Marriage is often called a “holy union of two souls” and marks the beginning of an individual’s life as an adult in many cultures across the globe. It is an institution that has been around for centuries. And while marriage continues to be an essential aspect of a people’s life even today, there is an ugly side to this institution that threatens millions of lives across the globe – child marriages. The UNICEF defines child marriage as, “any formal marriage or informal union between a child under the age of 18 and an adult or another child.” Although stringent laws have been enacted across the globe to stop the menace of child marriage, it is still an abhorrent practice that continues unabated.
Child marriages have been ingrained in our social fabric for a long time. In many cultures across the globe, it was a norm for a female child to get married just after hitting puberty. It was believed that a girl becomes a woman after she starts menstruating and thus, marriage was considered to be the next step that ultimately solidified her position as a wife and mother.
Religion has governed marriages for a long time. Most religions prescribe a minimum age for a person to get married. For example, Catholic’s Canon Law, which remains valid in many countries around the world sets the minimum age for marriage at 14 for females and 16 for males. Manu Smriti, which is an ancient Hindu legal text, advises girls to get married within three years of reaching adolescence. According to classical Islamic Law, marriageable age relates to the onset of puberty.
However, the custom of child marriage is not exclusive to one faith; it actually happens through religions and regions. For instance, child marriage is widespread among both, the Muslims and Hindus in India, which is the home to almost 40% of the world’s child brides. Child marriage is also rampant in Burkina Faso and Ethiopia and is practised by both, the Christian and Muslim communities. In a study conducted by the International Centre for Women’s Research, it was found that what remains constant across countries with rates of child marriage is not adherence to one specific religion, but rather factors such as poverty and girls’ limited educational opportunities.
According to UNICEF’s recent report, there are 765 million child bride and child grooms across the world. The report suggests that there are 115 child grooms globally, while the rest are child brides. It is said that 12 million girls marry before they turn 18 years old, every year. This is extremely concerning since these young girls stand at a higher risk of being exploited physically and mentally. They are also more prone to complications arising from early pregnancy, which leads to death in numerous cases. Child grooms are also badly affected as they end up having to take up adult responsibilities and are pushed into early fatherhood.
Regardless of a child’s gender, child marriage is a pervasive issue that robs children from their right to have a safe and secure childhood and forces them to become an adult at an early age. Many international bodies call for a universal age of marriage and reiterate the importance of obtaining both the parties’ free and informed consent before getting married. The Convention on the Rights of the Child (CRC) proposes that the minimum age for marriage should be 18 years, while Convention on the Elimination of Discrimination Against Women (CEDAW) makes it incumbent upon the States to guarantee the right to freely choose a spouse and to enter into marriage only with the full and free consent as per the CRC.
Child Marriages Across The Globe
Almost all the countries in the world have mandatory minimum age thresholds to shield children from child marriage. Although the age of 18 officially marks the beginning of adulthood in many nations, marriageable age does not necessarily equate to the age of majority, legally or otherwise in certain countries like India, marriageable age defers for males (21 years) and females (18 years).
On the face of it, most nations (153 of 198) mandate that individuals who choose to get married must be over the age of 18. However, 117 of these nations still allow children to get married under certain circumstances.
In Australia, for instance, under exceptional circumstances, if a person is 18, their spouse may be as young as 16 years old and they can get married with parental consent and judicial approval.
Despite the existence of a marriageable age and exceptions being granted only under some circumstances, child marriage continues to be a huge problem that governments across the globe are unable to deal with.
The issue with child marriages in most countries is that they are unreported and even if these marriages don’t have legal sanctity, that rarely deters people from getting children married. One such country is Ethiopia, where the minimum age for marriage is 18, but in the absence of a centralized database to track births, marriages and deaths, it’s often very difficult to enforce this rule. In Ethiopia, child marriage by kidnapping or coercion between cousins is a cultural practice. As a consequence, 40% of Ethiopian girls get married before they turn 18 years old and almost 14% get married before their 15th birthday.
