Age of consent Act 1891
Why it is in news?
Prime Minister, Narendra Modi announced that the central government has set up a committee to reconsider the minimum age of marriage for women which is currently 18 during his address to the nation on the 74th independence day.
The Union Ministry for Women in Child Development set up a committee to consider matters pertaining to the age of motherhood, the imperative of lowering the Maternal Mortality Ratio and the improvement of nutritional levels among women, headed by Jaya Jaitley on 2nd June 2020.
The committee, proposed in the union budget 2020-21 will look for the correlation of age of marriage and motherhood with health, medical well-being and nutritional status of the mother and newborn, infant or child during pregnancy, birth and afterwards.
The committee will also examine key parameters like Infant Mortality Rate (IMR), Total Fertility Rate ( TFR), Sex Ratio at Birth and Child Sex Ratio (CSR), and look at the possibility of increasing the age of marriage for women from the present 18 years to 21 years.
In 2019, International Food Policy Research Institute ( IFPRI) conducted a study that showed that children born to adolescent mothers ( 10-19 years) were 5 percentage points more likely to be stunted than those born to young adults ( 20-24 years) and 11 percentage points more stunted than children born to adult mothers (25 years or older).
Also, the children born to adolescent mothers had 10 percentage points higher prevalence of low weight than adult mothers.
This study also highlighted some important factors such as lower education among teenage mothers and their poor economic status, which had vigorous links with a child’s height and weight measurements.
It suggested that increasing the age at first marriage, age of first birth and girls’ education are promising approaches to improve maternal and child nutrition.
Argument Against Increasing the Minimum Age of marriage
The National Coalition Advocating for Adolescent Concerns affirms that increasing the legal age of marriage for women will only “artificially expand the numbers of married persons deemed underage and criminalise them and render underage married girls without legal protection.”
Alternatively, transformative, well-resourced measures that intensify girls’ access to education and health, create enabling opportunities and place girls’ empowerment at the centre will not just delay marriage but lead to long term, positive health and education outcomes.
The committee recommended bringing education for 3 to 5-year-olds and 15 to 18 years under the Right to Education in lieu of restricting the law to children between 6 years to 14 years.
In 1860, the Indian Penal Code criminalised sexual intercourse with a girl below the age of 10 and the provision of rape was amended in 1927 through the Age of Consent Bill 1927 which stated that marriage with a girl under 12 would be invalid.
The child marriage Restraint Act set the minimum age of marriage for women and men at 16 and 18 years respectively in 1929.
This law is also known as the Sarda Act after its sponsor Harbilas Sarda, a judge and member of Arya Samaj.
The Sarda Act was amended in 1978 to prescribe the age of marriage for a girl and boy as 18 and 21 years respectively.
Present age for marriage
The Special Marriage Act of 1954 and the prohibition of Child Marriage Act, 2006 recommend 18 and 21 years as the minimum age of consent for marriage for women and men.
Keep in mind that the minimum age of marriage is distinct from the age of the Majority which is gender-neutral. An individual attains the age of majority at 18 either girl or boy as per the Indian Majority Act, 1875.
This law prescribes a minimum age of marriage to outlaw child marriages and prevents the abuse of minors. Personal laws of various religions that will deal with marriage have their own standards that reflect their custom.
The Hindu Marriage Act 1955, sets 18 years as the minimum age for the girl and 21 years as the minimum age for the boy. However, child marriage is not illegal in India even though it can be declared void at the appeal of the minor in the marriage.
The marriage of a minor who has attained puberty is regarded as valid in Islam.
Furthermore, sexual intercourse with a minor is rape and the ‘consent’ of a minor is considered invalid since she is deemed incapable of giving consent at that age.
Different Legal Ages of Marriage for Boys and Girls
The reasoning behind the law for having different legal standards of age for men and women to marry is a codification of custom and religious practices. Although this law has been challenged on the basis of discrimination because such a law violates Articles 14 and 21 of the Constitution, which guarantees the right to equality and the right to live with dignity.
Against the supreme courts’ Following judgements:
In the year 2014, in the National Legal Services Authority of India versus Union of India case, the supreme court while recognising transgenders as a third gender, said that justice is delivered with the “assumption that humans have equal value therefore they should be treated by equal laws”.
The Joseph Shine versus 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, in the year 2019.
Additionally, India is a state party of the Convention on the Elimination of All Forms of Discrimination against women, 1979.
The committee on the Elimination of Discrimination against Women monitors the implementation of the convention and calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men.
Therefore, it should be noted that despite laws mandating minimum age and criminalising sexual intercourse with a minor, child marriage is very prevalent in India.
UNICEF estimates indicate that every year, at least 1.5 million girls under the age of 18 are married in India which is why the country is considered the home to the largest number of child brides in the world accounting for a third of the global level.
Early marriage or pregnancy is associated with increased child mortality rates and affects the health of a woman or mother. Therefore, there is a need to focus on the health of the mother and preparedness to carry a child.
Also, the government needs to emphasize upon economic and social empowerment of women and target social and behaviour change communication (SBSC) campaigns. Increasing the minimum age of marriage for girls will also promote gender-neutrality.