On August 12, there is a news item in Times of India (Page 1,14) that a division bench of Delhi High Court has held that violating the minimum marriageable age clause of the Hindu Marriage Act does not make the marriage itself null and void.
Interestingly, this creates a conflict of two principles of justice. The minimum age for marriage was originally fixed to discourage child marriages. Child marriage and early consummation of such marriages are detrimental to women’s education and health among other things. Later population control was the additional motivation for legal ban on early marriage.
Requirement for minimum age 18 for the bride (and 21 for the groom) was often used by a girl’s parents to seek her custody and to punish her husband under kidnapping and rape charges. If minimum age is not applied, family and community heads marry off girls at a young age. If it is strictly applied, the choice and voice of the teens are denied. Family heads see to it that they have the girl’s custody or the state does. They then get time and opportunity to pressurize the girl to marry a man of their choice.
The court has upheld the validity of the marriage. A hundred years ago it was the sanctity of the marriage that was held up under the Age of Consent Bill.
The first recorded case on the issue of girl’s health and sexuality was perhaps that of Phulmani Dasi in the last decade of the 19th century. She was a ten year old girl, who was found dead in the morning after her considerably older husband had sex with her. This episode became the focal point of social reformer Behramjee Malbari’s campaign for raising the legal age of wives for consummation of marriage to twelve. The orthodox groups and individuals, including the radical nationalist leader Bal Gangadhar Tilak, vehemently criticized and opposed the proposed change. The educated orthodox, the revivalists and others carried out a campaign against the proposal. Their main argument against the proposed law was that home and marriage were sacrosanct and the British Government should not be allowed to interfere in these matters. Despite wide protests, the British passed the new law, called the Age of Consent Bill, in 1896. Under this law, a husband could be held guilty of its violation and jailed. However, the marriage itself remained intact. In any case, no one is known to have been prosecuted under this law.
The present situation is more complicated than that and we need to relook at issues such as sexual attraction during adolescence, notions of morality, parental control and rights of youth to be in mixed groups, gender relations in romantic love and the extent of intervention by the state in such matters.
By: Sonal Shukla and Pradnya Sawargaokar