Child marriage of girls is a comparatively neglected social problem in India and is seldom given attention by policy makers, law interpreters, law enforcement machinery, and academicians. Recently, a few non-governmental organizations have started addressing the issue more seriously. Some efforts are being made by the National Commission for Women and the National Commission for Human Rights.
Child marriage affects both girls and boys and deprives children of their childhood. However, girls are affected disproportionately. Not only are they far more likely than boys to be married early, but the practice also has more dire consequences for girls than for boys. Often these girls are married to older men. A sexual relationship between the spouses that is inevitable after the marriage affects the health of young girls, particularly their reproductive health as their bodies are not physically mature to accept the burden of child-bearing. Further, they often do not have information about sex and childbirth.
Once married they are responsible for carrying out domestic chores of which they have little knowledge. Often they suffer from domestic violence and sexual abuse. Due to their young age, they are incapable of negotiating with their life partners on all counts including sex. They are likely to become widows at a younger age. Further, as a result of child marriages, girls are deprived of their educational opportunities. Lack of education takes away their future opportunities of gainful employment as well as of personality development and, therefore, the happiness of life. Thus, child marriage makes them slaves. In spite of having such severe long-term consequences on the life of young girls, the practice of child marriage is still justified in the name of culture, religion, and morality.
Millions of girls are married off at an early age not only without their consent but also even against their wishes. There is not enough awareness about the adverse impact of child marriage on the lives of young girls. The issue of child marriage is seldom examined from the human rights perspective. Social scientists have by and large addressed this issue from the demographic, population, and health perspectives. It is difficult for the providers of health care to deal with the socially contentious issue of child marriage, as they have not been trained to handle the problem. Legal professionals have not paid enough attention to the issue. Against this background, the problem of child marriage in India is analysed here from the human rights perspective and by adopting a feminist method.
Critical analysis of any social problem from a human rights perspective is a challenge, particularly in the developing countries and that too when it is connected to women’s human rights. Arguments against universal application of human rights, particularly women’s human rights, are raised in the name of religion, culture, social values, and morality. The basis of such arguments lies in the patriarchal social structure and many times it takes the form of paternalistic control over women with an emphasis on the need to provide protection to women.
The Term ‘Child Marriage’
The term ‘child marriage’—that is marriage below the age of eighteen years—is used here for a number of reasons, the first being to emphasize the paradox in the prevalent practice of marrying young girls. Second, in India legislators, social workers, and law professionals refer to the practice by the term ‘child marriage’. Third, a girl below the age of eighteen years is treated as a ‘child’ for the purpose of marriage according to CMRA. The Indian Majority Act, 1875, also defines the age of majority as eighteen years for the purpose of civil matters. Even the Constitution of India gives the right to vote to a person who is eighteen years of age. So is the case while entering into a valid contract under the Indian Contract Act, 1872. Therefore, in the Indian context ‘child marriage’ is the proper term. Even the United Nations’ Convention on the Right of the Child defines ‘child’ as a person below the age of eighteen years.
Other terms used by the international community for child marriage are ‘early marriage’ or ‘forced marriage’. These terms have limitations. The term ‘early could be very subjective. Early in comparison to what and for whom are the basic questions that could have different answers in different contexts. Early marriage is also being defined as the marriage of a girl before or during adolescence. However, in developing countries like India, rarely is there a stage of carefree adolescence in the life of girls. They are forced to step from childhood into womanhood directly.
All child marriages are forced marriages. But all forced marriages are not necessarily child marriages. The force implies that there is a use of power against the wish of an individual and it is against the person’s free consent. In the case of a child marriage, there is no question of consent as the girl child is incapable of giving a valid legal consent due to her incomplete physical and mental growth. And even if she is able to express her wish, she is either not allowed to express it or is forced to act against her wishes. On the other hand, even adults could be forced to enter into a marriage in a country like India where marriages are ‘arranged’ by parents as a norm.
Focus on the Girl Child
Child marriage violates many of the basic rights of children. It involves both girls and boys, but because of the low status of girls, they are usually married off at a much younger age than boys in many countries and too much older men.18 Child marriage has profound physical, psychological, intellectual, and emotional consequences, particularly on girl children, as it cuts off their educational opportunities and chances for personal development.
