CONTINUING EVIL OF CHILD MARRIAGE DESPITE PROHIBITION

ABSTRACT

– Surendra Pal Singh1

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Child marriage is a practice which is one of the most serious social maladies affecting the lives and future of India’s youth. The study was done to access the prevalence and incidence of child marriages and analyze the various socio-economic and cultural factors leading to child marriage. Data was collected from 2 selected districts each of the 3 states, namely Rajasthan (Tonk and Jaipur), Uttar Pradesh (Varanasi and Meerut), and Madhya Pradesh (Shajapur and Bhopal) where incidence of child marriage was high according to NFHS-2 data. In the present scenario, though several people interviewed, were aware about the law against child marriages, due to lack of enforcement and political will, they continue to follow the practice. Only when the law is made strict and strong action is taken against those who continue to practice child marriages, can the menace be tackled. Also, all stakeholders, community members, panchayat members, etc. should be sensitized and convinced about the negative impact of child marriage on children, and about protecting the sexual and reproductive health and rights of girls and young women through awareness generation programs.

INTRODUCTION

Child Marriage is one of the burning problems of Indian society. In India, despite amended laws advocating 18 as the legal minimum age at marriage for females, a substantial proportion

i.e. every third adolescent girl in the age group of 15-19 year is married and every second married adolescent girl has given birth to a child. According to the Registrar General of India (RGI) Report (2001) Rajasthan has the highest (40.8) percentage of females ever married among15-19-year-old girls as compared to India (24.9 %) followed by Bihar (39.6 %), Madhya Pradesh (34.1%), Jharkhand (32.9%) and Andhra Pradesh (32.3%). Among the various districts of Rajasthan, Bhilwara is at the top with 61.9 percent.

Child marriage in India has been practiced for centuries, with children married off before their physical and mental maturity. The problem of child marriage in India remains rooted in a complex matrix of religious traditions, social practices, economic factors and deeply rooted prejudices.

1 B.B.A.LL.B., V Sem., Indore Institute of Law

Regardless of its roots, child marriage constitutes a gross violation of human rights, leaving physical, psychologicaland emotional scars for life. Sexual activity starts soon after marriage, and pregnancy and childbirth at an early age can lead to maternal as well as infant mortality. Moreover, women who marry younger are more likely to experience domestic violence within the home.

AIM & PURPOSE

To study the socio-economic conditions of the child family, to identify the factors influence the child marriages and to examine the implications of the child marriage. To analyze constitutional and legal measures against child marriage and their implementation. Further in order to analyze the child marriage law in India with special reference to Hindu Law, various questions are required to be answered, such as:

1. Why a child marriage exist in India?

2. Do the Hindu law permit child marriage?

3. If a child marriage gets solemnized then whether such marriage can be declared void or invalid by the child marriage law in India?

4. Why does the child marriage declare a child marriage to be voidable and why not void?

5. Which is the area of conflict between child marriage law and other personal laws in India?

6. Does the child marriage Law actually prohibits child marriage in India?

7. Why has the legal system failed to prevent this practice? What are the loopholes of the child marriage law in India?

RESEARCH METHODOLOGY

The present study is analysis based on the secondary data, covering various issues like poverty, domestic violence, poor understanding, their health problems, level of management and their living standard of the wedded girl children.

CONCEPT OF CHILD MARRIAGE:

Birth, marriage and death are the standard trio of key events in most people’s lives but only one marriage is a matter of choice.

The right to exercise that choice was recognized as a principle of law even in roman times and has long been established in international human rights instruments. Yet many girls and a smaller number of boys, enter marriage without any chance of exercising their right to choose. Some are forced into marriage at a very early age.

Others are simply too young to make an informed decision about their marriage partner or about the implications of marriage itself. They may have given what passes for ‘consent’ in the eyes of custom or the law, but in reality, consent to their binding union has been made by others on their behalf.

The assumption is that once a girl is married, she has become a woman even if she is only 12. Equally, where a boy is made to marry, he is now a man and must put away childish things. While the age of marriage is generally on the rise, early marriage – marriage of children and adolescents below the age of 18 – is still widely practiced and this practice is known as child marriage. Child/Early marriage refers to any marriage of a child younger than 18 years old, in accordance to Article 1 of the Convention on the Rights of the Child.

