Highlights of the Bill
Key Issues and Analysis
PART A: HIGHLIGHTS OF THE BILL
Context
According to the National Family Health Survey 2019-21 (NFHS-5), 23% of women between the age of 20 and 24 were married before 18 years of age. [1] This figure has reduced significantly over the years from 47% in NFHS-3 (2005-06) to 27% in NFHS-4 (2015-16), and to 23% in the latest survey. [2] , [3] In India, the practice of child marriage was first legally prohibited in 1929 through the Child Marriage Restraint Act, 1929. As per the 1929 Act, marriage of girls below the age of 14 years and boys below the age of 18 years was prohibited. This Act was amended in 1978 to increase the minimum age to 18 years for females, and 21 years for men. The Prohibition of Child Marriage Act, 2006 replaced the 1929 Act, with the same minimum age limits. The Prohibition of Child Marriage (Amendment) Bill, 2021 seeks to increase the minimum age of marriage for females to 21 years. The Bill was referred to the Standing Committee on Education, Women, Children, Youth, and Sports on December 21, 2021.
In June 2020, the central government set up a task force (Chairperson: Ms Jaya Jaitly) to examine the correlation of age of marriage and motherhood with: (i) health, medical well-being, and nutritional status of mother and child, during pregnancy, birth and thereafter, (ii) key parameters such as Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR), Total Fertility Rate (TFR), Sex Ratio at Birth (SRB), Child Sex Ratio (CSR), and (iii) any other relevant points pertaining to health and nutrition in this context. [4] The Task Force was also required to suggest measures for promoting higher education among women. According to news reports, the Committee submitted its report in December 2020, where the suggestion to increase the age of marriage for females to 21 was made.[5] However, the report of the task force is not available in public domain.
Key Features
PART B: KEY ISSUES AND ANALYSIS
Different age for attaining majority and being allowed to marry
The Bill increases the minimum age of marriage for females to 21 years, bringing it on par with that for males. However, the age of attaining majority is 18 years under the Majority Act, 1875. This difference may have consequences regarding the rights and responsibilities of persons between 18 and 21 years of age.
Prohibiting marriages between the ages of 18 and 21 years
There are inconsistencies between the minimum age for marriage and certain decisions of the Supreme Court. In 2018, the Supreme Court said that right to marry is part of right to life under Article 21 of the Constitution. [6] It stated that the right cannot be taken away except through a law which is substantively and procedurally fair, just, and reasonable. 6 In another case in 2018, the Court held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, which is recognised under Articles 19 and 21 of the Constitution. [7] The Bill restricts the right to marry before the age of 21 years. The question is whether this restriction for those between the ages of 18 and 21 years meets the standards of reasonable restrictions as explained by courts. In general, for any restriction of fundamental rights by law, there needs to be three criteria: a public purpose, the restriction having a nexus with such purpose, and absence of a less intrusive way to achieve the purpose.[8]
In 2018, the Supreme Court, while reading down Section 377 of the Indian Penal Code, 1860, ruled that consensual sex between consenting adults is a fundamental right under Articles 14, 15, 19 and 21 of the Constitution.[9] If this Bill were passed, it would be legal to have sexual relations but illegal to marry for those between the ages of 18 and 21 years. Note that this is the current status for males.
Annulling a child marriage
The 2006 Act permitted a person married before the minimum age of marriage to apply for annulling the marriage. The Bill increases the minimum age of marriage of females to 21 years. This implies that a person married between 18 and 21 years may also apply for annulling the marriage.
However, in India, persons who attain majority are considered to be eligible for taking their own decisions and are held responsible for their actions (except in certain specified cases, such as persons of unsound mind) under most laws. These include both civil law (such as the Indian Contract Act, 1872) and criminal laws (such as the Juvenile Justice Act, 2015). Allowing a person who married between the age of 18 and 21 years to apply for annulment is inconsistent with this principle.
Table 1 : Minimum age for certain actions in India[10]
Action
Minimum Age