Recently the Prohibition of Child Marriages Amendment Bill was introduced before the Lok Sabha. The bill in question seeks to amend the Prohibition of Child Marriages Act 2006 by increasing the legal age of women to marry, from 18 years to 21 years, at par with the legal age of men at 21 years. It intends to add a non-obstante clause which states “notwithstanding anything contrary or inconsistent therewith contained in the Indian Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act, 1936; the Muslim Personal Law (Shariat) Application Act, 1937, the Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969, or any other custom or usage or practice in relation to marriage, under any other law for the time being in force”. If enacted, the proposed bill would have an overriding effect on the existing marriage personal laws in the country. It is to be noted that Muslim Personal Law in India allows marriage upon the onset of puberty, rather than at the age of majority prescribed in other laws.
As per the official Objects and Statement of Reasons, the Government has stated that while the Constitution mandates gender equality and the absence of gender-based discrimination under the Fundamental Rights, existing laws do not effectively seek to enforce the constitutional mandates. It can be seen from a perspective that the bill may be the first indication towards a Uniform Civil Code (indicative of amendment of age of majority). The bill has been presented to a Standing Committee for further scrutiny.
Members of the Opposition and lawyers have voiced opposition to the bill citing that the bill fails to address the societal problems concerning child marriage. It has been opposed because the legislation violates the right of a person of age to make their own decisions. Given the above, this article seeks to examine the feasibility of the Prohibition of Child Marriages Amendment Bill 2021 (hereafter referred to as the Bill) and its constitutionality in light of a person’s right to exercise legal capacity and make decisions.
As per the Indian Majority Act 1875, the recognized age of majority of all persons stands at 18 years of age. The age of 18 years has become ingrained in all facets of life as it deems persons 18 and above to have the mental maturity to make rational decisions. As per present laws, any person 18 years and above has the right to hold a driving license, the right to vote, and enter into contractual agreements.
The age of majority has a significant relevance concerning the age of consensual sexual intercourse. The 2013 Criminal Law Amendment Act amended the age of consent, raising it from 16 years to 18 years. Courts have upheld the age of consent at 18 years. This is evident in the ruling in Independent Thought V. Union Of India. The court held that sexual intercourse with a woman younger than 18 years constituted rape regardless of consent or marital status.
Furthermore, the age of majority also affects criminal liability. The law has recognized that a minor is incapable of forming mens rea. As per Section 84 of the IPC, a minor younger than seven years is not liable for any criminal act, assuming dox incapax. The Juvenile Justice Act 2015 defines a child as younger than 18 years. As per the JJ Act, where any person younger than 16 years commits an offense, the Juvenile Justice Board may choose to admonish the child, order the child to be sent for counseling, perform community service, etc. The juvenile is between 16 to 18 years and has committed a heinous offense. A determination must be made if the juvenile had the mens rea for the same and maturity to understand the nature of the crime committed. Thus it can be seen that by default, a minor cannot be said to have mens rea, unlike that of a person of age.
Evolution Of Age Of Majority Laws Relating To Marriage
To better understand the nature of the Bill, it is essential to take note of the age of majority and marriage, along with its evolution.
The origin of marriage laws and age of consent to marry can be seen from the colonial era. Before the British colonization of India, there was no clear law or mandate as to the legal age to marry. Given this, marriages took place as per the customs of persons.
The Indian Penal Code (IPC) made the earliest codifications of age of consent in its first form. It mandated that sexual intercourse between the husband and wife, younger than ten years constituted an offense. In 1891, the Age of Consent Act was passed, raising the age of consent from 10 years to 12 years of age.
In 1929, the Child Marriage Restraint Act (also known as the Sharda Act) was passed, which in its original form maintained that the age of marriage was 14 years for girls and 18 years for boys. The Act was further amended in 1978, increasing the age of marriage to 18 years for girls and 21 years for boys. The 1929 Act applied to all citizens of the Indian subcontinent and eventually all citizens of India. The Act penalized marriage of an adult male of 21 years and above with a minor child, mandating three months imprisonment with a fine. If the male was between 18 and 21 years old, the sentence was 15 days and fine.
The 1955 Hindu Marriage Act also addressed the legal age of marriage. As per Section 5, the Act stipulated that for valid solemnization of marriage, the legal age was 18 and 21 years for women and men, respectively. It is to be noted that the age of majority under the Hindu Marriage Act was raised from 15 years and 18 years to the current form by the 1978 Amendment Act.
The most recent legislation addressing the age of majority was the Prohibition of Child Marriages Act 2006. The Act currently defines a child as below 18 (a woman) and 21 (a male). Said Act while Said act, while penalizing child marriages as an offense, fails to illegalize the practice entirely. This is because it stipulates that such marriages are not valid but voidable at the option of the party who was a minor at the time of marriage.
Marriage As A Fundamental Right
Marriage as a fundamental right has not been expressly recognized under the Indian Constitution. As a result, marriage as a fundamental right has come from judicial precedents. In several cases, courts have stated that the right to marry is a fundamental right under the aegis of Article 21.
