As many as 650 million women in the world today were married as children. About a third of them were married before the age of 15. In India, which has the dubious distinction of being home to the most number of child brides, UN estimates suggest that 1.5 million girls get married before they turn 18. About 16 per cent of girls in the age group of 15-19 are married at present. According to the 2011 census, 44 per cent of women in Assam were married before the age of 18. The figures for Rajasthan, Bihar and Madhya Pradesh were 47 per cent, 46 per cent and 43 per cent, respectively.
Assam Chief Minister Himanta Biswa Sarma’s decision to give maximum priority to addressing this problem is well-meaning. Child marriages affect the national economy negatively and do not allow us to come out of the vicious cycle of inter-generational poverty. Child marriage deprives women of education and life skills. Early pregnancies adversely affect the physical and mental health of young mothers. The question, however, is: Are mass arrests and the indiscriminate use of criminal sanctions, that the Assam government has resorted to, the only solution to the problem of child marriage?
More than 4,000 FIRs have been filed and close to 2,500 people have been arrested in Assam in the past four days. Sarma has asserted that the crackdown will continue till the 2026 elections to the state assembly. The links between the polls and arrests as a solution to the age-old social problem aren’t quite clear. More importantly, deterrent theories of punishment have not succeeded anywhere in the world and are relics of the past in most places. Assam should not follow the example of regressive Muslim monarchies in the Middle East whose record on human rights and the rule of law is appalling. Scandinavian countries are good examples to follow.
Modern international laws and conventions — the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962), the UN Convention on the Elimination of All Forms of Discrimination against Women (1979) and the Beijing Declaration (1995) — do mandate countries to stipulate a minimum legal age for marriage. But child marriages continue to have religious sanction in large parts of India.
Hindu and Muslim Personal Laws do not explicitly prohibit child marriage. The Manusmritis say that if the father fails to marry off his daughter within three years of her attaining puberty, she can find a spouse on her own. According to Medhatithi, one of the oldest and earliest commentators on the Manusmriti, eight years is the right age for a girl to be given in marriage. The Rig Veda mentions garbhadhan — literally, attaining the wealth of the womb. It is the first of the 16 samskaras a Hindu is expected to perform. The Greek traveller Megasthenes (350-290 BC) has written that he was told that the women of the Pandian kingdom in South India bear children at six years of age. About seven centuries later, the Persian polymath, Al Biruni, wrote that child marriages were rampant in India.
The Muslim clergy too considered child marriages to be valid, though such children have the option to nullify their marriage.
The colonial state should be credited for reforming marriage laws. The Age of Consent Acts of 1861 and 1891 brought in reform in conjugal rights. The 1861 Act laid down 10 years as the minimum age for sexual intercourse. The Hindu intelligentsia opposed raising this age to 12 on the grounds that it violated norms related to garbhadhan.
The death of 10-year-old Phulmoni Dasi in 1890 created public pressure to reform the Age of Consent Law. Phulmoni’s husband, Hari Mohan Maiti, was acquitted of charges of murder as she was just above the age of 10. Forty-four women doctors compiled a long list of child wives who had met the same fate as Phulmoni. The 1891 Act raised the age of consent for sexual intercourse to 12.
Four years before this, the Rukmabai case gave new impetus to the campaign of social reformers like M G Ranade and Behramji Merwanji Malabari. Rukmabai had refused to solemnise her marriage, which had taken place when she was 11. Her husband Dadaji Bikaji had filed a petition for the restitution of his conjugal rights. He was supported by conservative Hindus including Bal Gangadhar Tilak.
When the Age of Consent Act was amended in 1891, the conservatives criticised it as interference in Hindu society. Tilak’s newspapers Maratha and Kesari were at the forefront of this campaign. Rukmabai was probably the original Shah Bano, who stood up for her rights.
These laws, however, had limited impact. In 1927, Rai Sahib Har Bilas Sarda introduced the Child Marriage Restraint Act in the Legislative Council of India and sought a ban on marriages of children below the age of 12. The legislation was passed in 1929 – it raised the age of marriage to 14 for girls and 18 for boys. After Independence, the marriageable age for girls was raised to 15 in 1949 and 18 in 1978. The Prohibition of Child Marriage Act, 2006, stipulates imprisonment of two years or a fine which can go up to Rs 1 lakh, or both.
In several cases – P Venkataramana (1977), Rabindra (1986), G Saravanan (2017) — high courts have ruled that child marriages are neither void nor voidable but valid. In 2021, the Punjab and Haryana High Court held a Muslim girl’s marriage after attaining puberty as valid. The Supreme Court has recently agreed to hear this issue. On January 11, 2023, the Karnataka High Court refused to hold a marriage with a minor girl as void, under the Hindu Marriage Act, 1955. In the Hadiya case (2018), the Supreme Court mentioned attainment of puberty, and not 18 years, as the minimum age of marriage, as one of the conditions for a valid Muslim marriage.
In its 205th Report (2008), the Law Commission has rightly suggested that poverty, indebtedness and dowry are the main reasons that poor families marry off their daughters at an early age.
The Assam government should use education and a mass campaign to educate parents, rather than a coercive criminal law, to deal with the problem of child marriages. In the period between 2000-2010, the growth of women’s education, government investment in adolescent girls and public messaging have brought down the percentage of child marriages appreciably — from 47 per cent to 30 per cent.
If in Assam, child marriages are more prevalent amongst Muslims, educating Muslim girls should be given the highest priority. Let the energetic CM of the state recognise the complex nature of this social problem which no criminal law can really tackle. Let him implement Prime Minister Narendra Modi’s visionary and practical solution of Beti Bachao, Beti Padhao.
The writer is a constitutional law expert. Views are personal
Child marriages affect the national economy negatively and do not allow us to come out of the vicious cycle of inter-generational poverty, writes Faizan Mustafa. (Illustration: C R Sasikumar) 
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