Lessons not Learnt

By Shaan Katari Libby

A WhatsApp message appeared on a group last week from an indignant friend. It carried images of the recent 10th Standard Board exam that had carried an English comprehension passage which subscribed to the view that the man must be the head of the household—the lord and master—and the wife should be subservient, and she in turn could supervise the children and servants basking in his glory and frequently invoking fear of him. The breakdown of authority amongst teenagers had coincided with the emancipation of women…husband and wife argued now as equals and therefore the woman could not invoke fear as she herself had none anymore.

 I for one began to think this post could never be true..it was just some concoction that someone on the social media machine had come up with….but then that was what I had thought when a WhatsApp message had gone around warning that from the following day our 500 and 1000 rupee notes would no longer be legal tender. I have since lost my ability to instinctively judge real from fake posts.

This CBSE paper about the husband being lord and master was being sat by 15-16-year-olds across the country, and we are filling their heads with this sort of backward thinking? There was an uproar across the nation, and the apology that followed spoke nothing of the atrocious passage—instead it just spoke about standards not being adhered to and hence all students would be awarded an extra five marks. Clearly whoever set the paper agreed with this idea that women should not be equal to men.

Fortunately, the framers of our Constitution had a different outlook. They looked beyond the sex organs we were born with and guaranteed us all equality: political, legal and moral. Articles 14-18 of the Constitution provides for right to equality which is one of the six fundamental rights under Part 3 of the Constitution. Article 14 states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

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There can be no second-class citizens in a democracy. Briefly put, the democratic principle of political equality is that no one is born with the right to rule others; and no one is born with the obligation to political obedience. Also, each citizen is able to vote in elections and to stand for office. No one is to have more than one vote, and electoral districts are to have approximately the same population so that each vote counts roughly the same.

Legal equality means that all persons enjoy the equal protection of law. No one is to be discriminated against by law on account of accidents of birth, such as race, ethnicity, gender, ancestry or on account of personal choices, such as religion, group membership, or occupation. Moral equality gives each citizen equal concern and respect in the eyes of the law and in the policies of governments. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Sub-Clause (1) says that the State shall not discriminate on these grounds. Sub-Clause (3) empowers the State to make provisions for women and children, guaranteed in the Constitution for gender equality. The Indian Constitution enshrines the proposition of gender parity in its Directive Principles, Fundamental Duties, the Preamble and Fundamental Rights. The Indian Constitution guarantees women equal rights and authorises the centre to take effective inequity actions in supportof women.

Gender equality in India is something we badly need, but we are currently ranked 105 out of 136 nations polled by the World Economic Forum in 2011; India was positioned 113 on the gender gap index among 135 nations polled. There have been many initiatives by respective governments, post-Independence, to somehow bridge the gap in gender inequality. Under the Ministry of Women and Child Development, measures to ensure women are treated equally are enshrined in Swadhar and Short Stay Homes to give alleviation and restoration to women in distress as well as destitute women. Working women hostels have been set up to guarantee safe settlement for working women from their place of habitation.

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The Union Minister for Women and Child Development, Smriti Irani, introduced in the Lok Sabha, the Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to increase the age of marriage for women to 21 years across all religions. The Minister said the Bill will amend the provisions of the Indian Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act, 1936; the Muslim Personal Law Application Act, 1937; the Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969, in relation to the age of parties to the marriage. This move would bring the legal age of marriage for women at par with men which is 21 years.

The Bill provides that a child will be a “male or a female who has not completed twenty-one years of age.” The Bill also raises the time limit within which a party can file a petition to seek an annulment of a voidable marriage. Currently Section 3 of the Act prescribed a time limit of two years from attaining majority as the period during which a party that was a minor at the time of marriage can file a petition for a decree of nullity. The Amendment Bill seeks to raise this time limit to five years. This suggests that many existing inter-faith marriages could be heading for annulment.

Apart from continuing discrepancies with marriageable age under Muslim law (approximately 16 years), the Supreme Court has held that in case of a minor wife, the law recognises marital rape. Husbands of minor women cannot enjoy the blanket immunity that the Indian Penal Code provides to all other married men in Exception 2 to Section 375 against charges of marital rape.

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To add to this, inconsistencies continue to arise; In February this year, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man), holding that theirs was a legal marriage under personal law. The High Court examined provisions of the Prohibition of Child Marriage Act but held that since the special law does not override personal laws, Muslim law will prevail.

In other cases, however, the Karnataka and Gujarat High Courts have held that the 2006 special law would override personal laws and have sent the minor girl to a care facility.

The different ages of men and women to marry has been a subject of debate. The laws are ultimately rooted in patriarchy—the maturity level assumed of each gender, and that a man ought to complete college, while a woman need not as she will be at home raising the children.

In a consultation paper “Reform of Family Law” 2018, the Law Commission argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”. “The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals.” The Law Commission Paper noted that in 2014, in National Legal Services Authority of India vs Union of India, the Supreme Court while recognising transgenders as the third gender said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.” In 2019, in Joseph Shine vs Union of India, the Supreme Court decriminalised adultery and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.”

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The Paper concluded: “If a universal age for the majority is recognised, and that grants all citizens the right to choose their governments, surely, they must then be also considered capable of choosing their spouses”. According to the paper, the age of majority, 18 years, must be recognised uniformly as the legal age for marriage for men and women alike as per the 1875 Indian Majority Act. “The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals,” the Paper said.

The international treaty Committee on the Elimination of Discrimination against Women (CEDAW) also calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men.

CPI(M) leader Sitaram Yechury has said: “A woman at the age of 18 is legally an adult. For the purpose of marriage, treating her as a juvenile is self-contradictory and the proposal violates an adult’s right to make personal choices of her partner. This proposal deprives a woman of deciding the course of her life.”

In early 2021, hundreds of girls from the northern state of Haryana, which has one of the lowest gender ratios of females to males among Indian states, had written to Prime Minister Narendra Modi, urging him to raise the marriage age from 18 to 21 presumably to enable a college education. While this sounds excellent in principle, the reality is likely to be somewhat different. India is already struggling to stop child marriages, and now outlawing marriage until 21 years could make women even more of a burden than they are already perceived to be.

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According to a 2017 United Nations report, India was struggling to stop child marriages and improve the health of its mothers. During the months of lockdown from March to May 2020, a child helpline supported by the Ministry of Women and Child Development received over 5,200 calls of child marriage which they prevented. One wonders how many calls were never made.

A woman is legally considered an adult at the age of 18. Criminalising marriage below 21 is not women’s empowerment—it is a blow to her autonomy. An adult woman should be free to decide whom she wishes to marry without any repercussions. Effectively barring all love marriages between young adult couples will be the effect of this law.

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We are not alone in this 21 year age for marriage without parental consent…we are in the company of Bangladesh, Chad, China (22!), the Congo, Gabon, Indonesia, the Ivory Coast, and Hong Kong, Namibia, the Philippines, Swaziland, and Surinam. Most other countries in the world have 18 years as the legal marriageable age without parental consent.

Indian women are already pushing back. Channels like She The People are followed by many, and the message is clear that the age of patriarchy has its days numbered. Trying to exert control until a woman is 21 years will set the clock back. Punitive measures are completely unnecessary when the trend is already coming round to a later marriage—22.1 years in 2019. The logic remains unclear.

—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research inputs from Jumanah K and Karunya J