A young girl does not have much understanding of what is happening in her life when she is married off. A major decision about her life is taken by the older members in the family on her behalf. Neither is she able to express her wishes nor is her opinion asked for. Her free and informed consent has little place in the scheme of traditional arranged Indian marriages. And none other than her own parents are responsible for it. It may be that they themselves are victims of societal pressure to marry her off at a young age. But the fact remains that as a corollary to it she has to face a number of adverse consequences— physical, psychological, financial, and developmental.
Here I focus on how the Indian legal framework has addressed the issue of child marriage. I begin the discussion with the historical developments that took place prior to the enactment of the Child Marriage Restraint Act, (CMRA) 1929, for controlling child marriages. Efforts for the legal prevention of child marriages began in 1880 with the change in the age of consent for the offence of rape. Instead of laying down the minimum age of marriage, social reformers of that time thought of punishing those men who had sexual intercourse with their wives below a particular age. The change was intended to give protection to young girls from sexual abuse within the institution of marriage.
The debate on raising the age of consent resulted in the establishment of two committees to examine the issue of child marriage. The reports of these two committees ultimately led to an enactment of a separate, secular, and uniform statute entitled the Child Marriage Restraint Act. I review the provisions of this statute and critically analyse the substantive as well -procedural lacunae in it. My concern is to find the extent to which the law^ and policies relevant to the age of marriage and reproductive health have promoted the rights of young girls. My analysis discloses that the enactment of this statute was merely tokenism without a serious commitment to prohibiting child marriages. My argument is that the policy makers have not addressed the question from women’s perspective. They have not taken into account the woman question that exposes their patriarchal bias while legislating. There has been no change in the approach since the law came into force in 1929 and the same perspective continues even today.
I then analyse the judicial interpretation of CMRA and try to demonstrate how an otherwise active judiciary has not taken much of a lead in delivering justice to young girls. I argue that it could have played a more effective role in preventing child marriage in India had it interpreted the practice of child marriage from women’s perspective and with a human rights approach. By analysing laws and judicial decisions, I argue that neither the policy makers nor the judges have been seriously committed to solving the problem of child marriage right from the inception of CMRA. Nor were there any consistent and holistic efforts on the part of the government to enforce CMRA, primarily for the reason that young girls are the real victims of child marriages.
I further focus on how and to what extent other legislation, including the Indian Penal Code, 1860 (IPC), have tried to respect and promote the dignity of a girl child. I have commented on the offence of rape within marriage which is dealt with in a limited manner in the Indian Penal Code. Here I highlight particularly the age of consent controversy from the feminist perspective. I argue that the Indian legislators of the late twentieth century still share the notion of Victorian morality and uphold the dominant familial ideology by recognizing the authority of the husband over his wife.
Law Relating to Child Marriage
The law relating to the age of marriage, namely the Child Marriage Restrain Act (CMRA) enacted in 1929 was subsequently amended in 1949 and 1978 to raise the age of marriage. However, each time the objects oft amendments were different. Societal need at a given point of time was reflected in bringing the changes in the provisions of CMRA. But at the same time, the objects did not cross the boundaries of sexual considerations. It merely focused on what is the appropriate age for a husband to have sexual relations with his wife. There was no reference to negative effects on the development of a girl child or to her free consent. Her consent was immaterial since parents were thought to be better equipped than an immature girl to handle the vital question of her security.
History of Legislation in India concerning Child Marriage
Efforts to prohibit child marriage through legislation began in India in the latter half of the nineteenth century. It became one of the most burning topics of public debate during the early decades of the twentieth century. But it is unfortunate that even at the beginning of the present millennium, the situation has not improved substantially. Child marriages are still taking place in the country and are rampant in many parts, especially in the rural areas of the four major northern states—Uttar Pradesh, Bihar, Madhya Pradesh, and Rajasthan—and in one southern state, Andhra Pradesh.
In the latter half of the nineteenth century, social reformers were trying to build up public opinion in favour of the legal sanctions against child marriage. The major reason to prevent child marriages was to give protection to young wives who suffered enormously due to forcible sexual intercourse with them by their husbands. They had to face their husbands sometimes even before they reached the age of puberty or immediately after reaching menarche. Another reason for demanding legal sanctions against child marriage was to control a large population of young widows. Very young girls were given in marriage to men who were in their thirties or even forties. Life expectancy in those days being quite low, young brides used to become widows on a large scale during the first few years of their married life. Remarriage of a widow, particularly of a Hindu widow, was not allowed by law, religion, and society. The living conditions of such widows were very pathetic.