Reference may be made to Lata Singh V. State Of UP, where the apex court held that the right to marry fell under the ambit of Article 21. In Paragraph 17, it has noted that a person has the right to marry whoever they like upon becoming a major.
In 2014, the court took suo moto cognizance of gang rape of a woman on orders of the village court. Reference can be made to Paragraph 14, where the court opined “an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.“
Furthermore, in Shafin Jahan V. Asokan KM, in Paragraph 21, the court held “the right to marry a person of one’s own choice was integral to Article 21 of the Constitution“. It can be seen that not only is marriage a fundamental right as under the Lata Singh judgment, but it is also of being able to decide to choose a partner.
Right To Be Able To Make Decisions
Given the subject matter of this paper, it is pertinent to understand the ability of a person to be able to choose and make decisions of their own free will. As a general principle of law, any person who is of age and is of sound mind will be presumed to be able to make rational decisions and will be able to exercise their right to legal capacity. This right to choose and exercise legal capacity extends to all facets of life, including voting and deciding, the right to enter into a contract, etc.
In Common Cause (Registered Society) V. Union Of India. Here, the court opined in Paragraph 4 that an individual’s autonomy hinged on the ability to decide what to wear, eat, speak or drink, or take decisions on matters of consequence to an individual’s daily life.
The right to decide also extends to marriage and choosing of partners. The apex court has noted that determining also includes choosing whom to love and partner with, in the above case. The right of choice has been explicitly stated as a fundamental right, in many cases, as stated earlier. As earlier mentioned, the Shafin Jahan judgment has recognized the freedom of choice concerning marriage.
It has been established thus that the right to make decisions and consent is a fundamental right under Article 21. It can be argued that the proposed bill to raise the age of marriage of women to 21 years by the Parliament would violate the right to choose under Article 21. It gives the impression that even a consenting woman of age of majority would not have the capacity to decide to undertake marriage.
Reference may be made to Ashok Kumar Todi V. Kishwhar Jahan. The judiciary opined that law enforcement couldn’t interfere in marriage when a male and female married willingly and were of age of majority. It is to be stated that should the Prohibition of Child Marriages Bill 2021 become law, it would be an encroachment of the law upon individuals’ taking the decisions to marry, thus contradicting the above judgment.
Violation Of The Right To Live Together
The Prohibition of Child Marriages Bill merely seeks to bar persons under 21 (both male and female) from marrying. It doesn’t address the aspect of live-in relationships. However, interpretation reveals that even live-in relations will be affected.
The term “live-in relationship” has not been expressly defined. Interpretation comes from Section 2(d) of the Domestic Violence Act 2005, which prescribes a relationship between 2 persons “in the nature of marriage.”
The judiciary has recognized the validity of live-in relationships. In Khushboo V. Kanniammal, the apex court stated that it wasn’t illegal for a man and woman to live together without being married.
Furthermore, the essential conditions to be fulfilled of a live-in relationship were that the couple had to be of a legal age to marry and must have voluntarily cohabited, giving the impression of marriage as held in D Veluswamy V. D Patchiammal
The Veluswamy case stated that a primary criterion was that the parties have to marry legally. While the age currently stands at 18 and 21 years for women and men respectively, if the Amendment Bill passes, the age of majority for women would also become 21. Interpreting the Veluswamy case, it stands to reason that if the bill is passed, the woman would have to be not less than 21 years of age, even for merely living together in a legally recognized live-in relationship. This deprives her of her choice to lawfully stay with her partner despite attaining the age of majority.
However, it may also be stated that if a woman of age of majority exercises her right to consent to live with another person, she can do so. This is despite the action not being recognized as a legal live-in relationship, subject to the Amendment Bill being passed.
From the judicial precedents cited and the nature of the topic, it can be observed that the Prohibition of Child Marriages Amendment Bill 2021, by increasing the age of marriage of women from 18 to 21, would be unconstitutional. This is due to the bill violating Article 21 by removing the legal capacity of a woman who is of age to make choices and decisions. Said choices extend to the right to marry, the right to choose a partner, and the right to choose to be in a live-in relationship. In various cases referred above, courts have maintained that the right to choose and make a person’s decisions is a Fundamental Right under Article 21.
A loophole exists in the bill in that if the amendment is passed, then a woman aged 18 years can consent to cohabit with another person, despite it not being recognized by the law.
The bill assumes that the State can determine and interfere when an adult of sound mind and body can consent towards marriage. In other facets of society such as voting, age of consent, driving, the Indian State has chosen not to interfere. Furthermore, given the non-obstante clause, it overrides personal laws followed by society. If the bill passes, it may be challenged in the courts concerning infringement on religious freedom and practice.
Furthermore, to address the practicality of the bill, it has been stated by members of the Opposition and jurists that the legislation fails to address the problems of child marriage in society and gender inequality. This comes from the fact that child marriages are predominantly a cause of poverty, illiteracy, and lack of education. It is advocated that the Government must continue to improve access to education and conduct awareness programs to address child marriages. Given the above, it is interpreted by this student that the Prohibition of Child Marriages Amendment Bill 2021 is not only unconstitutional but also a toothless law as it does not have any effect on the aims and objectives stated by the Government.