The Prohibition of Child Marriage (Amendment) Bill, 2021: Raising the Bar or Raising the Barriers?

Authored by Paavni Gupta, 2nd year law student pursuing BBA., LL.B. at National Law University, Jodhpur.

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Abstract

This article critically examines the Prohibition of Child Marriage (Amendment) Bill, 2021, which proposes raising the minimum legal age of marriage for women in India from eighteen to twenty-one, aligning it with that of men. While the bill aims to address gender parity and fulfil international obligations, it faces significant challenges in implementation, conflicts with existing legal definitions of adulthood, and risks exacerbating the vulnerability of young women, especially in marginalised communities. The analysis highlights that legislative change alone is insufficient to eradicate child marriage without robust enforcement, social mobilisation, educational outreach, and economic support.

The piece concludes that a multifaceted and community-driven approach is essential for meaningful progress, emphasising that laws must be paired with practical, ground-level interventions to effect genuine social transformation.

Introduction

In a nation where a girl’s childhood ends far too soon, the 17^th Lok Sabha, in a historic attempt, passed the Prohibition of Child Marriage (Amendment) Bill, 2021. The bill amended the Prohibition of Child Marriage Act, 2006, to raise the marriageable age of females to twenty-one years from the traditional age of eighteen, aligning it with the marriageable age of men in the country. This advancement was in line with the recommendations of the Jaya Jaitly Committee, established by the Ministry of Women and Child Development in 2020, to explore the feasibility of increasing the marriageable age of women in India and its implications. Additionally, being a signatory of the Convention on the Elimination of all forms of discrimination against Women, “which mentions elimination of child marriage” and that the marriageable age of men and women should be alike, this bill certainly brings our law in conformity with its international obligations. However, with 23% of women aged between twenty and twenty-four years getting married before attaining eighteen years of age, the real concern raised is whether a law alone can reform years of tradition and practice.

Marriage is one of the most important social institutions in India. Not only is it treated as inevitable, especially for women, but it also regulates social acceptance, socioeconomic standing, and the customs in society. Numerous laws are in place regarding marriage and the legal eligibility it affords to individuals. Colonised India had multiple societal evils, and the most glaring ones affecting women were customs allowing, and as a matter of fact, celebrating child marriage. It is, thus, imperative to examine the progress that has been made thus far.

It is necessary to examine the underlying social and economic factors that perpetuate the solemnization of marriage between parties without their explicit and informed consent. This article discusses,  first, a lack of implementational clarity and enforcement measures in the bill, second, addressing the conflict with other laws and the concept of multiple adulthood as established by law in India, third, the potential for increased vulnerability of females and fourth, contradictions with the existing legal frameworks.

The Evolution of Child Marriage Laws In India

In the Victorian era, the age of marriage was twelve years for girls and fourteen years for boys. This was later corrected to a larger number. Historically, the marriage of minors, even those as young as ten, to significantly older individuals, such as a forty-five-year-old man, was not uncommon and often met with societal acceptance.

In contemporary times, the root causes for early and child marriages, though prima facie appear to be dowry, poverty and societal customs, on a fundamental level, are an interplay of patriarchy, class, caste, religion and sexuality, which lead to complex realities and influence decision making. The impact of such an interrupted childhood can be traced in women by the high dropout rates, deteriorated reproductive health and subdued autonomy. The National Family Health Survey, 2006, [NFHS- 03], provided evidence that whilst 90% women are aware of the various contraceptive methods, only 20-30% are able to avail themselves. Hence, this leads to high rates of infant mortality, miscarriages, abortions, etc. Thus, child wed locks perpetuate a cycle of negative health, limited opportunities, giving rise to critical public health and gender equality issues of utmost importance for girls and women.

According to the State of the World’s Children (SOWC), 2007, UNICEF, “Premature pregnancy and motherhood are an inevitable consequence of child marriage. An estimated 14 million adolescents between 15 and 19 give birth each year. Girls under 15 are five times more likely to die during pregnancy and childbirth than women in. ” Further, as established by the Early Marriage, 2005, UNICEF, nearly 67% of women who were married below eighteen years of age faced domestic violence. These statistics confirm the continuing grave implications of child marriages and only a minuscule reality of its hazards.

India’s first step post-independence came in 1949 itself, when the Child Marriage Restraint Act, 1929 [Sarda Act], sponsored by Harbilas Sarda and initially enacted in 1929 as a brainchild of the Joshi Committee, was amended to change the acceptable age of girls to fifteen years. It was now an Indian Act aimed at addressing the social evil of child marriage by prescribing a minimum age of marriage and penal consequences for non-compliance.