While child marriage affects both sexes, girls are disproportionately affected as they are the majorityofthe victims. Their overalldevelopment is compromised, leaving themsociallyisolated with little education, skills and opportunities for employment and self-realization. This leaves child brides more vulnerable to poverty, a consequence of child marriage as well as a cause.

While child marriage takes many different forms and has various causes, one issue is paramount. Whether it happens to a girl or a boy, early marriage is a violation of human rights. The right to free and full consent to a marriage is recognized in the 1948 Universal Declaration of Human Rights (UDHR) and in many subsequent human rights instruments – consent that cannot be ‘free and full’ when at least one partner is very immature.

For both girls and boys, early marriage has profound physical, intellectual, psychological and emotional impacts, cutting off educational opportunity and chances of personal growth. For girls, in addition, it will almost certainly mean premature pregnancy and childbearing, and is likely to lead to a lifetime of domestic and sexual subservience over which they have no control.

HISTORY OF CHILD MARRIAGE:

As per the Hindu philosophy, marriage is not just a process of coming together of the individuals but it is also a holy bond and a commitment which lasts a lifetime. Even the holy scriptures of the Vedas the sacred Hindu texts suggest that an individual should enter the phase of grihasta ” household” after his or her student life.

Thus, it can be said that marriage is almost a mandatory custom in the life of all the Hindus. According to the philosophy of the Vedas, there is a restriction on child marriage. The age of marriage for a boy is 25 years or more and that of a girl is 18 years or more.

From the middle Age to the present day the custom of child marriage against Vedas persists in India. There are many reasons to believe that this custom actually originated in the medieval time when the political climate was unstable and law and order was not yet fixed on the national level.Arbitrary powers were concentrated in the hands ofa hierarchy led by a despotic monarch. The predatory arsenic feudal lords and prince lings of arsenic origins who ruled all over India in the middle ages were a source of a constant threat. Hence parents would seek to get over with the responsibilities of their daughters by getting them married very young.

However, fromMiddleAge, as states and government developed, the politicalsystem elaborated and modified the Indian society gradually. It transformed the lifestyle and opinion of it’s people from a simple to more complex form, restricting significantly the notion of liberty. Women lost their rights and had to obey rules and respect the code behavior. They were now subject to family discipline and the honor of their clan. Since young women were considered irresponsible and irrational in love, parents married them early before they got caught into any scandal. Though, age at which the girl was to be married differed and it was rare for girls younger than 12 to be married in antiquity.

Nevertheless, girl brides became younger towards the medieval period, and it became increasingly common for girls as young as 6 or 8 to be married as Indian society. The prime concern of negotiating the marriage was to find out the compatibility between the two families. It was believed during those times that if two persons know each other right from childhood,it enhances understanding and affection. Hence parents decided on the marriages of their children at a very early age although the daughter stayed with her parents until she attained the age of puberty.

QUANTITATIVE DATA OF CHILD MARRIAGE IN INDIA:

Child Marriages continue to be a fairly widespread social evil in India. In a study carried out between the years 1998 to 1999 on women aged15-19 it was found that 33.8% were currently married or in a union. This showed that child marriage was far more prevalent amongst girls and this highlighted the gender dimension of the problem.

The National Family Health Survey of 2005- 2006 (NFHS-3) carried out in twenty-nine states confirmed that 45% of women currently aged 20-24 years were married before the age of eighteen years. The percentage was much higher in rural areas (58.5%) than in urban areas (27.9%) and exceeded 50% in eight states.

The percentage of women aged 20-24, married by the time they are 18, stood at 61.2% in Jharkhand followed by 60.3 % in Bihar, 57.1% in Rajasthan, 54.7% in AP, and 53% in MP, UP and West Bengal. The NFHS-3 findings further revealed that 16% of women aged 15-19 were already mothers or pregnant at the time of the survey. It was also found that more than half of Indian women were married before the legal minimum age of 18 compared to 16% of men aged 20-49 who were married by age 18. Though NFHS-3 did not compile data on girls who were married below the age of 15, the 2001 census of India had revealed that 300,000 girls under 15 had given birth to at least one child.

Further in a survey conducted bythe Government of Rajasthan in 1993 it was found that 56% girls had been forced into marriage before the age of 15 and of these 7% were married before they were 10.6 A second survey conducted in 1998 in the State of MP found that 14 % girls were married between the ages of 10 and 14. 7 In 2006 the Hindustan Times reported that 57% of girls in India are married off before they are 18 as per the International Centre for Research on Women.

