Reviewing The Views
Taking marriageable age seriously?
Isadora Duncan-the famous American dancer-once commented that "any intelligent woman who reads the marriage contract, and then goes into it, deserves all the consequences." If this statement of Duncan is put in a precisely opposite direction, it would be likely to mean: any immature woman who does not have the capacity to understand the marriage contract does not deserve the consequences. This is exactly the point which is crucial in questioning the foundation of the Child Marriage Restraint Act of 2017 from more a jurisprudential perspective-the perspective that relates to but extends beyond the socio-economic or medico-psychological aspects of child marriage.
Historically, the jurisprudential encounter to combat the child marriage as a "social evil" begins by the enactment of the Child Marriage Restraint Act in 1929 (though before getting this act there was the short stipulation of the minimum age of marriage in Indian Penal Code 1860.) This old Act provided us with the majority age for marriage (by dint of section 4) also has some prescription of punishment for persons who help to conduct the marriage (section 4, 5, 6). Recently, this Act has been replaced by the new the Child Marriage Act, 2017 that brings a significant change in the limits of marriageable age. Despite the fact that this new Act has introduced some positive initiative (such as increasing the amount of compensation and also extending the period of imprisonment under section 5-11), it falls into some criticisms most seriously for the part (section 19) that says about the marriage permission from the Court that falls below the limit of prescribed age.
By virtue of the general reading of the act the power of giving consent is vested solely upon the court, if any particular court thinks that the concerned below aged marriage would be beneficial for the parties then Court can easily give its recommendation imperatively. It, therefore, leads us towards a question that should be answered from an effective legal point of view. Under the Muslim law, marriage is considered to be the civil contract which requires both the parties consenting freely to the wedlock. Interestingly, by virtue of Hindu Marriage Registration Act, 2012, every Hindu marriage is directed to be registered, for such registration under this Act that is thought play a role in safeguarding the Hindu women's position in marriage (section 3). This point makes a way of understanding the Hindu marriage as a contract that is formed between two free and sound minds (it is important in this respect to note that India has already declared marriage for the Hindu as a civil contract).
In this modern era, at least literally, every person after passing a prescribed age is free to exercise freedom, liberty and rationality by using her own mind and at the same time it is really highly contrary to expect any system where the concerned person cannot put her own choices in deciding vital issues such as marriage and so on. It seems that below the majority age one is not that much able to exercise one's rationality and freedom.
In terms of marriageable age, it is worthwhile to reconsider the efficacy of the CMRA, 1929 the provisions of which have been "further improved" in the recently enacted Indian law. In India, the Prohibition of Child Marriage Act, 2006 was enacted to make it stringent not only by keeping the limit of marriageable age unchanged but also by changing the legal status of child marriage. According to the Act, the marriage below the prescribed age is no more valid as in the case of Bangladesh, instead, such marriage is now considered as voidable at the option of the concerned party whose age in question. The use of the term "prohibition" in the name of the Act speaks a lot about how India is focusing more on the aspects of ensuring the rational exercise of choice in forming a martial bond.
What is missing in the argument as used by Rebeka Momin (the chief of the parliamentary standing committee on women and children affairs ministry) who defended the CMRA, 2017 by saying that the special circumstances as unavoidable for considering "socio-economic reality'' especially in rural areas? Do the words of Duncan suggest that such argument seems to put the parties to the marriage, especially the women to accept the consequences which they do not deserve? If the answer is likely to be in affirmative, then such argument should only be encountered by the point that state is not only bound to give freedom (here it is freedom of getting married), but also to ensure the rational exercise of such freedom.
Ahona Ibrahim Lima is studying Law at Jahangirnagar University.