Rai Sahib Harbilas Sarda, related social reform to the growing nationalist movement in India, “So long as these evils exist in this country, we will have neither the strength of arm nor the strength of character to win freedom.” The legal age of marriage in India was amended in 1978, raising the minimum age to eighteen for females and twenty-one for males.

 The Prohibition of Child Marriage Act, 2006 [PCMA], which came into effect in India in 2007, aims to prevent child marriages within the country. The Act codified the ages of eighteen for women and twenty-one for men, and also provided assistance to victims of minor marriages, along with deterrence to anyone who abets, assists or conducts a child marriage. It came as a ray of hope to elevate the status of women and eradicate evil from society. However, little progress has been made in this direction. In addition to the findings of the NFHS-5, the Annual Periodic Labour Force Survey 2019-20 highlights that the LFPR, which stands for Labour Force Participation Rate, an estimate of an economy’s active workforce, for women between fifteen and fifty-nine years was 32.3%, much lower than that of men at 81.2%. 

Thus, despite policy interventions and attempts at progressive legislation, the still prevalent norm of child marriages calls for a dismantling of the deeply entrenched societal norms, going beyond the law and not just systemic inequalities.

A Paradox of Progress: The Purpose Defeated by the Path

The introduction of an amendment to the PCMA Act, 2006, and by virtue of it, the increased minimum marriageable age for women from eighteen years to twenty-one, brings it at par with that for men in the country. The bill under section 3(3) alters the period within which annulment of the marriage could be filed after attaining the age of majority, from two to five years, and thus, a woman may annul the marriage any time until the age of twenty-three years. Furthermore, Section 1(2) of the bill declares that the law would have an overriding effect on contrary provisions contained in personal laws, such as the Muslim Personal Law (Shariat) Application Act of 1937, the Indian Christian Marriage Act, 1872, and the Parsi Marriage and Divorce Act, 1936. It is an express declaration that the provisions of the bill will prevail notwithstanding any inconsistency contained in other enactments. The prescribed age in the bill will supersede all lower thresholds permitted under various religious statutes. For instance, Muslim personal law allows a girl to marry upon attaining puberty, typically at fifteen years of age, while Christian and Parsi laws permit eighteen years as the prescribed marriageable age. However, by virtue of the non obstante clause, such diversified provisions will cease to operate. The proposed amendment should ensure a uniform protection for all communities, acknowledging the age of marriage as a matter of social reform rather than religious autonomy.

The Law Commission of India, in its 2018 report titled “Consultation Paper on Reform of Family Law”, advocated for a standard and similar age of marriage at eighteen years for both men and women. The United Nations Convention on the Rights of the Child and UNICEF concur with the same, and hence, the proposed amendment comes in along with the United Nations Convention on the Rights of the Child and UNICEF, with India’s international obligations and national reformation requirements.

The deliberations of the parliamentary committee examining the bill further highlight the contentious nature of the intended reform. Ms. Sushmita Dev, the sole female member of a thirty-one-member parliamentary panel, brought attention to the gendered perspectives that risked being sidelined in the discussion. However, due to the dissolution of the winter session of the Lok Sabha, the bill stands lapsed. Several recognisable inconsistencies between the domestic and international legal standards, between statutes and personal law mandates and between the intended purpose and the likely consequences of the bill, ask for a careful examination of the lapsed amendment bill before any reintroduction of the same.

Implementational Deficits: A Half-baked Approach

First, considering the primary purpose of the bill—the increased enrollment of women in higher education, increased participation in the workforce, improved maternal mortality rates, healthier infants, and a higher standing of women in society. The above-mentioned NFHS and LFPR reports provide a clear picture of the dismal state of implementation of the current law on child marriage in India. The amendment introduced does not provide for any changes in the implementation mechanism for the law, which raises doubts about the efficacy of the amendment itself. A mere increase in age on paper cannot ensure greater participation of girls in higher education or the work sphere. What is required is sustained efforts towards gender equality and women's empowerment, including educating them, ensuring they receive their rightful share of property, providing safe workspaces, and offering them equal treatment. Laws that conflict with social dynamics and beliefs struggle to achieve their purpose unless they are accompanied by a strong and effective implementation mechanism at their foundation.