Based on the view that Virginity’ is essential in a bride, girls are married off at a young age. As a result, these young girls are traumatized by sex and are forced to bear children before their bodies are fully mature. Parents believe that girls are less valuable than boys. They are viewed as economic burdens because it is costly to raise daughters when the money can be better spent on sons, who will take care of the parents in their old age. Moreover, laws and policies allowing for a lower age of child marriage for women stereotype women as child-bearing machines and deny them equal standing with men with respect to their right to consent to marriage. For these reasons, the focus here is on the girl children.
Feminist Method in analysing of Child Marriage
As argued by Ratna Kapur:
Feminist analysis of law examines the role that law plays in the oppression of women and the role that law might play in overcoming that oppression. It attempts to go beyond the mere identification of laws that impact on women, to examine the specific conditions of women and analyses the role of law at different points of interaction—conceptual, institutional or community-based. It is an interdisciplinary approach to understand the complex and contradictory nature of the legal regulation of women.
The feminist legal analysis explores the social, economic, political, and cultural factors that cause and reinforce women’s oppression. It seeks to reveal social structures, institutions, and relations that have made and continue to make women subordinate to men. It examines the particular ways in which the law has been informed by male norms, male experiences, male values, and male dominance. In doing so, it tries to demonstrate the exclusion of women’s experiences from the law and the ways in which law serves to reinforce stereotyped and patriarchal assumptions about women. At the same time, it also explores the extent to which law can be used to improve women’s position.
Precisely for this reason, the practice of child marriage needs to be challenged within the feminist legal analysis. As against the traditional legal method, Katharine Bartlett’s feminist legal method ‘Asking the Woman Question’ as well as Denise Reaume’s conceptual analysis of women’s exclusion from law provides the best support for analysing child marriages from the feminist perspective for many reasons.
For the analysis of any socio-legal issue, a legal method is important because it shapes one’s views of the possibilities for legal practice and reform.
Method organises the appreciation of truth, it determines what counts as evidence and defines what it takes as verification’. However, feminist legal method is more relevant than the traditional legal method as it goes into deeper analysis of the issue from feminist perspectives.
The traditional legal method operates within a highly structured framework, which offers little opportunity for fundamental questioning about the process of defining the issues, selecting relevant principles, and excluding irrelevant ideas. It places a high premium on the predictability, certainty, and fixity of rules. On the other hand, feminist legal methods value rules of flexibility and ability to identify missing points of view.
While using the traditional legal method, lawyers examine the facts, determine what legal principles are relevant, and then apply those principles to the facts. Facts determine which rules are appropriate, and rules determine which facts are relevant. In doing so, traditional lawyers use a full range of methods of legal reasoning—deduction, induction, analogy—and use hypothetical, policy, and other general principles. Feminists, in addition, use other methods by which they attempt to reveal those features of the traditional method that are suppressed or overlooked. They unmask the specific assumptions of class, gender, sexuality, and religion on which the law is often premised and confront the assumption of legal neutrality and objectivity, which often serves to mask these underlying assumptions.
The traditional legal method defines its own boundaries. Questions which are inside the defined boundaries are addressed, but those outside the boundaries are not ‘legal’ issues.
It is structured in such a way that it is inaccessible to a feminist perspective and thus women’s life experiences are not relevant for it. On the other hand, feminist methods expand the traditional notion of legal relevance to be more sensitive to features of a case not reflected in the legal doctrine.
Asking the Woman Question
The feminist legal method, ‘Asking the Woman Question challenges the assumption of gender neutrality of law. The woman question asks about the gender implications of social practice or rule: have women been left out of consideration? If so, in what way and how might that omission be corrected? What difference would it make on corrections? By posing such questions, it challenges those rules and practices that do not take cognizance of women’s experiences, which are different from that of men.
Asking the woman question reveals the ways in which political choices and institutional arrangements contribute to women’s subordination. Without the woman question, differences associated with women are taken for granted. In exposing the hidden effects of laws that do not explicitly discriminate on the basis of sex, the woman question helps to demonstrate how social structures embody norms that implicitly render women different and thereby subordinate. The woman question reveals how the position of women reflects the organization of society. The difference is located in relationships and social institutions and not in women themselves.
Katherine Bartlett explains:
In law, asking the woman question means examining how the law fails to take into account the experiences and values that seem more typical of women than of men, for whatever reason, or how existing legal standards and concepts might disadvantage women. The question assumes that some features of the law may not be only non-neutral in a general sense, but also ‘male’ in a specific sense. The purpose of woman the question to expose those features and how they operate, and to suggest how they might be corrected.
