The Union Cabinet has cleared a proposal to raise the minimum marriage age for women from 18 to 21.
What is the legal age of marriage?
Marriage and other personal practises for communities are governed by personal laws that specify specific conditions for marriage, including the age of the bride and groom. The Hindu Marriage Act, 1955, for example, establishes a minimum age of 18 for the bride and 21 for the groom. The Indian Christian Marriage Act of 1872 and the Special Marriage Act provide the same provisions.
The attainment of puberty, which is assumed when the bride or groom turns 15, is the criterion for Muslims.
Why is there a minimum age requirement?
To put it another way, the goal is to make child marriage illegal. Special laws, such as the Prohibition of Child Marriage Act of 2006 and the Protection of Children from Sexual Offenses Act of 2012, are used to achieve this goal. Any marriage before the appropriate age is prohibited under the Child Marriage Prevention Act, and offenders of forced child marriages may be prosecuted.
What happens if such marriages are found?
Child marriages are against the law, yet they are not invalid. It may be invalidated at the request of the minor party. This implies that the marriage may only be ruled invalid by a court if the minor party files a petition. This flexibility is maintained to guarantee that the rights of minors, particularly girls, are not revoked in the future in married families.
If a court decides that a juvenile was forced into a marriage by parents or guardians, the Juvenile Justice (Care and Protection of Children) Act takes effect, allowing the minor to be kept in custody until he or she reaches majority and can make an informed choice about the marriage.
What laws will need to be amended in order to increase the marriage age?
First, the age restriction in the Child Marriage Prohibition Act must be altered. This, according to the government, will be followed by required adjustments in personal legislation. As a result, the Hindu Marriage Act, the Indian Christian Marriage Act, and the Special Marriage Act will need to be amended.
Changes in Muslim law, on the other hand, may cause serious legal concerns.
What exactly are these legal concerns?
There is no express provision in the Prohibition of Child Marriage Act that states that it would supersede any other legislation on the subject. In addition, the Prohibition of Child Marriage Act and Muslim law on the minimum age of marriage are clearly at odds in the language of the law.
Although a marriage between a 16-year-old girl who has reached puberty is not regarded as invalid under Muslim law, it would be considered a child marriage under the Prohibition of Child Marriage Act.
In addition, the Supreme Court ruled in a historic 2017 decision that marital rape is legal in the event of a minor wife. Husbands of minor women, unlike husbands of adult women, are not entitled to the blanket exemption provided by Exception 2 to Section 375 of the Indian Penal Code from charges of marital rape.
But, if a marriage is lawful, can the underage wife still file a claim for marital rape?
Experts have pointed out that there is a gap in the legislation that has to be addressed.
Is it possible to change Muslim law as well?
Shariah law is simply codified Muslim law.
One of the fundamental problems in Shayara Bano v Union of India, the case in which the Supreme Court ruled instant triple talaq to be illegal, was whether the Supreme Court could nullify a religious or divine law. According to the court, all personal laws must adhere to the constitutional framework and be subject to public order, morality, and health.
According to experts, the minimum age for marriage may be justified in the interest of public health. However, high courts have issued a number of contradictory decisions on the subject.
So far, what have the courts said?
The Punjab and Haryana High Court awarded protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man) in February this year, ruling that their marriage was legitimate under personal law. The Supreme Court looked at the terms of the Prohibition of Child Marriage Act but decided that since the special law does not supersede personal laws, Muslim law would prevail.
In other instances, the Karnataka and Gujarat High Courts ruled that the 2006 special legislation would take precedence over personal laws, and the minor girl was placed in a care facility.