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Thursday, September 24, 2020

Eighteen and over

Evidence points to the urgency of reducing the age of consent, to eliminate the unintended harm of law on the very population it seeks to protect.

August 25, 2020 7:16:01 pm
arranged marriageThis disproportionate and discriminatory use of the law against self-arranged marriages is enabled by the increase in age of sexual consent from 16 to 18 years with the enactment of POCSO in 2012.

By Madhu Mehra

The government’s move to consider increasing the minimum age of marriage for girls from 18 to 21, bringing it on par with that for boys, has been welcomed by many, including in this newspaper’s editorial (IE, August 18, ‘Make it same’). Such endorsements arise from the commonly held, though flawed assumptions, that uniform ages for both parties advances gender equality.

International standards have long rejected the uniformity model of equality. The UN Convention for Elimination of All Forms of Discrimination Against Women (CEDAW), adopts “equality of outcomes” over declarations of sameness, or protectionist differentiations. This requires evaluating a law against its implementation, to see whether it demonstrably enhances the rights and freedoms of the intended beneficiaries. Similarly, Article 15 of the Constitution mandates special provisions be made to favour women and children, even as it prohibits sex discrimination.

Since the law is one of a range of measures that enables women to navigate an uneven playing field, we must see if the performance of the present legislation suggests a necessity for change to ultimately achieve equality goals. A country-wide study of underage marriage cases from 2008-17 by Partners for Law in Development shows that legal action is mostly initiated by parents retaliating against self-arranged marriages by their daughters.

A minority of these cases are initiated by parents when arranged marriages have broken down. While the Prohibition of Child Marriage Act (PCMA), 2006, carrying a maximum sentence of two years, is invoked against arranged marriages, self-arranged marriages often involve prosecutions of the husband for rape under the Protection Against Child Sexual Abuse Act (POCSO), 2012, which is punishable by a minimum of 10-20 years imprisonment.

This disproportionate and discriminatory use of the law against self-arranged marriages is enabled by the increase in age of sexual consent from 16 to 18 years with the enactment of POCSO in 2012. Introduced despite much opposition, it criminalises adolescent sexuality without regard to non-coercive relations between peers. With underage marriages being primarily an outcome of poverty and insecurity, the law is overwhelmingly weaponised against young couples from poor populations.

Of equal concern is the move towards declaring all underage marriages void, without any exception to context or circumstance. Such amendments introduced in Karnataka and Haryana, rob girls of their social status, matrimonial rights and legal protections, while criminalising adults involved in the marriage. This troubling move is reportedly being considered by other states and the Centre.

The PCMA declares underage marriages voidable, giving minors the option of repudiating the marriage within two years of attaining adulthood. Relying on this, the courts frequently uphold the wishes of the girls in retaliatory cases. This is consistent with the principles of evolving capacities of the child in the UN Convention on the Rights of the Child (CRC), which recognises adolescent sexuality, their right to be heard, and the obligation to give due weight to their views. Accordingly, a joint recommendation of CEDAW and CRC, makes allowances for underage marriages when exceptional circumstances exist and the minor is 16 years.

The evidence points to the urgency of reducing the age of consent, to eliminate the unintended harm of law on the very population it seeks to protect. The age of marriage and adulthood is 18 globally, and must not be disturbed for it gives the young a legal voice in personal matters. With poverty and insecurity as key drivers of early marriage, the government must provide food security, extend the right to education to cover schooling and vocational training, revamp health care, and render confidential quality sexual and reproductive health services for adolescents. Not token laws, but investments, will enable girls from disadvantaged contexts to flourish.

The writer is executive director of Partners for Law in Development, and a founding member of the National Coalition Advocating for Adolescent Concerns (NCAAC).

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