious and cultural boundaries. Rukhmabai left the controversy behind her and went on to train as a doctor in London; after returning she practiced for many years in Gujarat.
The subject of many legal controversies
‘Age at marriage’ has been the subject of many legal controversies in India since the Age of Consent Act was passed in 1891. This law raised the age to consent for sex from 10 to 12 years without directly addressing the age at marriage. This was addressed through the Child Marriage Restraint Act of 1929, popularly known as the Sarda Act, which fixed the minimum age of marriage for girls to 14 years and boys to 18 years. The age limits were subsequently revised to 18 and 21 and the law itself was changed to the Prohibition of Child Marriage Act in 2006 keeping the same age limits.
The proposition that is now on the table from the current government is to raise the age of women entering marriage to 21 years. The prime minister has mentioned this among his priorities for the year during his Independence Day address to the nation from the ramparts of the Red Fort.
Around the same time that Rai Har Bilas Sarda was introducing the Bill for the later eponymous law in 1927, both my maternal and paternal grandmothers were married. They were both graduates from Bethune College in Kolkata and were well over 21 years of age when they were married. Clearly the social opposition by the Indian cultural elite to regulatory interference around the age at marriage was no longer so strong.
Of the 1,209 witnesses examined by the Age at Consent Committee set up for the purposes of the law in 1928-29, as many as 761 were in favour of raising the age at consent. Even though the mean age at marriage among the upper caste Maharashtrians was around 15 years at that time, according to some researchers, it had become culturally appropriate, at least in some social circles, for girls to be educated in college and for them to be married only when their education was complete and they were considered ‘full’ adults.
The main arguments
The main arguments in favour of deferring the age of marriage beyond the existing 18 years for girls are around gender equality and around health and demographic benefits. The gender equality aspect can be dealt with by reducing the age of marriage for boys as well but that doesn’t appear to be a progressive measure. The health benefit is said to accrue as girls who have teenage pregnancies are at higher risk compared to those who are over 20 but the risks are higher at age 15 or 16 and the difference in risk between say age 19 and 22 years is at the most marginal.
The more compelling argument then appears to be the demographic benefit deriving from the maxim ‘delaying marriage leads to delaying age of childbirth and the reducing number of pregnancies’. This maxim may have been true at some point in time but does not appear to reflect sound judgement in today’s India. The fertility rates have already declined considerably and in the more ‘progressive’ states it is already below the replacement level.
During the last round of the National Family Health Survey (NFHS) conducted during 2015-16, about a quarter of all married women in the age-group of 20-24 years had been married before 18 years of age. This was a considerable improvement from the situation ten years ago, when nearly half of all married women of the same age group were married before 18 years during the time of the previous round of the NFHS. Clearly, there is a steady increase in the age at marriage of girls and in most marriages across the country today, the bride is over 18 years of age. A vast majority of women in India have not only had sex but many also had their first babies by the time they are 21. What benefit then would be achieved by legally deferring the age at marriage of women?
Sexual consent and social outrage are intricately linked. The leaders of society were outraged when the British rulers proposed raising the age of consent 140 years ago and a similar outrage exists even today. In many regions, sexual relations between consenting adults, when they are outside the same caste or religious groups, or if it is outside marriage can provoke murder to ‘save the family honour’.
In India, sexual initiation – especially for girls – is socially expected to be co-terminus with marriage. A vast majority of women experience their first sexual relationship after marriage. It is somewhat similar but not the same for boys. According to the National Behavioural Surveillance Survey (BSS 2006) 50% of both male and female youth in the age group 18-25 years already had sex before 18 years. While for women it was almost exclusively within marriage, in the case of up to 25% of male youth in some states, it was with non-regular sexual partners. This is an important consideration in the light of the social expectation that sexual relations should take place within marriage, and now for women, it is proposed to be only after 21 years.
The age of sexual consent for women and girls is a matter of great social concern but the women and girls themselves are rarely given a chance to contribute to the discussion. During Rukhmabai’s time, girls were expected to consent to sex at 12 years of age; during the time of my grandmothers’ marriage it was raised to 14 years; now our political leaders want young women to have sex only after they are 21 years old. Neither in 1891 nor in 1929 or even now, the girl or woman concerned is the person who is expected to give the consent. The parent’s consent is considered enough, and millions of girls every year consent to their marriage without having their heart in it. Rukhmabai was a woman of rare courage when she not only refused to go to her husband Dadaji’s home but also wrote a letter to the editor of the leading newspaper of the day. Women who show such courage are not welcome even today.
A worrisome provision
The proposed law is expected to include a new provision that is worrisome. The law against child marriage in India has rarely been strictly enforced because the parties, meaning the parents of the groom and bride who propose this marriage, are doing so out of their own will. Marriages where the bride or groom are under the ‘legal’ age are blessed by the leaders of society. The ‘catch’ lies in the fact that these so-called illegal marriages are not ‘infructuous’ and exist as ‘legal’ union between the girl/woman and boy/man concerned unless challenged by them.
The new proposal is that marriages before the legal age will now be considered ‘void’. Thus, women and girls will be exposed to sex within a marriage, which is socially acceptable but legally void, and will have no rights to reparation, social protection or any other benefit because the marriage is considered to not have taken place. In a country where women’s sexuality is closely guarded as a matter of family and community honour, this is a very risky proposition for women.
Prime Minister Narendra Modi has repeatedly emphasised the fact that youth are the main resource in India. The proposed change in marriage law will be doing a great disservice to the development of healthy sexuality among youth in India. Already the newly enacted Protection of Children from Sexual Offences Act (POCSO 2012) makes sexual experimentation among youth a legally risky situation.
It criminalises youth exploring their sexuality with charges of ‘statutory’ rape and child sex abuse even if in the case of consenting minors. With a change in the legal age of marriage to 21 years for women, women between the ages of 18 and 21 will be expected to remain sexually ‘pure’ till then. Women will be compelled to abjure sexual relationship till their marriage, and those who decide not to, will have the threat of dishonour, and their male sexual partner the threat of rape. The new proposition does not appear to be youth-friendly in its intent at all.
The proposed law is not a sound policy option and instead can open a new set of complications in society. It is not the best option for gender equality, women’s health, children’s well-being or for population growth.
Abhijit Das is managing trustee, Centre for Health and Social Justice, India and clinical associate professor, Department of Global Health, University of Washington, Seattle, US.