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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