Child Marriage: Laws Can Only Penalise, Not Bring Social Change

Why is it that the NCRB records such a low rate of PCMA cases even when they know there are mass child marriages?

(This article was first published on 18 December 2021. It has been republished in light of The Prohibition of Child Marriage (Amendment) Bill, 2021 being introduced in the Lok Sabha on 21 December.)

The Union Cabinet passed the proposal to increase the age of marriage to 21 based on recommendations made by the task force headed by Jaya Jaitly. The belated recognition of a gender-neutral age of marriage and the stress on empowerment of women are welcome.

However, will raising the age of marriage lead to women being empowered, increase their agency, and enable them to control their own fertility?

I would like to begin with my own experience and the journey I have made. Since I am the second generation of girls to have escaped child marriage (both my grandmothers, paternal and maternal, were child brides and teenage mothers) and have grown up with stories of child widows in my own family, child marriage was a social evil that I grew up understanding.

My first instinct, even as I became a child rights activist, was to ban child marriage or declare it automatically illegal.

However, as I began working directly on the issue in three states – Telangana, West Bengal, and Rajasthan – interacted with adolescent girls who were married or engaged or struggling not to be married, my world view on the subject slowly began to undergo a shift.

So today, if I strongly believe that the solution to child marriage and empowerment of girls does not lie in raising the age of marriage, it is based on my own learnings since 2006.

Laws Haven't Been Able To End Forced or Arranged Child Marriages

Data, including the latest National Family Health Survery-5 (NFHS-5), shows that the proportion of girls marrying below 18 years of age has been steadily declining and there are indications that it may continue to fall.

Of course, there do remain instances of very young children who are forced into marriage and need to be protected. Using the existing Prohibition of Child Marriage Act, 2006 (PCMA) should suffice.

Why is it that the National Crime Records Bureau (NCRB) records such a low rate of PCMA cases or that magistrates seldom make injunction orders, even when they know there are mass child marriages, often in the presence of political and community leaders?

The answer here doesn’t lie in the age of marriage in the law, but in social attitude and norm.

While the PCMA has served its purpose by creating greater awareness and has given girls the courage to negotiate with the families to stop or delay marriages, evidence and experience both show that legal prosecutions under the law are predominantly by parents seeking to punish the eloping daughters and their spouses for marrying against their wishes.

What is more, this awareness among girls is not matched with other indicators such as high retainment in schools, a safe and violence-free environment, health services, and better opportunities for the future.

Further, because marriage remains central to a woman’s social and economic status, families are pressurised into marrying off girls, and the girls themselves feel it imperative to get married.

So, what we see are arranged as well as forced marriages of adolescent girls to avoid higher dowry or what is perceived as a way to ‘protect’ girls.

What and Why of Child Marriages

There is a growing evidence that early marriage is the consequence of older girls dropping out of school. It is the failures and shortcomings of our education system that are prompting our youth – both boys and girls – to drop out.

Nor does early marriage cause high fertility; in fact, fertility rates have been dropping to below replacement levels in most Indian states, including those with relatively high prevalence of early marriage.

Underage marriages are not prevalent in the upper socio-economic groups. Not even the religious functionaries that solemnise the marriage, marry off their own children.

Today, unlike the times of my grandmother or my mother who escaped it because she was studying, child marriage is very much a phenomenon of the resource-poor and vulnerable sections, often worsened by other situations and emergencies, such as the COVID-19 pandemic presently.

Marriage of underage girls is also used as a legal means for trafficking them as brides to low sex ratio regions, or for other forms of exploitation.

There are different kinds of child marriages we are dealing with: those in which children are forced into marriage by their families, and those who choose marriage on their own. Often the latter see marriage as an ‘escape’ from housework, domestic abuse, and their current life of deprivation and lack of opportunities, or the only way to have a relationship with their boyfriends.

In the first case it’s the families who are the offenders, but in the second, the protagonists of the marriage themselves, most often the males, are treated as the offenders.

This is because the Protection of Children from Sexual Offences (POCSO) Act, 2012 sets the legal age of sexual consent at 18 years, criminalising all adolescent sexuality, including non-coercive relations between consenting peers.

For those not aware of the provisions of the PCMA, child marriage if solemnised, is not void. Its voidable by the parties involved on attaining majority. However, boys and young men in the relationship are subject to criminal prosecution, even if married, since a Supreme Court Judgment in 2018 extended provisions under the child sexual abuse law to child marriage.

The POCSO Act also requires mandatory reporting with penal provisions attached, which further complicates the situation. This applies to healthcare providers and counsellors as well. This not only breaches confidentiality that minor girls need, it also obstructs access to services such as safe abortion or sexual and reproductive health services.

What happens when this age now is raised to 21? Criminalisation of many more young people and even further obstruction in access to services.

Solution? Certainly Not More Laws

Gender discrimination within families and in society, spousal violence, ownership of property, equal wages – all remain challenges that women face. Marriage of underage girls is also used as a legal means for trafficking them as brides to low sex ratio regions, or for other forms of exploitation.

How will raising the age change this reality?

Penal or stringent laws only serve to penalise, they do not lead to social change. In this case the law does not address underlying structural issues that push girls into underage marriage.

In fact, given the socio-economic groups where it exists, this will become yet another measure to penalise the already disempowered.

Poverty – not early marriage – is the main cause of the ill-health of mothers and their newborns. Raising the age at marriage through law will only criminalise, not prevent, early marriage.

It will also make access to safe abortion and institutional deliveries even harder as couples and families living in deprivation seek to evade scrutiny of criminal law.

Raising the age to 21 will deny young people the right to personal decisions and will expose couples to extended punitive prosecutions by parents, something we already see happening.

Need of the Hour: A Focused Approach

So what do we need?

Law is necessary. But for it to be helpful to the communities concerned, it must be enabling, rather than punitive. In any case, the law cannot be primary means to addressing underage marriages.

What is needed is a 360-degree approach focused on creating an enabling environment which is safe and empowering. We need to recognise and decriminalise non-coercive consensual adolescent sexuality between peers and focus on engaging with them on responsible sexual behaviour.

A differentiated legal response, that the current law offers to different trends in underage marriage, and giving the option of repudiating marriage, must be retained.

A national network of adolescents from rural and peri-urban contexts, the Young Voices Network (which submitted a memorandum to the task force), tells us that delaying marriage is not enough; the focus must shift to empowering girls from disadvantaged rural contexts through adequate resourcing and opportunities.

They want to be free from the compulsion of marrying for social and economic survival. They demand quality education, employment, safety, mobility, and the freedom to choose if, when, and who to marry. Then automatically, the age of marriage will go up, they tell us. Evidence for across the world shows just that. But really, who is listening? Clearly not the government.

Of course one can well also ask: if one can be ready to vote at 18 years, sign a contract, or start to work to earn a living or be treated as an adult in an an offence, is it not strange to see their inability to decide on who to marry?

(Enakshi Ganguly is a human rights activist. She tweets @enakshihaq. This is a personal blog and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)