Right to Equality, a fundamental right protected under the Indian Constitution ensures Equality before the law and equal protection of the law; however, we still notice that many laws in our country do not abide by it. One such is the example of different ages of marriage for men and women. This law is discriminatory on the face of it. Even after so much development and evolution in our legal system, we still end up finding loopholes that fail to serve justice. In a fast and progressive country like India, which is developing each day, we need new laws to replace the outdated and primitive ones.
Currently, the minimum age of marriage for men is 21 years, and for women, it is 18 years. If the age of attaining the majority is gender-neutral, then why do we have a different age for both genders? Before answering this question, it is imperative to understand why do we need a minimum age for marriage.
Why do we need a minimum age for marriage?
India had a tradition of child marriage for the longest time. All of us must have heard the stories recited by our grandparents or other elderly relatives about how they got married at a very early age. Child marriage was regarded as a very ordinary concept back in time. Even today, the tradition is ongoing, and it is not very uncommon. Though Child marriages are banned universally, they still happen around 33,000 times a day, according to the report published by the United Nations Population Fund (UNFPA).
The law prescribes the minimum age of marriage to rule out the possibility of child marriages and abuse. Moreover, sexual intercourse with a minor is rape as a minor is incapable of granting consent. Personal Laws of religions have their standards for dealing with marriage, often reflecting custom.
Section 5(iii) of the Hindu Marriage Act prescribes the minimum age of marriage for the bride as 18 years and the groom, 21 years. The act does not state child marriages to be illegal; however, it can be declared void on the request of the minor.
In Islam, marriage is religiously valid if the minor has attained puberty.
Different Age of Marriage
There has always been a stereotype that wives should be younger than the husband. However, there is no trace of any logical reasoning behind this. The law is constituted based on religious practices and customs. Along with this stereotype, there is another one that states that women are usually interested in older men and are more mature than men of their age. The International Treaty Committee on the Elimination of Discrimination against Women (CEDAW) asks to overthrow the law that assumes that women tend to have a distinct intellectual or physical rate of growth than men. All these stereotypes are baseless and derogatory and need to be reformed and revoked.
The Evolution of Law
The law relating to a different age of
marriage for men and women has evolved during the years, and it is not in its
original form now. The Indian Penal Code, enacted in 1860, penalized sexual
intercourse with a girl who is below the age of 10. It was only in 1880 when
the legal framework for the age of consent for marriage in India came into
In 1927, through the consent bill, the
provision for rape was amended. It decided that the marriage with a girl below
the age of 12 would be invalid. This change was regarded as an intervention by
the Britishers in the Indian custom and tradition. It got opposed by the
conservative leaders of the Indian National Movement.
16 and 18 years of marriage for girls and boys
respectively was set as the minimum age of marriage in 1929 by the Child
Marriage Restraint Act.
Finally, in 1978, the Sarda Act was amended, prescribing the age of marriage as 18 and 21, respectively, for women and men. To date, we follow this act.
The need to relook the law
The first and foremost reason to reconsider
the different age of marriage for men and women is to ensure gender-neutrality.
Early marriage leads to early pregnancy that further leads to child mortality
rates and also affects the health of the mother. It becomes a vicious circle. According to Census 2011, around 56% of
women marry between the age of 18-21.
Upadhyay, a petitioner, in Delhi High Court, challenged the law. He alleges that having different ages for marriage for men and women is violative of Article 14 and 21 of the Indian Constitution that guarantees the Right to Equality and the Right to Live with Dignity.
It is significant to remember the two Supreme
Court rulings in the context of this argument. In 2014, in theNational Legal Services
Authority of India v Union of India, The Supreme Court recognized
transgender as the third gender. It held, “assumption that humans have equal
value and should, therefore, be treated as equal, as well as by equal laws.”
In 2019, In Joseph Shine v Union of India, the apex court decriminalized adultery. It held, ‘a law that treats women differently based on gender stereotypes is an affront to women’s dignity.’
Recently, Prime Minister Narendra Modi dropped
a hint to reconsider the legal age of marriage for girls. He addressed the
question to the public at large regarding the appropriate age of marriage for
girls and informed that a committee had been set-up to revise the legal age of
marriage for girls.
We can hopefully assume that our legal system will soon replace the outdated law regarding the different age of marriage for men and women. It will be a positive step towards ensuring gender equality and will help in eradicating early pregnancies and other health issues related to it. India is progressing at a rapid rate. Many opportunities are opening up for women, be it a job or higher education, and such primitive laws can block such opportunities for women. A step-towards equal age of marriage for both men and women would help in providing a bright future to the women of the nation.
Editor’s Note The present article talks about the problems associated with the traditional Indian perspective of the idea of marriage, the concept of age differences between brides and grooms, how such ideas are rooted in patriarchal notions of the older times and how they can prove to be problematic in today’s day and age. This article also talks about the importance of gender-neutral laws for marriage, and how such laws can prove to be successful in tampering the problems of child marriage, abuse, deaths and other complications resulting from early pregnancies which are rampant in our society till date.