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INDIA TODAY - The most widely read newsweekly in South Asia.
    CURRENT ISSUE OCTOBER 24, 2005
 
   NATION: MARRIAGE LAWS
 
Knot Right

The Delhi High Court reduces the legal age of marriage, sending human rights' activists into a tizzy and revealing many loopholes in the existing laws.
 
 
  PICTURE SPEAK
TILL STATUTE DO US PART: Has underage marriage become legal?

With one stroke of the pen, the Delhi High Court did the unimaginable: confounded an already confused situation by declaring legal the marriages of two 16-year-olds. In one fell swoop, by reducing the legal age of marriage from 18 to 15, it said a 15-year-old girl-not old enough to pass school and three years short of voting age-could decide whom to marry. The court declared that by mid-teen a girl reaches "the age of discretion" and if she marries of her own free will, the marriage is legal and enforceable in a court of law.

Apart from the National Commission for Women (NCW), many Christian rights' organisations, women's groups and every social rights' activist worth her cause are up in arms against the judgement in the cases of Ravi Kumar Vs State and Phoola Devi Vs State. In both these instances, 16-year-old girls had sought the quashing of firs in which their husbands had been accused of kidnapping and rape. They also wanted to be released from the Nari Niketan where they were housed. The honourable high court agreed and went on to quote Francis Bacon: "You cannot love and be wise."

But can the Renaissance courtier's one-liner be the final word on contemporary issues? Should people believe that child marriages have now become legal? "The court is correct in its interpretation of the Hindu Marriage Act as it exists today but a reconciliation of at least four Acts has to be done to send out a reassuring signal," says Supreme Court advocate Pinki Anand. She is referring to the Hindu Marriage Act, 1955, the Child Marriage Restraint Act, 1929, the Juvenile Justice Act, 2000, and the IPC. Even as it stipulates 18 as the age of marriage for girls, the Hindu Marriage Act does not expressly hold underage marriages null and void. It only provides for mild punishment-15 days of imprisonment and a fine of Rs 1,000-for the husband and the parents of both the bride and the groom. The Child Marriage Restraint Act only increases the term of punishment-"whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment up to three months".

    RESOUNDING PROTEST
PINKI ANAND,
LAWYER, SUPREME COURT

"The court has to reconcile at least four Acts to reassure the people."

BRINDA KARAT,
RAJYA SABHA MPr

"The judgement is ridiculous and retrograde. It goes against the Child Marriage Act."

GIRIJA VYAS,
CHAIRPERSON, NCW

"There should be a rethink on the order and the NCW will appeal against it."

Women politicians are breathing fire. "The Delhi High Court order will be challenged," says Girija Vyas, chairperson of the ncw. While Rajya Sabha MP and CPI(M) Politburo member Brinda Karat says the judgement is "ridiculous, outrageous and retrograde because it is against the Child Marriage Act", Tourism Minister Renuka Chowdhury wonders if a girl can marry at 15 then the nation might as well allow 15-year-olds to vote, drink and drive. NGO activists in Rajasthan and Madhya Pradesh, who are campaigning against child marriages, worry that mass marriages held during Akha Teej will now get legal sanction.

"One can appeal against the judgement and it is liable to be reversed," says senior advocate Diljeet Titus. But Moolchand Sharma, director of the National Law Institute University, Bhopal, says the decision must be viewed in today's circumstances and all its complexities and contradictions. "My impression is that the order takes into account the entire social context. The social structure has changed and people's awareness levels have increased due to mass media and increased exposure. Today 15-year-old girls are more mature," he says.

WEDDED TO CONFUSION
According to the Hindu Marriage Act, 1955, the legal age for marriage for women is 18 but it says underage marriages are "neither void nor voidable".

The Child Marriage Restraint Act, 1929, defines a man under 21 and a woman under 18 as "a child". However, it stipulates only a mild punishment for offenders.

Section 375 of the Indian Penal Code implies that a 16-year-old girl can have consensual sex. It also holds that "sexual intercourse by a man with his own wife not under 15 years is not rape".

Anand strives to strike a middle path. She says the court is dealing with a specific malaise: of underage girls being confined to shelters like Nari Niketans against their will. Some women's groups too are willing to look at the decision in this context. Says Nirmala Buch, former chief secretary of Madhya Pradesh and chairperson of the Mahila Chetana Manch: "The order can be viewed from the perspective of the boy who is charged with rape even when the girl has eloped with him." She points out, however, that the judgement does not help the cause of the woman.

The IPC provisions add to the confusion. According to Section 375, a man is said to have committed rape when he has sexual intercourse with a woman with or without her consent if she is under 16 years. This implies that a 16-year-old girl can have consensual sex. The section also says that a man can sleep with his wife and not be charged with statutory rape if she is 15 years old. Thus the Delhi High Court is not wide of the mark in its recent interpretation. Both the girls in the particular case were 16 years old so their husbands could not be charged with rape and their marriage could not be held void under the Hindu Marriage Act.

This now leaves the weighty question of the age of discretion. Parliament will have to study it as it considers the Child Marriage Bill 2004. Titus feels that even as existing laws need to be more rigorously enforced, a compulsory registration of matrimony will solve the problem to a great extent. But where most politicians fail-as did the British in another century-is in gauging the mood of the Indian public. In all the Acts only a mild punishment is stipulated because child marriage is considered a reality in India, one which no amount of policing can curtail.

However, at a time when a more aware society is waging its battles in the name of human rights and the health of the girl child, the present judgement appears every bit retrograde. To say the least.

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INDIA TODAY - The most widely read newsweekly in South Asia.
CURRENT ISSUE
OCTOBER 24, 2005
 IN THIS ISSUE
COVER STORY

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