Another country with extremely high rates of child marriages in Niger. There is no minimum legal age of marriage in Niger. Almost 76% of the girls in Niger get married before they turn 18 and 28% girls get married before their 15th birthday. According to UNICEF, Niger has the world’s highest child marriage incidence rate and the 14th highest absolute number of child brides – 676,000.
In Asia, Bangladesh has the highest prevalence rate of child marriages. Almost 59% of the country’s girls get married before turning 18 years old and 22% of girls get married before turning 15. Like India, Bangladesh has different marriageable ages – 21 Years for males and 18 years for females. By enforcing fines and jail time for adults who marry girls, Bangladesh has shown some signs of decreasing child marriage rates. However, in specific cases, loopholes in the judicial process still allow child marriage, but what constitutes as a special case is still not defined.
Child Marriages in India
The issue of child marriage has plagued India for centuries. Despite the existence of robust laws to tackle this issue, the sheer number of such cases in India are jarring.
India is home to the largest absolute number of child brides in the world, with over 27 per cent of the girls in the country getting married before turning 18 years old and 7 per cent girls get married before turning 15. One of the most important factors behind child marriage here is dowry and its relation to the age of a girl. The dowry demanded by the groom’s side rises as a girl grows older. Thus, in many situations, parents of the girl are compelled to get their daughter married in the fear of having to pay a higher amount for her dowry in the future.
Another horrifying reality of child marriage in India is that approximately 12 million Indian children are married before they turn 10 years old. There are several social, religious and economic factors at play that have resulted in child marriage being normalized in many parts of the country. For some families, getting their daughter married early gives her a long time to produce as many children as possible. For some others, getting their daughters married at an early age is a way of protecting their honour. These customs have been so ingrained in the Indian society that even after introducing multiple laws to stop the occurrence of such marriages, this problem continues to persist.
The first attempt to define child marriage in India was made in The Child Marriage Restraint Act, 1929. [CMRA] In the original Act, the minimum age for marriage of girls was set 15 for girls and 18 for boys. However, in a subsequent amendment in the year 1978, the limit was raised to 18 for girls and 21 for boys, which stands even today. The penalty for a male between the ages of 18 and 21 for marrying a child was up to 15 days in jail, a fine of 1,000 rupees, or both.
The punishment for a man over 21 years of age was up to three months in jail and a potential fine. The penalty was imprisonment of up to three months and a potential fine for someone who performed or directed a child marriage ceremony unless he could show that the marriage he performed was not a child marriage. The sentence of imprisonment up to three months or a potential fine for a parent or guardian of a child who took part in the marriage.
There were multiple issues with the CMRA, 1929. Given the pluralistic nature of our country and the existence of multiple personal laws, there was a question pertaining to the applicability of this Act. Since marriage is subjected to personal laws of different faiths, there were contentions made by various religious groups regarding its applicability. In 1937, it was declared that no minimum limit on marriageable age was prescribed under Muslim personal laws and parental consent was acknowledged.
Although CMRA made progress introducing a minimum age for marriage, it had remained a challenge to enact the legislation. The customary traditions and personal laws of various religious groups, which regulate family matters, continue to be enforced and upheld by different courts. With time, only the Hindu Marriage Act, 1955, shifted to put the age requirement in line with the CMRA. India does not have a uniform civil code and thus, when cases of child marriage were brought before the Court, there was a scope for differential treatment on the basis of personal laws.
The Government of India enacted the Prohibition of Child Marriage Act, 2006 [PCMA, 2006] in the hopes of building legislation that could fix the shortcomings of the CMRA, 1929. The intention of the act was to prevent and prohibit child marriage, unlike its predecessor whose aim was to restrict it. This Act kept the minimum age for marriage the same as the CMRA, 1929, but made certain substantial changes. For example, under the present Act, individuals who were forced to get married as children have the option of getting their marriage voided up to two years after reaching adulthood and under some conditions, such marriages may be declared null and void before they enter adulthood.
