Tag Archive for Child Marriage

Women: Married to Personal Laws?

Girls India

In India, caste and religion seem to be the considering factors for deciding the marriageable age of a woman, rather than her constitutional right to self-determination

By Indira Jaising

The Delhi High Court ruling upholding the marriage of the 15-year-old Muslim girl, exposes the fault lines in the Indian Constitution. As usual, these cracks emerge where women reside. Why are women bereft of fundamental rights, why must “personal laws” and not the right to be human determine the public space which we inhabit?

The Delhi HC is not the only example of religious considerations influencing court judgements. Take this recent example of divided and contradictory policies on marriage from Rajasthan. The newly enacted Compulsory Registration of Marriages Act- 2009, requires the consent of the parents to register a marriage, if the girl is below 21 years of age. This means that though a girl may marry without parental consent after 18, she will not be able to register the marriage (make it legal) till she reaches the age of 21. The object here is to prevent inter-caste marriages and give parents an opportunity to oppose the marriage when a girl marries outside of caste.

The Rajasthan High Court also gave a judgement that Arya Samaj marriages cannot take place without parental consent. The Arya Samaj, a movement which came into existence in opposition to caste hierarchies, is now compelled to give way to caste based objections to marriage.

Perhaps what we need is a universally applicable law, regardless of religion, which makes all marriages below 16 void; make those marriages between 16 and 18 voidable; and rape within marriage outlawed. We also need to alter our laws relating to “kidnapping from lawful guardianship” which enable parents to file complaints of kidnapping when a daughter marries outside the caste, while they do not object to getting 15-year-olds married within caste.

Would the Delhi case ruling have been different if this had been a Hindu girl? She would have had the protection of a law which fixes the age of lawful marriage at 18, and not puberty. But that is only half the battle won. A marriage below the age of 18, even for a Hindu girl, is not void, just nearly voidable, putting the onus of avoiding the marriage on her.

Deciding ‘marriageable age’ is normally done on the basis of the right to health, to avoid early pregnancies, to ensure a degree of maturity at the age of marriage and the ability to protect oneself against exploitation and rape within marriage (which is however still not an offence)

Last month, India, in its attempt to tackle child sexual abuse, proposed to raise the age of consent for sex from 16 years to 18. Considering this, one wonders whether it makes any sense to permit marriages at 15, when the consent to sexual relations is raised to 18? The ability to feel sexually engaged is not dependent on laws fixing the age of consent. It is by and large recognised that a girl is capable of giving consent to sexual relations at the age of 16. Raising it to 18, however, will only enable more parents to bring charges of rape when they disapprove of the person with whom sex has taken place, making it a matter of “honour” for the family.

We need to look at age of marriage, age of consent, rape within marriage and kidnapping in an outer connected manner, recognising the dynamics of societal pressures but always in the context of the right to live a life of dignity and recognising the agency of the woman. In the Delhi HC case, marriage at 15, with the possible consequence of pregnancy, affects a girl child’s right to education, health and well being. It is these considerations rather than religious codes that must prevail when looking at the age of marriage.

Indira Jaising is the Additional Solicitor General of India and the Executive Director of Lawyers Collective.

Featured photo by Ramlath Kavil

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Women’s Rights: Divided they Stand

UN women's rights

India stood amongst the conservative governments in opposition to the progressive governments in the debates on women and girls’ human rights issues during the 56th session of the UN Commission on the Status of Women which ended without any agreed conclusions in March 2012

By Team FI

The 56th session of the UN Commission on the Status of Women (CSW) held this year at the United Nations Headquarters, New York was one of the most controversial and divided sessions in the history of the commission. The session began on 27 February and continued to 9 March 2012.

The following is an analysis of the session by the Women for Women’s Human Rights (WWHR).

The 56th session of the UN Commission on the Status of Women witnessed ferocious debates on several issues related to women’s and girls’ human rights. The debates between the conservative and progressive delegations were so polarized, that at the end, for the first time in CSW’s history, the governments could not reach an agreement. Thus, there was no “Agreed Conclusions” at the end of the two-week meeting.