SOCIO-ECONOMIC CAUSE OF CHILD MARRIAGE:

Child Marriage in India has been practiced for centuries, with children married off before their physical and mental maturity. The problem of Child Marriage in India remains rooted in a complex matrix of religious traditions, social practices, economic factors and deeply rooted prejudices. Regardless ofits roots, child marriage constitutes a gross violation of human rights, leaving physical, psychological and emotional scars for life.

Sexual activity starts soon after marriage and pregnancy and child birth at an early age can lead to maternal as well as infant mortality. Moreover, women who marry younger are more likely to experience domestic violence within the home. The phenomenon of Child Marriage can be attributed to a variety of reasons. The chief amongst these reasons is poverty and culture, tradition and values based on patriarchal norms.

These norms do not consider that in actuality, Child Marriage is a violation of human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty. Young married girls are a unique, though often invisible, group. Required to perform heavy amounts of domestic work, under pressure to demonstrate fertility, and responsible for raising children while still children themselves, married girls and child mothers face constrained decision making and reduced life choices.

Boys are also affected by child marriage but the issue impacts girls in far larger numbers and with more intensity.Where a girl lives with a man and takes on the role of caregiver for him, the assumption is often that she has become an adult woman, even if she has not yet reached the age of 18. The marriage of a minor girl often takes place because ofthe poverty and indebtedness of her family. Dowry becomes an additional reason, which weighs even more heavily on poorer families.

The general demand for younger brides also creates an incentive for these families to marry the girl child as early as possible to avoid high dowry payments for older girls. The girl in our patriarchal set up is believed to be parkithepan (somebody’s property) and a burden. These beliefs lead parents to marry the girl child. In doing so, they are of course relieving themselves of the ‘burden’ of looking after the child. The girls are considered to be a liability as they are not seen as individuals who can contribute productively to the family.

Unfortunately, the patriarchal mindset is so strong that the girl has no say in decision making. Texts like Manu Smirti which state that the father or the brother, who has not married his daughter or the sister who has attained puberty will go to hell are sometimes quoted to justify child marriage. Child marriages are also an easy way out for parents who want their daughters to obey and accept their choice of a husband for them. There is also a belief that child marriage is a protection for the girls against unwanted masculine attention or promiscuity.

In a society which puts a high premium on the patriarchal values of virginity and chastity of girls are married off as soon as possible. Furthermore, securing the girl economically and socially for the future has been put forth as a reason for early marriage. The institution of marriage in communities or societies can be used to serve or strengthen economic and social ties between different families and even communities.

Also, a young girl may be offered to a family in order to improve the financial and social standing of the girl’s family. Other reasons that have been listed for the high prevalence of child marriages in India are lack of education and knowledge, shortcomings in the law, and the lack of will and action on part of the administration.

CONSEQUENCES OF CHILD MARRIAGES:

As stated above, child marriage is a grave violation of the rights of the child depriving her of opportunities and facilities to develop in a healthy manner to obtain education and to lead alife of freedom and dignity. It deprives the young girl of capabilities, opportunities anddecision- making powers and stands in the way of her social and personal development.Young brides face the risk of sexual and reproductive ill health because of their exposure toearly sexual activity and pregnancy.

Complications and mortality are common during childbirth for young pregnant girls. Girls who come from poor backgrounds and who are often married at an early age have little or no access to health care services. Risks associated with young pregnancyand childbearing include “an increased risk of premature labor, complications during delivery, low birthweight, and a higher chance that the newborn will not survive.”

Young mothers under age 15 are five times more likely to die than women in their twenties due to complications including hemorrhage, sepsis, preeclampsia, eclampsia and obstructed labor. Maternal mortality amongst adolescent girls is estimated to be two to five times higher than adult women.Maternal mortality amongst girls aged 15-19 years is about three times higher. Young women also suffer from a high risk of maternal morbidity. It has been found that for “every woman who dies in childbirth, thirty more suffer injuries, infections and disabilities, which usually go untreated and some of which are lifelong”.

Research further indicates that the babies of mothers below the age of 18 tend to have higher rates of child morbidity and mortality. “Infants of mothers aged younger than 18 years have a 60 per cent greater chance of dying in the first year of life than those of mothers aged 19 years or older [UNICEF 2007].” Babies are born premature or underweight or young mothers simply lack parenting skills and decision-making powers.

