Women’s legal age to marry has always been a matter of great concern in India over the past few decades. After the adoption of the Indian constitution in 1950, the Child Marriage Act has undergone various modifications. Since 1978, the minimum legal age for marriage has been 18 for women and 21 for men by virtue of the Sharda Act of 1929 (The Child Marriage Restraint Act, 1929).
On February 1, Union Finance Minister Nirmala Sitharaman proposed, during the Budget Speech 2020-2021, to increase the marriageable age of women from 18 to 21 years and suggested appointing a task force that would come out with its recommendations within the period of six months.
As per the sources, the task force will include members of government think-tank Niti Aayog, ministries of law, health and justice; the ministry of women and child development, along with three independent members. The afore-mentioned task force will suggest measures to analyze the impact of marital age on maternal mortality rate, infant mortality rate, nutritional status of the mother and child, the sex ratio at birth, child sex ratio, and encourage higher education among women. It will also come up with relevant amendments in the Protection of Children from Sexual Offences, Prohibition of Child Marriage Act, and the Indian Penal Code to implement its recommendations.
The argument behind raising the legal age of marriage of women is that childbearing at lower ages leads to complications that seriously affect the health of the woman and her child thereby increasing infant and maternal mortality rate (MMR). According to a report by NCBI (National Center for Biotechnology Information), infant mortality is much higher in children born to mothers who are married at an early age. “The health ministry has always advocated spacing of three years between the age of marriage and pregnancy. It has been observed in multiple cases that mothers bearing a child at an early age ended up in complications, both for the mother and the child,” an official of the health ministry said.
As India moves further on the road of development, various opportunities open up for women to pursue higher education and follow their careers. There is an essential need for lowering MMR as well as the improvement of nutrition levels. The entire issue of the age of a girl entering motherhood has to be seen in this light.
As the graph suggests, with the increasing age of the mother at the birth of the child, the relative risk of early child mortality decreases.
On the other hand, this proposal complements the proposed population control law as the number of reproductive years will automatically decrease if the motherhood age is legally made 21 years.
The age of marriage also affects maternal and child health resources. In the wake of this, the government is inclined towards bringing parity between the marital age for both men and women.
WILL IT ACTUALLY HELP?
The proposal of the government is appreciated but the main contention which needs to be addressed is that will the proposal resolve the contemporary problems related to maternal health completely.
The primary cause of deaths of girls aged between 15-19 years is pregnancy-related complications. In the year 2017, 35000 girls died from issues during pregnancy and childbirth though it has significantly decreased from 103,000 in the year 2000. Additionally, 22 percent of all the women in the age group of 20-24 years was pregnant with their first child when they were just 18.
Women who are married and impregnated at a very early age lack the opportunities to get proper education and access to health care, skilled child delivery, antenatal care, and the complete vaccination of their children which indicates the lack of proper child health care regime. Attention should be drawn to delivery practices and facilities, which are responsible for most of the maternal mortality. Hygienic and well-equipped labor huts that provide quality care should be available in each community and district. Improvements should be made in the quality of prenatal care in villages, towns, primary health care, and services should be properly evaluated.
Postpartum care programs and sessions should function as centers for family activities. Patients with high risk should be accommodated in maternity waiting homes which are located near hospitals. All government vehicles should be made available for emergency situations. There should be a description of childbirth, care of the newborn, and pregnancy in the home science books. Mass health education should be made available through mass media that is a useful tool for creating awareness and the right to safe motherhood should be assured.
DISCRIMINATION: TWO GENDERS, TWO AGES
An advocate and BJP leader, Ashwini Upadhyay, filed a public interest litigation (PIL) in the Delhi High Court seeking abolition of the different minimum age for marriage of men and women citing this as discrimination on the basis of gender. It was alleged by him that having a different legal age for men and women to marry violates the Articles 14 and 21 of the Constitution, which guarantees the right to equality and the right to live with dignity. There are other Supreme Court rulings as well that are of great significance to the context of this argument. They are as follows:
In National Legal Services Authority of India v Union of India, the Supreme Court 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,” while giving recognition to transgenders as the third gender.
In Joseph Shine v Union of India, the Supreme Court said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity” and decriminalized adultery.
The Supreme Court, in the past, played the role of a torchbearer to do away with any kind of discrimination and in the present proposal also it is said that the proposed move has its origin in the Supreme Court judgment of October 2017, Independent Thought vs Union Of India, which predominantly concentrated on marital rape “exemption”. In the said judgment, it was held that child marriages should be rendered void-ab-initio (invalid from the outset) to protect the women from marital rape, which set the ball rolling for the Centre to amend the existing legal framework to declare child marriages invalid.
The government’s proposal is a welcome step but just doing this would not help to resolve the current situation. Along with it, other measures should also be taken such as, to ameliorate the maternal health of women, there must be identification and addressal at both the health system and societal levels, of barriers that restrict access to quality maternal health services. However, due to gaps in knowledge, availability of resources, and policies, the coverage of life-saving health practices remains at a low level. In many of the areas, there is a wide aperture between the rich and the poor and the urban and rural divide. Access to health services is often dependent on where they reside and the families’ or mother’s economic status. In such cases, unless funding is set aside by each state for improving infrastructure and training staff to tackle major causes of maternal deaths across all delivery points, the review process would not be effective. We need to put more efforts to reach those who are very much at risk, such as women in rural areas, urban slums, women from minorities and tribal, scheduled caste and scheduled tribe, adolescent mothers, poorer households, to achieve the global goal of saving women’s lives and improving maternal health of every woman.
ABOUT THE AUTHORS
Gangesh Aggarwal is a first-year law student at Gujarat National Law University (GNLU). He has a keen interest in writing and is also a writer at The Economic Transcript. His academic interests lie in the intersection of law with human rights, gender, and policy.
Megha Mehta is a first-year law student at Gujarat National Law University (GNLU). She has a profound interest in the areas of Gender Equality and Constitutional Law.