Egypt had a major impact on this final situation, as the Egyptian delegate continuously underlined that he was speaking on behalf of the African group – 27 countries. Caribbean Communtiy (CARICOM) had also a very blocking effect, although it did not express a clear position on many of the issues. Jamaica, speaking on behalf of CARICOM, very often took the floor to intervene on behalf of the conservative block.

Moreover, the delegates could not reach an agreement on the “Women, the Girl Child and HIV/AIDS” resolution either. Consequently, there was only a “Procedural Resolution” on “Women, the Girl Child and HIV/AIDS” .

Most Contentious Issues

Opposition of conservative governments to the term “Harmful Traditional Practices”

“Harmful traditional practices,” is a major source of women’s human rights violations and since the Beijing Platform for Action, is mentioned as a women’s human rights violation in many UN negotiated documents. The term had come under attack by some conservative governments at the 2010 CSW meeting. The 2011 CSW witnessed a much stronger and coordinated effort by conservatives to have the term deleted from all new documents, signaling a significant backlash.

Countries that wanted to have the word “traditional” deleted, and instead revise the term as “harmful practices” were the Russian Federation, Syria, Egypt, India and Chile. Those who strongly supported the retention of the term in various resolutions and the conclusions were Turkey, Mexico, Uruguay, EU, Switzerland, South Africa and Israel.

Unfortunately, in the 2011 “Maternal Mortality Resolution,” harmful traditional practices has come to be narrowed down to Female Genital Mutilation, which is detrimental not only because it negates many other traditional harmful practices defined in other UN negotiated documents such honor crimes, early and forced marriages, dowry related deaths among others, but also such a limitation can imply a stigmatization of African cultures.

“Early and forced marriages” vs. “Child marriages”

There was a coordinated effort by Iran, the Holy See (Vatican), Russian Federation and India to delete any references to “early marriages,”. They have instead proposed the term “child marriages.”

The recognition of “early and forced marriages as a harmful traditional practice” has been there since Beijing+5. The term “child marriage” is very confusing, as the definition of the “child” varies a lot based on geography and culture. For instance, states within the US define “child” differently. According to the culture of many Muslim countries, a girl child is one who has not yet had menstruation.  Thus, in many Muslim countries, “child marriage” can be interpreted as the marriage of a girl who has not yet reached puberty. The countries that strongly voiced their support for the retention of the term “early marriages” were Turkey, Switzerland, Australia, the US and the EU.

“Reproductive rights and sexual health” as human rights

Until the very end opposed by the Holy See, supported by Norway, US, Australia, Japan,  Ireland, Uruguay, Australia, Turkey and Switzerland.

“The central role of the family in reducing the vulnerability to HIV”   

SADC wanted to insert the term “reaffirming the central role of the family in reducing the vulnerability to HIV,” as a main issue in the preambular paragraphs. This was opposed by many countries such as Australia, Canada, US, Uruguay and Costa Rica, which demanded evidence for it – which could not be provided by SADC – and most importantly, because such an assertion would imply that the family should be responsible for the care and support of people living with HIV/AIDS, which is very detrimental for women, as women are the main unpaid caregivers in many countries.

“Negotiating safer sex”

Firmly opposed by the Holy See and the Russian Federation.  The Holy proposed “responsible sexual behavior” instead.  Supported by the EU and Canada.

The reaffirmation of the 2011 UN Declaration on HIV/AIDS

Although Iran was the only country that opposed the reaffirmation of the 2011 UN Declaration on HIV/AIDS – accepted by the UN General Assembly – this insistent opposition provided a major obstacle to reaching a consensus on the HIV/AIDS resolution. Strong statements supporting the declaration were made by Australia, the EU, Turkey, the US and SADC.

PETITION

Asia Pacific Forum on Women Law and Development (APWLD), a network of feminist organisations and women with 180 members representing groups of diverse women from 25 countries in the Asia-Pacific region, initiated a petition campaign –  “Say NO to safeguarding “traditional values” over women’s human rights!” The campaign which ended on 5th April 2012 has got over signatures from over 5400 organisation and individuals from all over the world.  The petition is to be sent to the governments who participated in the session and to the United Nations.