‘Asking the Woman Question requires a search for gender bias and a decision in the case that is defensible in the light of that bias. It demands, in other words, special attention to a set of interests and concerns that otherwise may be, and historically have been, overlooked. The substance of asking the woman question lies in what it seeks to uncover: disadvantage based upon gender.
In the context of child marriage, asking the woman question requires an examination of the gendered conditions that facilitate or enable child marriage and the laws intended to regulate it. It requires attention to the ways in which women’s experiences and interests have been overlooked. When society approves the practice of child marriage of young girls, it fails to recognize the damaging physical, psychological, social, economic, and developmental repercussions on young women. Or when the law does not declare such practice as illegal or leaves many procedural lacunas, it leaves out women’s considerations. Further, an ineffective implementation of CMRA confirms omission of their consideration.
Cultural approval of the practice of child marriage is a clear indication of society’s refusal to take cognizance of its adverse effects on women. The practice of child marriage often victimizes girls and they are the ones who suffer the most. They typically face harmful experiences only because of their biological vulnerability. Only women can become pregnant and young girls can suffer because of their immature bodies. The adverse impact of child marriage on women’s life is either taken for granted, remains unexamined or is justified under the guise of their need of protection from vulnerability and sexual abuse. Similarly, development opportunities, including that of education, are not denied to boys even if they are married off at a young age. Child marriage has different meanings for men and women because of women’s low social status. An obvious reason behind this is to treat women as subordinate to men.
It is argued that societal pressure and cultural values force parents to marry off their young daughters. Why such values are most vehemently employed when the rights of women are at stake? Why are girls deprived of their rights simply because of their sex, in the guise of culture, tradition, or religion? This certainly is not to suggest that there are no cultural considerations or accommodations to be made while dealing with human rights. However, there is a distinction between considering or accommodating cultural customs and using culture as a pretext to deny the integrity and dignity of individuals on the basis of sex. The cultural practice that bridges the basic human rights including the right to life, health, education, enjoyment, non-discrimination, and to live with dignity must be condemned at all times.
Social and cultural values have legally reflected men’s experiences and excluded women from participating in the definition of those values. Women also support such values and the customary practices based on those values because they are not being given free choices. Given their economic and political disempowerment, it is not amazing if they support such traditions. To understand the phenomenon of women’s support one must probe more deeply. Women are made to believe that it is in their interest as well as in the interest of their families to support such tradition. Women support retrograde traditions, but not on the basis of free will or informed choice. They are compelled by circumstances, lacking as they are in independence and decision-making powers. This reflects on how social institutions are built up on patriarchal foundations with a gender bias.
The ‘woman question’ exposes these assumptions. It challenges social endorsement of child marriages. A feminist methodology strives to ensure that society will no longer ignore women’s experiences. Based on women’s experiences, society must be made to understand that such harmful, traditional practice of child marriage needs to be condemned.
Conceptual Analysis of Women’s Exclusion from Law
The social reality of not providing space to women’s experiences or excluding their experiences is also manifested while formulating, applying, or enforcing the law. Denise Reaume’s conceptual analysis of women’s exclusion from the law is of great value in understanding this situation. She argues that legal rule are designed in such a way that they reflect the life experiences interests, and needs of men, to the exclusion of those of women; that key legal concepts ” principles exclude women’s values; that legal reasoning excludes women’s mode of reasoning. This feminist critique of law can be applied at all levels of legal analysis of child marriage-legislative framework, judicial interpretation, and enforcement of rules regarding child marriages.
As put forward by Reaume, the exclusion of women is sometimes explicit and at other times, implicit. Explicit exclusion clearly excludes women in a very obvious form, on the face of the law. The mechanism of exclusion is sometimes legislative, sometimes judicial interpretation. These rules operate explicitly and directly to exclude women. For example, while their husbands are alive women are excluded from the legal guardianship of their children in India. Adultery is an offence under the Indian Penal Code only if committed by a man and allows only the husband of the adulteress’ to prosecute the man with whom the adultery was committed, but does not allow the wife of that man to prosecute him. Even the judicial decisions have conformed to this legal provision.
Implicit exclusion operates through rules or decisions that are sex-neutral on their face, but which nevertheless assume a male norm. This form of exclusion may be quite deliberate or simply based on unawareness of the different circumstances or conditions of women. I argue in the following pages that enforcement and judicial interpretations of CMRA indicate such implicit exclusion of women’s experiences.
