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Should Sarkari Danda Decide the Age of Marriage?

Some Thoughts on the Age of Consent for Sex and Marriage in India

As soon as the Rajasthan government passed the Compulsory Registration of Marriages Amendment Bill, 2021 a furious debate broke out in the country alleging that this new amendment will give legitimacy to child marriages, which is far from the case given the provisions of the said amendment.

Under the amended law, information on "child marriage" must be furnished within 30 days of the wedding. In the debate, the Parliamentary Affairs Minister Shanti Dhariwal argued that registration of child marriages does not imply that they will be considered valid. In any case, to describe a 17 year old girl or a 20 year old male as a "child" is nonsensical, especially considering that in most "advanced democracies" of the West,the age of consent and marriage has been lowered from 14 to 16 years, given the problems arising out of teenage sex and epidemic of unwed teenage mothers.

According to the new law passed by Rajasthan, the marriage registration officer will do the registration up to the block level. The bill provides that if the girl's age at the time of marriage is less than 18 years and the boy's age is less than 21, then her parents will have to inform the registration officer within 30 days. 

The issues related to 'the age of marriage' and the 'age of consent for sex' have been distorted beyond recognition due to the pressure to be politically correct, even if that means your decisions are idiotic and create havoc in society.

Way back in 2012, while the draconian Protection of Children from Sexual Offences Bill was under discussion, I had written the following article exploring the severe problems this law was bound to create under the guise pf protecting “children from sexual offences”.

A short version of this article was published in The Times of India, May 2, 2012 under the title: "Last of The Victorians". The full version of this article was also published on my blog a month before the Parliament enacted the 'Protection of Children from Sexual Offences Act 2012'

Now that the issue has hotted up again, I am publishing an extract from my longer article, 'Can the Police Danda Curb Teenage Sexuality?'


Let it be clear at the outset that I am not in favor of teenage marriages. But I’m dumbfounded by the duplicity and thoughtlessness of those who yell from the rooftops that the age of consent for sexual engagement should remain at 16, that teenage sexuality should be accepted as a natural development of growing up.

But when it comes to the age of consent for marriage in India they don’t object to the fact that a marriage of a girl below 18 is declared a crime inviting punishment for her parents, even though she chose or was keen to get married. 

For men, the age at which they are permitted to marry lawfully is 21.  A  section of overzealous feminists has been lobbying hard to get the legal marriage age for women also raised to 21.  This is a case of being more loyal than the king.   

Prevalent Epidemic of Unwed Mothers: Today in North America and many European countries the permissible age of marriage is 16 with parental or judicial consent. In several countries, it has been lowered to even 14 for both boys and girls. This is in recognition of the fact that most teenagers have regular sex, resulting in an epidemic of teenage pregnancies. It is a well-acknowledged fact that unwed teenage mothers are far more vulnerable than those who are married. Many are left alone to fend for themselves and the out-of-wedlock child after the young men who impregnated them refuse to take responsibility, leave alone offer a stable marriage. In most such cases, even the parents of the girl wash their hands off and expect the young girl to bear the consequences of her choices. True, the state provides housing and bare minimum financial support for such unwed teenagers in Europe and America. However, very few are competent to manage their lives and that of their kids all by themselves. Consequently, they take to drugs and enter into a series of abusive relationships leaving their kids extremely vulnerable and uncared for.

Police Danda is Authoritarian & Undemocratic Route to Social Reform: Those who are insistent on upping the age of marriage better realize that the danda of the police and fear of jail is not a democratic instrument of social reform. Common experience tells us that a legally wedded teenage mother backed by her marital and parental family is relatively better off than unwed teenage mothers who have little or no family support. Since we can’t curb teenage sexuality, it is counterproductive to prevent those youngsters who wish to get married early because they cannot do without regular sex. In such a situation, it is unfair to burden the parents with a daughter whose sexual needs brook no restraint. If she goes through multiple pregnancies or abortions with irresponsible male partners it becomes almost impossible for her or her parents to find a suitable man to marry her.

Gauna Vs Marriage: Champions of fixing 21 as the age of marriage, invariably present evidence of child marriages, which indeed appear offensive to any reasonable person. But these champions deliberately gloss over the fact that in most cases of child marriages in India- say at the age of 8 or 10 - the gauna or actual marriage and consummation takes place only around the age of 14. This does not mean I advocate early marriages--Quite the contrary.   