A helpful example would be dowry laws in India. A well-drafted Act has been in place for decades now; however, numerous cases still come up every now and then. Until paired with community outreach programs, mobilisation and active awareness and education, these acts trying to alter the much-set in social fabric will end up being a paper tiger and nothing more.

Laws alone cannot change centuries-old practices. Social mobilization and education are   the real game-changers.

— Dr. Ranjana Kumari, Director, Centre for Social Research.

Conflict With The Concept of Multiple Adulthood

The bill defines a child as a male or female who has not completed twenty-one years of age. This definition is in stark conflict with many others under different laws of the country, like Section 3 of the Majority Act of 1875, which states the age of majority as eighteen years, and internationally, organisations like UNICEF define a minor as anyone below the age of eighteen years and thus, classify any wedlock before this age as a child marriage. Further, a similar stance was endorsed by the apex court in Independent Thought v. Union of India, citing eighteen as the ideal age of marriage.

An Indian citizen at the age of eighteen can attain a driving license, open a bank account, cast his/her vote in elections, enter into legitimate contracts and is treated as an adult in every aspect. To the contrary, despite being fully capable of exercising his/her right to life, he/she cannot exercise their right to marry. This presents a jurisprudential inconsistency in the definition of adulthood within the Indian legal frameworks.

Denying citizens aged between eighteen years and twenty-one years their right to marry seems like an unreasoned restraint on their right to life. The Supreme Court in Shafin Jahan v. Ashokan held that the ambit of the Right to Life under Article 21 includes the right to marry, and this right cannot be restricted unless by a substantially and procedurally just and reasonable law. Since the bill restricts individuals between the age bracket of eighteen and twenty-one from marrying, the question to be answered is whether this restriction is a reasonable one, as established by the court of law in India.

Suppose marriage were to be seen as a civil contract. How do we escape the logical and necessary inference that it must, like all other contracts, fulfil the basic requirement of free consent, competent parties and the principle of consensus ad idem?

This inconsistency is one that needs to be rectified for the legislation to be effective.

Potential For Increased Vulnerability Of Women

According to a report published by UNICEF in 2019, India is home to one of the largest numbers of child brides in the world. Child marriage is a violation of many human rights, including the right to consensual marriage, safe reproduction, quality and complete education and the freedom of expression. Hypothetically, even if the bill becomes an Act, a girl belonging to rural India may still be married off before she turns twenty-one, and be denied her spousal rights and immunities. Statistically speaking, most underage weddings take place in marginalised communities such as the Scheduled Castes and the Scheduled Tribes, as well as those residing in rural areas. Thus, more rural women will be affected than metropolitan ones. The state-wise variation in percentages of young women who had married in childhood is considerable. In 2015-16, percentages of women aged twenty to twenty-four who married before age eighteen ranged from 8-10 percent in Goa, Himachal Pradesh, Kerala, Punjab and Jammu & Kashmir to 35-44 percent in Bihar, Jharkhand, Rajasthan and West Bengal, states which have a considerable citizenry coming from tribal and marginalised backgrounds.

Thus, the Act’s glaring loophole is that most girls will still get married at the same age but they will be deprived of the documental protection that they might have had before the Act was amended. In arguendo, in the present scenario, a young girl, getting married at the age of eleven years, will have to wait for another seven years to have valid documentation; however, with the Act in place, this wait prolongs to ten years for her. Until prudent implementation is ensured, the Act will be further exacerbating vulnerabilities for many young girls.

A solution to resolving this issue lies in outreach programs, awareness campaigns and highlighting the ill effects and drawbacks of child marriage in rural setups- the most vulnerable section of the nation and one where all change starts.

Poverty is another aspect that needs to be addressed through increased educational and employment opportunities. A report released by the World Bank in 2018 revealed that each additional year of secondary education could lower the risk of early marriages in women by 6.1 percentage points on average across the fifteen developing countries surveyed, and the risk of early childbearing could be reduced up to 5.8 percentage points. As proven by Field and Ambrus (2008) and Nguyen and Wodon (2015, child marriage is one of the major factors leading girls to drop out of school prematurely in many low-income countries. Girls are married off earlier due to the income problems, and their chance at attaining a higher education is curbed. More than 40 per cent of the world’s child marriages happen in India, and worse in rural and backwards areas than in urban India, with 56 and 29 per cent, respectively. A number of issues branch out from early childhood marriages, like poor infant mortality rates, still births, domestic abuse, strengthened patriarchal setups, etc. Consequently, poverty presents a significant obstacle to the bill’s effectiveness.

