On leafing through Indian Family Law readings in law school, one can’t help but feel disgruntled with the ubiquity of sexism making its way into legislative enactments. The difference in the minimum marriage age for men and women in India is a testimony to that fact. Currently, several personal laws prescribe ages 18 and 21 as the minimum marriage age for women and men respectively in India. The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 (PCMA) prescribe the same. This difference in the minimum marriage age is believed to have arisen and persisted due to various patriarchal stereotypes and sexism. One such stereotype is the notion that women tend to mature at a younger age than men and hence, could be allowed to marry sooner.

While a uniform law applicable to all genders is welcomed, debate persists. For the most part, the perspectives have been limited to either increasing the marriage age for women to 21 or modifying the marriage age for men to bring it down to 18. Oxfam India, a leading NGO, ardently opposes this proposed increase in the marriage age for Indian women. Consequently, Oxfam started the #EmpowermentNotAge campaign in November 2020 to spread awareness regarding the repercussions if this law were to be passed. In addition, about a month ago, the Young Voices National Working Group started a petition to not go forward with the proposed law.

It is imperative to mention that a significant proportion of the debate surrounds the possible misconception about the meaning of minimum marriage age. Ascertaining a minimum legal age for marriage doesn’t mean that it is the ideal age when everyone should essentially get married. What it aims to achieve, rather, is to safeguard the rights of those who are under that prescribed age. This blog attempts to narrate how prescribing 18 as the minimum marriage age for all genders would be preferable to ameliorate the discriminatory laws. Furthermore, the socio-economic repercussions of increasing the minimum marriage age to 21 are highlighted to reveal that it would do more harm than good towards empowering women in India.

Contemporary Legal Developments

The Law Commission of India in its consultation paper opined that the unequal age prescribed for marriage has no basis and it “contributes to the stereotype that wives must be younger than their husbands.” In an attempt to change the status quo, a plea was filed in the Supreme Court of India to collectively hear matters that were already pending before the High Courts of Delhi and Rajasthan. The litigants in these petitions highlighted that the current laws violate the Indian Constitution which provides for equality before law and non-discrimination on the grounds of sex.

In July 2020, a task force was established by the Union Ministry of Women and Child Development to re-examine the marriage age of females. The Union Government further hinted at a possible increase in the minimum marriage age for women to 21. This triggered the already ongoing debate on ascertaining the minimum legal age to marry for individuals.

Increase in Minimum Marriage Age: Another Law with No Tangible Outcome?

The push for amending the law is believed to decrease the Maternal Mortality Ratio (MMR) and teen pregnancies. Increasing the legal marriage age to 21 is further anticipated to render nutritional benefits to mothers and infants which would consequently put an end to the “intergenerational cycle of poverty and undernutrition.” However, amending laws to delay the age of marriage is considered to be the weakest factor to break this cycle. The most effective course of action, hence, would be to address the deplorable state of poverty of mothers and improve medical facilities.

Some opine that increasing the minimum marriage age would enable girls to pursue higher education. Consequently, this is believed to increase the national working population and make women financially independent. The ‘Young Voices National Report‘(2020), per contra, stated that the increase in the marriage age would have a meager effect on female enrolment in higher education institutions. The report surveyed 2,500 children who were primarily from marginalized communities across 15 states in India. Many participants opined that the main reasons to not opt for higher education are attributed to financial issues, the safety of females in universities, and the lack of quality education. Another significant barrier is accredited to the notion that the role of women in society is limited to private or domestic spheres. As a consequence, several communities in India consider educating girls beyond high school redundant. Merely increasing the minimum marriage age, therefore, would play a minor role in motivating women to pursue higher education. The logical approach lies in ensuring access to quality higher education, offering scholarships, subsidizing tuition fees, and changing patriarchal mindsets.

There also exist other convincing reasons to not increase the legal age to marry. In Indian states like Karnataka and Haryana, marriages between individuals below the prescribed legal age are declared void. Ensuing this declaration, Karnataka was still unsuccessful in deterring child marriages. In spite of this, the Government of India is proposing to amend the PCMA to declare all underage marriages void. Keeping this in mind, the consequences of nullifying marriages where the brides were between the ages of 18 to 21 would be repugnant. These women would not be entitled to inheritance, social protection, or reparation rights as the marriage would lack legal recognition. The complexities delve not just into the marriage but persist beyond it as well. This is particularly true for widows wedded between the ages of 18 to 21. These women would be denied a widow’s pension if at all such an increase in the minimum marriage age takes place. Hence, the proposed amendment would put women and the children born out of these marriages in a vulnerable position.

Lastly, the proposed law is believed to decrease child marriages. However, the pandemic brought with it a host of complications such as the migrant worker crisis and alarming unemployment rates and rural India had to bear the brunt of it. These areas are now plagued with hunger and impoverishment. In addition, female children are considered ‘economic liabilities’. This is for a predominant cultural practice in marrying a girl involves paying a hefty dowry to her in-laws. It is also to be noted that the quote for dowry increases with the bride’s age. It is for these reasons that the sudden upsurge of the instances of child marriage occurred. Families living in impoverished conditions are further pressured into marrying their daughters for they would have one less mouth to feed. These hasty nuptials are also done in the belief that the marital homes could provide for the new bride financially. The non-adherence to the current minimum marriage age laws can be attributed to the aforementioned socio-economic factors. Hence, ameliorating the situation would require eradicating the dowry system. One of the main solutions to this lies in reshaping beliefs to view dowry as what it truly is: a social ill. This just goes to show increasing the marriage age has barely any role to play in eliminating social realities such as dowry and child marriage. It merely is just another road to hell paved with good intentions.

The Way Forward

Women empowerment is asserted as the right entitled to females to make vital life decisions. Granting the autonomy to choose when to marry, hence, is put forth as a manifestation of empowerment. In some fragments of society, if a law were to be implemented to increase the legal age to 21, an adult woman would have little to no autonomy in her personal matters. Hence, keeping two consenting adults from marrying each other not only violates their constitutional right to personal liberty but also occludes the path to empower women. As also highlighted by a participant in the Young Voices’ survey, when adults are bestowed political rights, why deny the right to marry?

Most importantly, changing the laws would not change ground realities. We already have a minimum marriage age in place. However, it hasn’t deterred child marriages as much as it should have. India, moreover, contributes to one out of every three child brides in the world, despite being home to just 17.7% of the world’s population. As per the 2016 National Family Health Survey (NFHS)-4, 31% of married Indian women beget children before they attain 18 years of age. As we’ve seen so far, socio-economic conditions coupled with illiteracy give rise to early marriages. The onus of improving the status of women in the country cannot be pivoted to legislators alone. The gap between laws and their implementation can only be bridged if a workforce consisting of people from all walks of life address the situation collectively.

A welcome step, therefore, would be to start working at the grassroots. This can be done by providing better access to schools, sanitation facilities, and reproductive healthcare. This in addition to instituting nutritional programs and other such welfare measures that could remedy the plight of mothers and children living in impoverished conditions. Ignorantly debating about the legal marriage age as a means of improving the condition of women would be futile without acknowledging the real causes which go beyond the law.