Imperious Civilizing Mission: But the Prohibition of Child Marriage Act of 2006 seems dutifully designed to carry forward with greater zeal the "civilizing mission" started by our colonial rulers from mid 19th century onwards.  The Child Marriage Restraint Act of colonial vintage passed in 1929 was a far less aggressive piece of legislation than the law brought in through feminist advocacy playing to international galleries and their patrons in western donor agencies. The 1929 Act prohibited marriages below 15 for girls and below 18 for boys and did not try to annul existing marriages, except if the woman opted to do so after turning 18. But the new law has not only raised the age of marriage to 18 for and 21 for boys respectively but also mandated harsh punitive measures against parents of such couples. At 18, a male is considered mature enough to vote and participate in deciding who will govern India in the next five years. He can acquire a driving license for plying a truck or a bus --both risky jobs. At 18, a man is considered old enough to be recruited in the army which is a very high-risk career option. But he is not mature enough to get married even though his biological clock tells him in more ways than one that he is.

Changing Social Profile of Groups Practicing Early Marriage: While most Indian liberals and feminists are willing to look benignly at teenage sex, they come down heavily on teenage marriages despite the fact that today teenage marriage is prevalent only among poor rural communities or their urban counterparts.  Their poverty has denied them access to quality education and the new world of economic opportunities available to elite groups of our society.  For such families, the burden of dealing with teenage pregnancies of unwed daughters is too onerous.  But the law enacted for dealing with such families is not only draconian but also utterly nonsensical.  Consider the implications of the following clauses: 

"Whoever being a male adult above 18 years of age contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or fine which may extend to one lakh rupees or with both.

Males are treated as legal adults at age 18 for all other purposes - including for going to jail--but for getting married they must be 21. Or else they are accused of ‘child marriage.' 

The law also mandates similar punishment to a person who performs, conducts or abets any child marriage. The Sultani Farmaan further declares that: 

"Where a child contracts a child marriage, any person whether as parent or guardian or any other person in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnized or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees."

However, in a typical fit of partisan generosity, the law states that "no woman shall be punishable with imprisonment" even if she has taken an active part in going for such a marriage.

Deadly Implication of Draconian Laws: A woman of 17 has an affair with a 19 year old and gets pregnant.  He then offers to or is persuaded to marry her in order to provide legitimacy to the relationship.  For this "illegal" act, as per this law, the man deserves two years rigorous imprisonment and a fine of rupees one lakh! What great favor is it to the woman that she is spared imprisonment and left to fend for herself or that 2 years of jail will leave the man unfit for any respectable job? 

If the politically fashionable slogan "My Body, My Right" holds good for a teenager's right to have premarital sex even with strangers, why is it unacceptable for teenage marriages, if the young woman so chooses, especially since it brings far greater safety for the young woman than sex outside marriage?

How Do We Deal with Sexually Active Teenagers?: Take also the predicament of a father who sees his 16-year old daughter sexually involved with or seeking relationships with a series of young men.  Instead of letting her risk becoming an unwed mother, he decides to let her get married to either the man of her choice or one that her parents select for her.  He too invites two years rigorous punishment and a fine of Rs 100,000.  Never mind, if the family has never seen, leave alone possess, one lakh rupees! 

 We cannot afford to forget that unlike in the late 19th and early part of the 20th century when early age marriages were common among upper castes and classes, today it is mostly the poorer social groups that marry their daughters young. To begin with they will have to incur debt or sell off their land or other meager assets to pay for lawyers, bribes to the police, and witnesses while fighting the legal case. On top of it, they have to pay a punitive fine. No wonder they are not impressed by such concern for the well-being of their daughters. It is time we try in all humility to understand the economic and social compulsions that lead to early marriages among the poor.

Early marriages are typical of situations:

  • Where good schooling and higher education are not easily accessible.
  • Even if people send their sons and daughters to poor quality government schools, it does not bring any noticeable difference in their employment prospects. 
  • Poor families living in city slums or violence-infested villages find it difficult to ensure the safety of their daughters. In Delhi alone, thousands of girls disappear from the slums and low-income neighborhoods without a trace because sex traffickers abduct them.
  • A young unmarried girl living in a crime-infested slum is an easy target of sexual harassment and assault. If a girl is abducted and raped, it becomes much harder to find a decent match for her.