A Tussle With Pre-Existing Laws

The right to consent of an individual is proclaimed at the age of eighteen years in India; additionally, the Bhartiya Nyaya Sanhita, 2023 [“BNS”], amends the definition of age of ‘child’ to anyone below the age of eighteen years. In 2018, the apex court affirmed through Navtej Singh Johar v. Union of India, that consensual sex between consenting adults is a basic human and fundamental right under Article 14, 15, 19 and 21. If this bill comes into effect, consensual sexual intercourse between adults aged eighteen to twenty-one years will be valid, but their marriages would not be. There is a potential for this to embolden those with malicious intent, increasing the risk of exploitation and harm towards women.

Further, the act, if passed, will contravene the rape and marital rape laws of the land, i.e. Section 63 of the BNS. If a woman is married before twenty-one and is raped by her husband, there is no valid proof with the husband or the wife to prove the validity of the marriage, and thus, the rape trial becomes a tricky one. Furthermore, the ongoing pursuit by our country to criminalise marital rape will face a potential setback due to this development. A similar case would be the POSCO Act, the Juvenile Justice Act, and various labour laws, which define a child as an individual below the age of eighteen years.

The proposed legislation may conflict with various personal laws, potentially infringing upon the constitutional right to freedom of religious practice guaranteed by Article 25. For instance, the Hindu Succession Act, 1956, which grants spousal rights to each other’s property, defines the age of majority as eighteen, creating a potential conflict with a different age stipulated in the proposed bill. An answer to this may be in the form of the much-controversial Uniform Civil Code [“UCC”]; however, considering the application of a single set of civil laws applied uniformly throughout, in a country as diverse as ours, presents further complexities.

In closing, we can surmise that this amendment to fit well in the social fabric of the country is a task that requires special diligence. Uncoupled with carefully curated and properly drafted supplementary schemes, provisions, incentives, campaigns and implementation mechanisms, the act will not be able to suit and fulfil what society requires. 

A Multifaceted Approach

A rebirth of the bill will require building a support system to alter the perception of society towards child marriage and contemporary efforts to be situated within ongoing structural changes in economic, cultural, and social frameworks. Mobilisation of community leaders, religious heads, and awareness programs in communities with low female education rates can play a crucial role. Outreach programs, rallies, promotion of girls in higher education, and incentives for intervening in and reporting child marriages will further help address the cause of child marriage. Additionally, economic support for girls coming from low-income households, coupled with awareness programs about early adolescent pregnancies and problems associated with it, including provisions for penalizing officials neglecting their duties, resulting in lack of accountability and hindrances to social justice, are some credible ways of reaching out to the community and strengthening the framework to fight against the social evil of early childhood marriages.  

In a more structured approach, a reformed bill should, apart from declaring child marriages as void ab initio and provisions of the bill as overriding any other personal law of the land which may be conflict, provide for a preventive and an evaluation based approach—including Child Marriage Officers [CMOs] at village or ward level to be appointed for an inspection of the area on a monthly basis and be vested with legal authority to report for injunction, any marriage solemnised before time. Local NGOs and the Anganwadi framework may be partnered with for additional efficacy. Further, a parliamentary committee of the Ministry of Women and Child Development could run evaluations and periodic reviews on the impact of the law on maternal mortality rates, infant mortality and literacy rates amongst women, etc. Furthermore, a provision criminalising registration of child marriages should be added as a pertinent feature of the bill, with other ancillary incentives such as scholarships for secondary education of women and the addition of curricula on bodily autonomy, legal age of marriage, majority and reproductive health of women, at the secondary level of education.

Lastly, a state budget allocated solely for the rehabilitation, reformation and reintroduction of rescued child brides into society and specifically curated skill development programs for them to become independent and self-sustaining.

Conclusion

Despite being a progressive step in the right direction, the success of The Prohibition of Child Marriage (Amendment) Bill, 2021, depends on a holistic and multifaceted approach. Implementational frameworks should accompany the bill to prevent an ambiguous understanding of adulthood or open doors to exploitation and vulnerability for females; however, on the brighter side, this bill brings along a ray of hope for when a girl is married at the age of twenty-one, she will get time to avail herself of opportunities which she otherwise may be deprived of. Laws, thus, are only as good as their implementation. Ultimately, the effectiveness of the Prohibition of Child Marriage (Amendment) Bill, 2021, will anchor on not merely the legislative text but on robust enforcement, social reform and the sustained upliftment of women at the grassroots levels.