An approach that draws attention to the explicit and implicit exclusion of women can be seen as a more specific example of the woman question. The woman question involves identifying and challenging those elements of the existing legal doctrines that exclude or disadvantage women.
Women’s experiences and perspectives have not been taken into account seriously by Indian society. In other words, women’s experiences, interests, and needs are excluded or ignored explicitly by the society. Legitimacy accorded to the practice of child marriage through social norms, customs, and laws make it clear that the patriarchal social order explicitly prefers to exclude those values that women cherish.
The legal provision regarding the age of the parties to a marriage under CMRA reflects the explicit exclusion of women’s experiences. CMRA prescribes different ages of marriage for girls and boys. The age disparity at marriage between men and women is rooted in stereotyped gender roles and in a patriarchal presumption that a man needs more time to equip himself to support his life and wife. It underscores the presumption of her economic dependency on the husband. Women are allocated the roles of wives and mothers and their identity is neutralized through a broad range of social, cultural, and religious discourses. It is based on the dominant familial ideology and preconceived notion of presumed inequality between man and woman. The legal provision of age reflects and reinforces this dominant familial ideology and the differences that it assigns.
Certain indefensible factors of sexual bias—culturally created conceptions of the relative places of male and female in society—combined with other less indefensible reasons—more rapid physical development among females than among males—produce different rules for males and females in an otherwise comparable situation. The male perspective is exclusively reflected in this provision. Such differentiation, therefore, results in the explicit exclusion of women’s perspective and thereby discriminates against them.
As Martha Minow argues, there are many unstated assumptions that inform the differences including the assumptions that (a) these are intrinsic, not relational; (b) the perspective of a person seeing is assumed to be objective; (c) the perspective of those being judged is irrelevant; and (d) existing social and economic arrangements are natural and neutral. By applying her argument to the law of age of marriage one finds that the different and lower age prescription for girls is treated by law as intrinsic; the legislators, who are overwhelmingly male, feel that the prescribed age difference is objective; and girls’ perspective is treated as irrelevant and the legal acceptance of the lower age for girls is based on social and economic arrangements that are treated as natural. This results in a denial of equality to women and, therefore, discriminates against them.
Men and women are exposed to different concrete social conditions and pressures, and consequently they have different life experiences. Women and men’s different physical characteristics also sometimes contribute to it. However the legislative, executive, and judicial personnel attach importance only to men’s experiences, either unconsciously or on purpose CMRA is drafted in such a way that it pays merely lip service to the cause of preventing child marriage. The major substantial and procedural lacunae in CMRA and its weak enforcement implicitly exclude women’s experiences.
CMRA is silent about the legal consequence of a child marriage. It declares child marriage as an offence without affecting the validity of the child marriage. Usually, girls are given as children in marriages. Child marriages have more severe and serious effects on girls than boys—on their physical and psychological health, on educational and other opportunities, and on their personality development. These experiences are not valued by the law as child marriage is not declared invalid. The failure to take full account of the devastating effect of child marriage on women results in a situation that meets the needs and interests of women less than those of men. This reflects patriarchal bias and thereby disadvantages girls.
CMRA does not require the consent of the parties nor does it provide for the compulsory registration of the marriage. It does not make offences cognizable nor does it provide severe punishment to the offenders. Had the state agencies taken women’s experiences into account, the law might have been different. The inclusion of such provisions would have helped prevent child marriages. It might have also been enforced with more seriousness. Such exclusion of women’s experiences takes place because of an indifferent attitude to the conditions of women’s lives. Prima facie the absence of such provisions appear gender-neutral. However, it assumes that the experiences of men are universally applicable. Reaume would call this as the implicit exclusion of women’s experiences.
The judicial interpretation of CMRA so far has also indicated apathy towards the issue of child marriage. So far, it has not looked into the issue of child marriage from the feminist perspective. Neither has it held the government responsible for its failure to prohibit child marriages nor has it inquired into what measures the government has taken for the effective implementation of the law. The judiciary has not questioned the government about what alternatives are made available to girls who are not married off at a young age. The judiciary thus excludes women’s experiences implicitly.
To stop the child marriage of young girls in future, inquiry based on the woman question would help bring justice to the doorsteps of adolescent girls.