The Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to raise the age of legal marriage for women from 18 to 21, will apply to all communities in the country and, once enacted, will supersede existing marriage and personal laws.
Introduced in Lok Sabha Tuesday by Smriti Irani, Union Minister for Women and Child Development, the Bill which proposes amendments to the 2006 law was sent to a Parliamentary Standing Committee for further discussion.
Irani said the proposed legislation was secular. “All women from all faiths, under Hindu Marriage Act or the Muslim Personal Law, should get equal rights to marry,” she said.
Members of the Congress and other Opposition parties opposed the Bill and questioned the “haste” with which it had been brought to the House.
The Bill states: “In section 1 of the Prohibition of Child Marriage Act, 2006 (hereinafter referred to as the principal Act), in sub-section (2), after the words “citizens of India without and beyond India”, the words, figures and brackets “notwithstanding anything contrary or inconsistent therewith contained in the Indian Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act, 1936; the Muslim Personal Law (Shariat) Application Act, 1937; the Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969, or any other custom or usage or practice in relation to marriage, under any other law for the time being in force” shall be inserted.”
The amendment proposed to define a child states: ‘(a) “child” means a male or female who has not completed twenty-one years of age’.
Raising the marriage age, the Government says, is key to gender equity and justice. There are concerns over how the law plays out among the poor and marginalised groups. Applying it across faiths sets the stage for a debate on the limits of personal law.
The Statement of Objects and Reasons in the Bill states: “In order to address the issues of women in a holistic manner, as a measure for empowerment of women, gender equality, increasing the female labour force participation, make them self-reliant and to enable them to take decisions themselves, the Bill, inter alia, proposes to — (i) amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage; (ii) bring women at par with men in terms of marriageable age; (iii) prohibit child marriage irrespective of any law, custom, usage or practice governing the parties; (iv) declare that provisions of the Act shall have overriding effect over every other law, custom, usage or practice governing the parties; (v) make consequential amendments to the other laws relating to marriage; and (vi) make the amendments effective, in relation to marriageable age, two years from the date the Bill receives in assent of the President, so as to provide sufficient opportunity to one and all in our collective efforts and inclusive growth, and to make effective other provisions immediately.”
Irani told the House: “I understand the social, cultural, familial and sentimental issues associated with this decision. I wish to myself propose, on behalf of the government, that this be discussed in detail in the Standing Committee. On behalf of the government, I would request that this Bill be sent to the Standing Committee.”
Earlier, Opposition members, while criticising the government for the “haste” in introducing the Bill, said it was a violation of fundamental rights and would impact personal laws.
Replying to the criticism, Irani said, “We are 75 years late in providing equal rights to men and women to enter into matrimony. In the 19th century, the marriageable age for women was 10 years. By 1940, it was increased to 12-14 years. In 1978, women who reached the age of 15 were married. For the first time, through this Bill, men and women, keeping in mind the right to equality, can decide on their marriage.”
She took exception to suggestions that uneducated women would not be able to understand or exercise their rights, saying it was “an insult to rural women”.
Between 2015 and 2020, she said, as many as 20 lakh cases of child marriage were stopped. The NFHS data shows that between age 15 and 18, 7% girls have been found to be pregnant. As many as 23% girls were married before age 18 even though the law does not allow it, she said.
Opposing the Bill, Congress leader Adhir Ranjan Chowdhury said: “We want to suggest to the government that if you do anything in haste, you are likely to commit mistakes. Across India, this issue has generated a lot of debate. And this government has neither consulted states nor spoken to stakeholders… We demand that this Bill be referred to the Standing Committee right away.”
AIMIM’s Asaduddin Owaisi said it was in violation of fundamental rights under Article 19. ET Mohammed Basheer of IUML said the Bill was unconstitutional and was violative of Article 25 of the Constitution. “This is an attack on personal law and fundamental rights in this country,” he said. The NCP, DMK, Shiv Sena and TMC too demanded that the Bill be sent to the Standing Committee.
The legal age of marriage for women is being raised by the Centre on the recommendations of the Jaya Jaitly Committee that was constituted by the WCD Ministry in June 2020.
“What we have said is that even when the age of marriage was first set at 16 years, and then raised to 18 years in 1978, it’s not that the Muslim Personal Law was changed, rather they kept quiet. However, our understanding is that Muslims automatically followed the new law, even if there were no changes made. The Muslim age of marriage is not low. There is also a Supreme Court judgement that has said that when there is a contention between a constitutional law and a personal law, the constitutional law will prevail. Our intention is not to harm the Muslims, but just like the triple talaq, if any law contradicts the Constitution, the Constitution of the country has to prevail,” Jaitly told The Indian Express.