This week, the Delhi High Court took up a plea that sought a uniform age of marriage for men and women. A bench comprising Chief Justice D N Patel and Justice C Hari Shankar issued a notice to the Centre and the Law Commission of India, seeking their response to the public interest litigation filed by advocate and BJP spokesperson Ashwini Kumar Upadhyaya.
Currently, the law prescribes that the minimum age of marriage is 21 and 18 years for men and women, respectively. The minimum age of marriage is distinct from the age of majority, which is gender-neutral. An individual attains the age of majority at 18 as per the Indian Majority Act, 1875. Read in Malayalam
Why a minimum age
The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevent abuse of minors. Personal laws of various religions that deal with marriage have their own standards, often reflecting custom.
For Hindus, Section 5(iii) of the Hindu Marriage Act, 1955 sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom. Child marriages are not illegal but can be declared void at the request of the minor in the marriage.
In Islam, the marriage of a minor who has attained puberty is considered valid under personal law.
The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively.
How the law evolved
The Indian Penal Code enacted in 1860 criminalised any sexual intercourse with a girl below the age of 10. The provision of rape was amended in 1927 through the Age of Consent Bill, 1927, which made marriages with a girl under 12 invalid. The law had faced opposition from conservative leaders of the nationalist movement such as Bal Gangadhar Tilak and Madan Mohan Malaviya who saw the British intervention as an attack on Hindu customs.
In 1929, the Child Marriage Restraint Act set 16 and 18 years as the minimum age of marriage for women and men respectively. The law, popularly known as Sarda Act after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man, respectively.
Two genders, two ages
The different legal standards for the age of men and women to marry has been a subject of debate. The laws are a codification of custom and religious practices that are rooted in patriarchy. In a consultation paper of reform in family law in 2018, the Law Commission argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
Women’s rights activists too have argued that the law perpetuates the stereotype that women are more mature than men of the same age and therefore can be allowed to marry sooner. The international treaty Committee on the Elimination of Discrimination against Women (CEDAW), also calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men.
The Law Commission paper recommended that the minimum age of marriage for both genders be set at 18. “The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals,” the Commission noted.
The challenge in court
Upadhyaya, the petitioner in the Delhi High Court case, has challenged the law on the grounds of discrimination. He alleges that Articles 14 and 21 of the Constitution, which guarantee the right to equality and the right to live with dignity, are violated by having different legal age for men and women to marry.
Two Supreme Court rulings could be significant to the context of this argument.
In 2014, in National Legal Services Authority of India v Union of India, the Supreme Court while recognising transgenders as the third gender said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.”
In 2019, in Joseph Shine v Union of India, the Supreme Court decriminalised adultery and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.”
The Delhi High Court will hear the ongoing case next on October 30.
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