Secondly, young girls face the risk of infection with sexually transmitted diseases including HIV. Young brides who run awayfrom early marriages mayend up as sex workers or eventually resort to use sex work as a way of earning additional income. Young brides also run the risk of catching diseases from their respective spouses, as older husbands often engage in sexual relations with other women outside the marriage. Young married girls do not have bargaining power in the marriage and therefore cannot negotiate safe sex and are deemed vulnerable.

It has also been found that young girls are physiologically more prone to contracting HIV/ AIDS, as her vagina is not well lined with protective cells and her cervix may be more easily eroded. An analysis of the HIV epidemic shows that “the prevalence of HIV infection is highest in women aged 15-24 and peaks in men between five to ten years later.” Women also undergo sexual violence in marriage and young girls are particularly vulnerable.

In a study carried out in Calcutta in 1997 where half the women interviewed were married at or below the age of 15, with the youngest being married at 7 years old, findings revealed that this age group had “one of the highest rates of vulnerability to sexual violence in marriage, second only to those whose dowry had not beenpaid. The women interviewed said they had sexual intercourse before menstruation had started, that sex was early and very painful, and “many still continued to be forced into sexual activity by their husbands.”

Additionally, the young girls “had made their husbands aware of their unwillingness to have sex or of pain during sex, but in 80 per cent of these cases the rapes continued.” As husbands are often much older than their brides, girl brides are likely to be widowed at an early age. Achild bride who is widowed can suffer discrimination including loss of status and they are often denied property rights, and other rights. Child widows have little or no education or other skills to be able to take care of themselves. At a 1994 Conference in Bangalore, India, participants told of being married at five and six years old, widowed a few years later, and rejected by their in-laws and their own families.

These widows are, quite simply, left with no resources and nowhere to go. Young girls who are married early usually stop going to school. Giving an education to a girl is perceived by both the girl’s and boy’s families unnecessary for becoming a good wife or a mother, if not a deterrent. Those who have a choice are eventually forced to drop out of school because they are forced to assume the responsibility of doing domestic chores and starting a family etc.

The loss of adolescence, the forced sexual relations, and the denial of freedom and personal development attendant on early marriage have profound psychosocial and emotional consequences.Researchers on child marriage in Rajasthan and Madhya Pradesh state that young married girls suffered more than boys due to the abovementioned consequences of Child Marriage.

CONCLUSION

From the foregoing analysis of facts, information’s, laws, case laws relating to child marriages, it has evidently become clear that in spite of having a law prohibiting child marriage, the child marriages in India are still prevalent and are held to be a valid marriage in India. My opinion is that the marriage in violation of age rule should be made void. I am of view that the absence of the provisions invalidating the marriage is the main hurdle in the way of effective implementation of the Act.

I admit the limitations of the judiciary when there are clear statutory provisions. According to the rules of interpretation, if the words are clear and unambiguous the court has to adopt that clear meaning. In such circumstances the judge has no discretion to change the law, in tune with the social changes. He has no duty to fill the ‘caususomissus’.

Hence, I strongly suggest to amend this provision so as to make the marriage void if the age rule is violated. The government needs to take steps to make people more aware about the ill effects of child marriage. Not only in the rural areas, awareness has to be raised throughout the country so that this evil practice can be prevented. The only way to stop this practice is by raising awareness amongst the people. It is admitted that the laws related to prevention of Child Marriage that are in force at present are weak and there are many loopholes and discrepancies in the laws. Certain amendments need to be made to the existing legislations. First and foremost, child marriages should be made completely void and severe punishment should be given to persons solemnizing or taking any sort of part in such marriages.

I would like to mention that that time is ripe for making void the marriage solemnized in violation of the age rule. In support of my view I would like to cite the report ofthe Committee on Status of Women, which pointed out in its Report that the effective approach to curb this problem is to render it void. It also remarked.

At last I would like to add that, it must be kept in mind that the mere passage of any law will not be able to achieve its objectives unless it is meaningfully strengthened by other support mechanisms.

A strong political will is a condition precedent which can be created only through democratic processes and pressures. All the members of the society including academicians, researchers, activists in various fields need to work together relentlessly in order to ensure justice for young girls.

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