If the marriage is nullified, all valuables, money, and gifts must be returned and the girl must be supported with a place of residence before she marries someone else or becomes an adult. Children born from child marriages are considered valid and parental custody is required to be granted by the Courts. Any male over the age of 18 who enters a marital relationship with a minor or who directs or conducts a child marriage ceremony may be punished with imprisonment or a fine for up to two years.
Despite the PCMA’s progressive intentions, the Act is still embedded with a lot of problems, which is a reason for why the numbers of child marriages in India have not dwindled. First and foremost is the Act’s inconsistencies with personal laws. Certain personal laws permit child marriage, which leads to a lot of confusion. The Courts have not been able to resolve this issue as some high courts have held that personal laws supersede PCMA [Delhi High Court in the case of Mohd. Samim V State of Haryana and Ors] while the others argue otherwise [Gujarat High Court in the case of Independent Thought vs Union Of India]
The second challenge comes with the burden to prove the marriage invalid. Only the child bride or groom may file a petition in their private capacity to nullify their union. In case the complainant is a statutory minor under the PCMA, the petition can be filed only with the assistance of the Child Marriage Prohibition Officer (CMPO) through either a guardian or friend of the married child, who must be an adult. The issue with this process is that children do not always have access to a person of authority, which in this case is the CMPO. The nature of Indian households is such that it is very difficult to do something without the permission of your parents. In case the parents favour such a union, a child has no way to access a redressal mechanism.
The third issue comes with the lack of accountability under the PCMA. In case a CMPO neglects his or her duty, he/she cannot be punished under the PCMA. Other laws for the protection of children, such as the Protection of Children from Sexual Offences Act (POCSO), 2012 make it incumbent upon to fulfil their duties. However, the lack of accountability in the case of PCMA makes room for CMPOs to neglect their duties and be manipulated by the families of the children.
Thus, although the PCMA is a very progressive law on paper, it still has a number of issues which need to be addressed in order to make it an effective law.
Child marriage is a social evil that not only violates children’s basic rights but also gives rise to a plethora of other problems like early pregnancies, complications with childbirth (which often leads to death), domestic violence and poverty. It’s a vicious circle that has no end in sight. Even though governments across the world are trying to put a stop to this menace, due to several societal factors, the problem just does not seem to dwindle.
Although child marriage has an effect on both males and females, there is a disproportionately large number of child brides in the world, that indicates that these females are married to men who are adults. This gap in their ages gives rise to more exploitation – both physically and mentally. It perpetuates a woman’s role as caregiver, as young girls are forced to marry men much older than them and carry their children. Thus, the role of patriarchy and misogyny simply cannot be neglected while dealing with cases of child marriage.
In the Indian context, we have seen legislations to deter child marriage since 1929. And now, almost 91 years later, we are still struggling to eradicate this problem. The fact here is that legislations pertaining to child marriage often clash with personal laws and create a lot of confusion. When the Judiciary struggles to find answers, it’s clear that there are more problems related to the issue than what meets the eyes. Our laws are superficial and to some extent, disregard the cause of the problem at the grass-root level.
What we need here is awareness, education and funding towards building associations that work tackle this problem at its roots. Over the last two decades, the prevalence of child marriages in India has decreased from 47% in 2005-06 to 27% in 2015-16. This steady decrease can be attributed to the newer law and better awareness programs. However, the absolute number of such cases continue to remain very high.
There is also an urgent need to tackle this issue as the COVID-19 pandemic has lead to an economic collapse, which has rendered the poorest of the poor absolutely helpless. Gabrielle Szabo, senior advisor at Save the Children, UK said, “We are deeply concerned about the impacts of COVID-19 on efforts to end child marriage in India, and across South Asia. An increasing number of children falling into poverty as a result of the pandemic will mean more girls in the poorest households, where rates of child marriage are highest. That will mean more girls at risk of early or forced marriage.”
In times of such uncertainty, children across the globe are more vulnerable than ever before. What governments across the world need to do right now is provide economic assistance to families in need as well as by empowering children, especially young girls, with education and networks that would ensure that they can break free from this vicious menace.