In such a situation, to treat the desperation of parents to be freed of such responsibility at the earliest is to add insult to injury. In communities where women are physically safe, where their mobility—whether for education or for employment—does not bring deadly risks, the age of marriage rises without having to terrorize people into submission on this issue. 

People are not held guilty if they fail to stop a murder or rape. But if a neighbor or distant relative or a local traders association fails to call the police and get the family involved in teenage marriage arrested, they are assumed to be guilty.  If this is not inflicting police raj on poor communities, what is?  

Physician Try Your Prescription on Self First: I hope those who want to raise the age of consent for sexual activity and are in favor of sending people to jail for teenage sex will:

  • Put their own sons and daughters under close surveillance and hand them over to the police if their sons have sexual affairs before 21 and daughters before 18.
  • Will practice strict segregation between boys and girls because if you allow youngsters to inter-mix freely, they are bound to get sexually involved;
  • Stop sending their children to co-ed schools or mixed social gatherings because teenage sexuality is rampant in co=ed schools. 
  • Confine daughters to the zenana and keep boys in the mardana section of the house.
  • Make sure that even brothers, sisters, and close cousins do not ever get to spend time together except under the watchful eye of family elders because incestuous relations are more likely in situations where young persons are barred from interacting with outsiders of the opposite sex. 

I am unqualified to provide the endless list of do's and don'ts for curbing adolescent sex. However, they can get valuable tips from Saudi Arabia and the Taliban.  But then they should not be shocked if a good number of teenagers take to same-sex relationships! 

For me, a marriage involving coercion is as unacceptable, as irresponsible, uncaring sex - no matter what the age of the groom or bride, man or woman.  Even in our shastras such a relationship is called "Paishacha Vivah" and treated as the lowest form of union.  We need to provide culturally sensitive mechanisms, not the police danda, to help young people escape such marriages and discourage them from gravitating towards irresponsible loveless sex.   

Factors that Help in Raising the Age of Marriage: As far as the desirability of raising the age of marriage is concerned, our own history, as well as that of various other societies, tells us that the following factors achieve this end far better than punitive measures. 

  • A safe social environment with a low crime rate so that people are not worried about the physical safety of their daughters.
  • Easy and universal access to quality education for both boys and girls.
  • Universal access to quality health care services, including safe contraception.
  • Easy access to economic opportunities such as new jobs, professions and entrepreneurial activities, especially for women.

Communities, which have access to all of the above, do not need any coercive law to marry their daughters late.  Those who have been deprived of these facilities do not deserve to be locked up in jail. As for bringing about a change in cultural values and the social mindset, learn to understand the compulsions under which individuals or groups make choices you find "unprogressive". Also, don't presume that you have no real interest or stake in their well-being know what is good for them better than the concerned families.

Finally, let me make it clear that personally, I would encourage young people to postpone sexual engagement till they are old enough to face its consequences including unwanted pregnancy, and the likelihood of contracting sexual diseases.  

Even at the risk of sounding old-fashioned, I would urge young people to engage in sexual relations in the spirit of sacred trust with their partners.  Casual sex with unknown or little-known persons is a very high-risk pleasure, especially for women.  Women who engage in it end up being messed up not just physically but also mentally and emotionally.  But if young people do not listen to me, I certainly do not wish to see them terrorized and blackmailed by the police or sent to jail by the courts.  Using the might of the coercive power of the Indian state to punish teenage sex is akin to using AK47s to kill little pigeons.

 

Comments

Comments (2)

22 September 2021

Pretty well argued case against the raising the age of marriage and maturity which is referred in the holy Qur'aan in verse 4:6. Age of marriage and maturity is clear across the lands in which the consent is key. In order to eliminate the incidence of under age marriage based on the false report on the age of Shaheeda Ayesha ,I am sharing the real age of Shaheeda Ayesha https://www.slideshare.net/mukhtaralam/sayyada-ayesha-was-19-at-the-time-of-nikah-with-prophet-muhammad-suh-and-hp Marriage is a solemn covenant in allegiance to the divinely chosen leadership of the age.

Muhammad Mukhtar Alam
Email - mukhtar.ceasig@gmail.com

22 September 2021

TOTALLY agree with you.

JR
Email - ramarajiadi@yahoo.com

About Author

Madhu Purnima Kishwar

The author is National Professor, ICSSR & Founder Editor MANUSHI

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