The Government has listed its proposal to raise the age of marriage for women to 21. The move comes within days of the Union Cabinet approving the proposal which is based on the recommendations of a task force constituted last year.
Committee for this law
In the 2020 Budget speech, Finance Minister Nirmala Sitharaman announced that the Government would set up a task force to look into the “age of a girl entering motherhood” to lower maternal mortality rates, improve nutrition levels as well as ensure opportunities for women to pursue higher education and careers. These were also the terms of references for a 10-member panel headed by former Samata Party chief Jaya Jaitly when it was constituted on June 6, 2020.
The panel submitted its report to the PMO and Ministry of Women and Child Development in December 2020 but it has not yet been made public.
What is the minimum age of marriage?
The Hindu Marriage Act, 1955, and the Indian Christian Marriage Act, 1872, prescribe the age of 18 years for the bride and 21 years for the groom. The Muslim Personal Law (Shariat) Application Act, 1937, allows marriage if the boy and the girl have attained puberty.
The Special Marriage Act, 1954, which governs inter-faith marriages also lays down 18 years for women and 21 years for men as the age of marriage.
There is also the Prohibition of Child Marriage Act, 2006, which prohibits marriage below 18 years for women and 21 years for men.
Laws need to be changed for this
First, the age limit in the Prohibition of Child Marriage Act will have to be changed. The government had indicated this will be followed by necessary changes in personal law. The Hindu Marriage Act, the Indian Christian Marriage Act and the Special Marriage Act will also have to be change consequently.
What are the legal issues to change in Muslim law
Many Muslim organisations in Kerala have criticized the Centre’s move to hike the legal age of marriage for women from 18 to 21 years. Muslim League leader E T Mohammad Basheer on Friday introduced an adjournment motion in the Lok Sabha saying the decision was against Muslim personal law and it was another step towards introducing a uniform civil code in the country.
The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate an Islamic law code for Indian Muslims. The British who were at this point in time governing India, were trying to ensure that Indians be ruled according to their own cultural norms. When it came to distinguishing between laws made for the Hindus and those for the Muslims, they laid out the statement that “clear proof of usage will outweigh the written text of the law” in the case of Hindus. For the Muslims on the other hand, the writings in the Quran would be of foremost importance. Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute the State shall not interfere.
Can Muslim law be amended too?
In Shayara Bano v Union of India, the case in which the Supreme Court declared the practice of instant triple talaq as unconstitutional, one of the key questions was whether the Supreme Court could suppress a religious or divine law. The court said all personal laws will have to fall under the constitutional framework and will be subject to public order, morality and health.
Experts suggest the minimum age of marriage can be justified under public health. However, there are several differing verdicts from high courts on this issue.
This year, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man), holding that theirs was a legal marriage under personal law. The HC examined provisions of the Prohibition of Child Marriage Act but held that since the special law does not override personal laws, Muslim law will succeed.
In other cases, the Karnataka and Gujarat High Courts have held that the 2006 special law would override personal laws and have sent the minor girl to a care facility.