2 February 2022

Battle of Ages: Unpacking ‘Age at Marriage Bill’ on the Site of Higher Education.
Author: Sayali Shankar, Savitribai Phule Pune University.

The recent law raising the age of marriage for women to 21 years has met with a conflicting set of arguments both for and against this course of action. As the proposed law is referred to the Parliamentary Standing Committee on Education, Women, Children, Youth, and Sports, the current Minister for Women and Child Development, Smriti Irani said, “It would ensure uniformity across all religions and communities”. The amendment is known as the Prohibition of Child Marriage (amendment) bill 2021. Although the bill has been propagated as a measure to provide equal rights to men and women to enter matrimony, many members of parliament from the opposition have demanded greater scrutiny for the same.

Overall the National Family Health Survey (NFHS) 5 report (2019–20) revealed that the percentage of women between the ages of 20 and 24 years who were married before 18 years of age was 23.3%, whereas NFHS 4 (2015-16) stated the percentage to be around 26.8%. Similarly, percentage of men between the ages of 25 and 29 years who were married before 21 years of age was 17.7% (NFHS 5) as of 2019-20; recorded as 20.3% in the NFHS 4 report of 2015-16. Although there seems to be a decline in the overall number, one cannot deny that the problem of girls being forced to marry “too soon” continues to be persistent. While discussing her role in the deliberations with the task force (put together to engage with various civil organizations to discuss this bill), Professor Mary John suggests that more than 56% of women in the age group of 20 to 24 years marry before the age of 21 years as per the NFHS 4 report. She states that this data is underestimated, and one needs to contemplate the consequence of criminalizing the majority of women from an entire generation as change in merely one law will not lead to a change in such trends.

What is the new bill?

The objects and reasons mentioned in the bill state that although The Child Marriage Restraint Act, 1929 was replaced by the Prohibition of Child Marriage Act, 2006 (PCMA) to prohibit child marriages, this practice is not completely eradicated. The bill suggests an urgent need to “tackle this societal issue and to bring in reforms.” The bill points out that a claim to progress cannot be made unless “women progress on all fronts including their physical, mental, and reproductive health.” The bill further indicates that enactments relating to age of marriage such as the Indian Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act, 1936; the Muslim Personal Act, 1955; and the Foreign Marriage Act, 1969 have not provided “uniform minimum age of marriage for men and women”. It has been argued in the bill that although gender equality is guaranteed as part of fundamental rights and the prohibition of discrimination on the grounds of sex in the Constitution, the existing laws do not address “gender equality” in marriageable age among men and women. The bill claims that women’s disadvantageous position is reflected in higher education, vocational instruction, attainment of psychological maturity and skill-sets, etc. It identifies women’s entry into the work force and becoming self-dependent before marriage as a critical area. The bill also aims to reduce maternal mortality rates, increase nutrition indicators and access to education.

Minimum age versus Right age:

A podcast conversation of Prof. Mary E John and Noorjehan Safia Niaz with the Hindu (web format) discusses the relevance of the Bill in the present context. John argues that if equality is the critical area of concern for the government, then the minimum age at marriage for both boys and girls should be 18 years. She suggests that government declarations mostly discuss ‘right age’ rather than minimum age. John suggests that claims made regarding decrease in maternal mortality with regards to increase in age at marriage do not hold. Drawing from her previous work on child marriage, John suggests that age alone plays the least significant role in decreasing maternal mortality rate. She also suggests that anaemia, which is a leading cause for maternal mortality rate, does not occur due to lower ages at marriage. John also suggests that states with worse sex ratio have better age at marriage numbers. She argues that the “scientific basis put out by the government does not hold up”. Noorjehan Safia Niaz, who is a co-founder of the Bhartiya Muslim Mahila Andolan, argues that only a particular section of the urban metro cities girls are educated and have moved ahead. She suggests that effective implementation of the law needs to be ensured. The discussion also flags the point that although the law intends to make changes in personal laws as well, Muslim Personal Law is not specifically addressed in the bill. Thus, this bill poses different questions for Muslim women.

John argues that implementation of the PCMA is not happening at the level where communities are conducting illegal child marriages. She suggests that the law is being used where there is a case of ‘elopement’ or ‘love marriages’, and the daughters are at the cusp of attaining majority status. John makes a distinction in identifying groups of people from 18 years of age to 21 years of age as young adults and not children. She suggests that by the “law of the land”, the population from 18 to 21 are young adults. The problem that John articulates suggests that the consequence of increasing the age at marriage to 21 years would mean that authorities would be able to label their relationships as “null and void”. This would leave them in a “legal limbo”. She cites the example of Nepal, where the age at marriage was raised to 20 years for both men and women. John points out that there are a large number of young women in shelter homes because they are in legal limbo.