Rukhmabai’s Case of Child Marriage
At this juncture, it is important to note the two cases that came before the courts for hearing. One was the case of Rukhmabai and another was of Phulmonee. Rukhmabai was married in 1874 when she was just eleven years old. She did not live with her husband till 1884. In 1884 Dadaji, her husband asked Rukhmabai to come and stay with him. But she refused to go and stay with him. Dadaji then filed a petition against her for the restitution of conjugal rights. Rukhmabai pleaded in her answer to the petition that Dadaji was not entitled to the decree of restitution of conjugal rights on the ground of social, economic, and personal incompatibility. Rukhmabai averred that she had not ‘arrived at the years of discretion’ at the time of her marriage. So she could not be forced to cohabit with her husband. This entailed a fundamental proposition that a marriage ought not to be binding on a spouse who had not consented to it.9
Justice Pinhey looked at the marriage from purely a contractual basis. In his view, the explicit consent of the parties was required for the marriage to be valid. However, it was argued that Hindu marriage was a sacrament, and hence, an indissoluble divinely ordained union to which the consent of the parties was irrelevant. Indeed to introduce the requirement of consent would render almost all current Hindu marriages invalid, and the children of such union illegitimate, besides opening the door to improper alliances and the ultimate breakdown of the social order of castes.
The decision provoked immediate public uproar. For some, it was a bold declaration of the rights of Indian women to personal freedom and dignity. For others, it was an assault on the sanctity of Hindu marriage and family. Dadaji appealed to the division bench of the Bombay High Court, which overruled Justice Pinhey’s decision and sent the matter back for reconsideration. By then Justice Pinhey had retired. The matter was heard by Justice Farren. The then existing law did not allow a defence of incompatibility for the petition of the restitution of conjugal rights. The court, therefore, ordered Rukhmabai to join Dadaji within a month, failing which she was to be imprisoned for six months. A compromise was reached out of court between Rukhmabai and Dadaji. She paid him Rs 2,000. In return, he agreed not to press for the execution of the decree for the restitution of conjugal rights.11 She was saved from having to go to prison.12
Rukhmabai’s case received attention because, at the time when child marriages were common and supported by law, religion, culture, and society, a woman who was given in marriage when she was a child had refused to accept the marriage and a husband whom she did not like. This was the first case of its kind. Rukhmabai’s defiance was disturbing, as it not only threatened the sanctity of child marriage but also because it posed a risk to male domination since she had rejected the idea of woman’s inferiority. Questioning what was assumed to be natural, she offered a subversive model of assertion by women of their desire, as individuals, in a society dominated by the family, community, and men.14
The second case was tragic and galvanized public support for the Age of Consent Bill, and, in many ways, silenced the opposition. Phulmonee, a girl aged eleven years and three months, had died because of haemorrhage from a rupture of the vagina caused by her husband who had forcible sexual intercourse with her. He was charged with the offence of murder. But the court exonerated him of the charge of murder as the girl was above ten years.
It was unfortunate that all opinions agreed on a definition of consent that was nailed to a purely physical capability, entirely dissociated from free issues like choice of partner, sexual, emotional, or mental compatibility or other social considerations such as a girl’s personal development. Consent was made into a biological category, a stage when the female body was ready to accept sexual penetration without serious harm. The only difference lay in assessing when this stage was reached. However, reformers could not be completely equated with the nation?lists. Reformers always had to struggle with a minimal programme to get some social support. On the other hand, nationalists were staunch supporters of patriarchal absolutism. Their insistence on self-rule in the domestic sphere coincided with their insistence that the girl should sacrifice her physical safety and even her life to defend the community’s claim to autonomy.
Phulmonee’s case highlighted the then existing inadequacies of law and ultimately led to an amendment in the law of rape. The age of consent in section 375 of the IPC, which initially was ten years in 1860, was raised to twelve years in 1891. It was subsequently raised to thirteen years in 1925 and later on to fifteen years in 1949 for the legal consummation of marriage. After 1949, the age of consent for sexual intercourse within marriage with or without consent has not been raised further though the age of marriage for a girl has been raised by CMRA to eighteen years in 1978.
These changes were aimed at treating women more humanely and were basically informed by a form of protectionism. Social reformers, barring a few exceptions such as Phule and Agarkar who struggled for amendments in the age of consent, were not women’s rights advocates or advocates of women’s equality. They belonged to the socio-economic elite and were conscious of women’s oppression. Their attitude was patronizing. They were seeking to protect young girls from vulnerability at the hands of men through the exclusion of women’s experience. They never truly asked what impact the patriarchal social institutions had on women. As Sathe argues: ‘There was no consciousness about the oppressive character of the patriarchal system.’ Women were not assumed to be equal to men. They were assumed naturally to be wives and mothers. The social reform movement at that time was merely animated by the oppressive cultural and traditional practices, which were offensive to women. The concern was not to recognize the equal rights of women. Unfortunately, the same attitude continues even today.