In this context, there is a greater need to assess the presence of women in higher education spaces. The Department of Women and Gender Studies, Savitribai Phule Pune University and Brunel University have collaborated on a project that intends to further Gender Equality in Higher Education. The next section uses data from a survey designed and conducted for the project. The survey was disseminated across ten participating higher education institutions in the research study in five states of India -Maharashtra, Kerala, Rajasthan, Uttar Pradesh, and Jharkhand. Although the sample is not representative of the state enrolment numbers and overall population, it gives us a clue to understand the present scenario. As John explains while discussing deliberations with the task force, 56% of women marry before the age of 21 years, and the trend seems to be less likely to subside with change in the law. Thus, reading the survey data with the proposed bill would help in understanding the present trends in age at marriage of women on the site of higher education. Why does the age at marriage debate get linked to higher education in the present context, when in the past it was strongly limited to the rate of maternal mortality and population control? Does attaining higher education mean women become empowered? Does higher age at marriage translate to employability and lesser dependence on ‘men’ as cited as one of the aims and objectives in the bill?

Reading the survey data.

The data survey conducted across ten institutions across five states for ‘A research study to further Gender Equality in Higher Education’ by SPPU and Brunel University illustrates that out of 2448 recorded survey responses, 3.2 % of students in higher education have responded as married. Ninety-five percent of students have responded as not married. Out of the 79 students that have responded as married, 5 students were in the age bracket of 17 to 20 years, 24 students were in the age bracket of 21 to 24 years, and 50 students were older than 25 years of age at the time of the survey. Seventy-two percent of the students who have responded as married were female whereas twenty-nine percent of students were males.

A preliminary analysis of the survey data suggests that a very small percentage of the sample has responded as ‘married’. The tenth All India Survey on Higher Education (AISHE) Report states that female enrolment in Higher education has been recorded as 49%. In terms of overall Gender parity, close to half of the total students enrolled have been recorded as females. The female labour force participation constitutes of 18.6% (before pandemic 2018-19, Periodic Labour Force Survey conducted by the Ministry of Statistics and Implementation), whereas the male labour force participation is 55.6%. The gap seems to be in the translation of higher education to employability for female students. Statistics indicate that close to half of the student population are recorded as female in the national enrolment numbers, so clearly women are present in higher education spaces. As John suggests, the translation of education to employment opportunity is not entirely possible with a change in just this one law of increase in age at marriage, as the remainder of the society is structured around patriarchal notions. Increasing the age at marriage will not make malnourished women nourished if the problem of anaemia is not addressed. Similarly, increasing the age at marriage will not ensure access to education or employability if patriarchal structures and systems are not addressed. Even within the amendment bill, one of the ‘problem areas’ it wishes to address is that higher age at marriage will ensure better child rearing, which translates to the responsibility of raising a child being assumed to be that of the mother.

What will the law really, definitely do?

Studies that have been conducted to understand the implementation of PCMA tell us that the law has been implemented in places where there have been instances of transgressive love, labelled as ‘elopement’ or so-called ‘love marriages’. In 2021, the Uttar Pradesh assembly passed a law against religious conversions through marriage, deceit, coercion, or enticement. The bill is known as The Uttar Pradesh Prohibition of Unlawful Religious Conversion Bill, 2021. For conversion of minors and women from Scheduled Castes and Scheduled Tribes community, the punishment will be jail term of 3-10 years with a Rs. 25,000 penalty. There have been various instances of honour killings in the context of inter-caste marriages wherein even if there was legal sanction to individuals marrying from different castes, they suffered from social boycott and violence from the communities involved. In this context, if the PCMA intends to change the age at marriage from 18 to 21 years, then the couples involved in transgressive relationships might face intensive legal and social repercussions, not just through the law but through family and community pressures as well.

Many feminist scholars have identified the space of higher education as one of the potential spaces for the unfolding of inter-caste and inter-religious transgressive love. The mandatory reservation policy in public higher education institutions confirms the presence of diverse student population, which would indicate presence of diverse social groups. Increase in age at marriage would mean more control over the transgressive relations. In this context then, this bill instead of ‘empowering’ women as it claims restricts women’s agency to forge their own relationships. It also curbs the possibility of breaking the customary, cultural, and caste barriers – mainly for choosing a partner. Thus, the endogamy entrenching nature of this law would mean that achieving the egalitarian casteless and gender discrimination free society will remain a less likely possibility.