Socio Project

CHILD MARRIAGE

MUSKAN SHARMA BA. LL.B. (S.F.) SEMESTER 2/YEAR 1 1

CONCEPT OF CHILD MARRIAGE The term ‘Child Marriage’ must be understood in its proper perspective as the two words are quite contradictory. Marriage is a formalized relationship with legal standing between an individual man and woman, in which sexual relationships are legitimized. Obviously, one would expect such a relationship only between two consenting adults. The term “child marriage”-that is marriage below the age of eighteen years-is used here for a number of reasons, the first being to emphasize the paradox in the prevalent practice of marrying young girls. Second, in India legislators, social workers, and law professionals refer to the practice by the term ‘child marriage’. Third, a girl below the age of eighteen years is treated as a ‘child’ for the purpose of marriage according to CMRA(Child Marriage Restraint Act). The Indian Majority Act, 1875, also defines the age of majority as eighteen years for the purpose of civil matters. Other terms used by the international community for child marriage are ‘early marriage’ or ‘forced marriage’. These terms have limitations. The term ‘early’ could be very subjective. Also, all child marriages are forced marriages but all forced marriages are not necessarily child marriages.

REASONS FOR CHILD MARRIAGE It is difficult to ascertain and determine the origin of the custom of child marriage. But it can be certainly attributed to a patriarchal structure of society. The institution of patriarchy operates in the name of culture for justifying child marriage of young girls. The following reasons identify socio-cultural barriers in postponing child marriages of girls:        

Institution of Patriarchy Control over Sexuality Malleability Lack of Alternatives to Child Marriage Lack of Awareness about Adverse Health Consequences Lack of Awareness of Law Lack of Political Commitment Miscellaneous causes like pressure from older members of the family, fear of not getting a suitable match,etc.

CONSEQUENCES OF CHILD MARRIAGE There are multiple consequences of child marriage in terms of the health and the social and economic situation of adolescent girls. Some of the consequences are as follows :  

Adolescent Fertility Maternal Mortality

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     

Maternal Morbidity1 STD and HIV/AIDS Unsafe Abortion Infant Mortality Impact on Mental Health Other consequences like limiting opportunities, lack of personality-development, lack of education, etc

FEMINIST METHOD Feminist legal analysis explores the social, economic, political and cultural factors that cause and reinforce women’s oppression. It seeks to reveal social structures, institutions, and relations that have made and continue to make women subordinate to men. It examines the particular ways in which the law has been informed by male norms, male experiences, male values, and male dominance2. In doing so, it tries to demonstrate the exclusion of women’s experiences from law and the ways in which law serves to reinforce stereotyped and patriarchal assumptions about women. At the same time, it also explores the extent to which law can be used to improve women’s position. Precisely for this reason, the practice of child marriage needs to be challenged within the feminist legal analysis. As against the traditional legal method, Katharine Bartlett’s feminist legal method ‘Asking the Woman Question’ as well as Denise Reaume’s conceptual analysis of women’s exclusion from law provides the best support for analysing child marriages from the feminist perspective for many reasons. For the analysis of any socio-legal issue, legal method is important because it shapes one’s views of the possibilities for legal practice and reform. Method ‘organises the appreciation of truth, it determines what counts as evidence and defines what it takes as verification’. However, feminist legal method is more relevant than the traditional legal method as it goes into deeper analysis of the issue from feminist perspectives. Traditional legal method operates within a highly structured framework, which offers little opportunity for fundamental questioning about the process of defining the issues, selecting relevant principles, and excluding irrelevant ideas. It places a high premium on the predictability, certainty and fixity of rules. On the other hand, feminist legal methods value rules of flexibility and ability to identify missing points of view. While using traditional legal method, lawyers examine the facts, determine what legal principles are relevant, and then apply those principles to the facts. Facts determine which rules are appropriate, and rules determine which facts are relevant. Feminists, in addition, use other methods by which they attempt to reveal those features of the traditional method that are suppressed or overlooked. They unmask the specific assumptions of class, gender, sexuality, and religion on which the law is often premised and confront the assumption of legal neutrality and objectivity, which often serves to mark these underlying assumptions.

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www.girlsnotbrides.org/child-marriage/india (last visited on 6th April; 2018) Jaya Sagde, Child Marriage in India 18 (Oxford University Press, 2012 edition)

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The traditional legal method defines its own boundaries. Questions which are inside the defined boundaries are addressed but those outside the boundaries are not ‘legal’ issues. It is structured in such a way that it is inaccessible to a feminist perspective and thus women’s life experiences are not relevant for it. On the other hand, feminist methods expand the traditional notion of legal relevance to be more sensitive to features of a case not reflected in the legal doctrine.

HUMAN RIGHTS APPROACH The practice of child marriage in India can be challenged from the human rights perspective for many reasons. Human rights law establishes a minimal order of forbearance or moral baseline to allow personal development through the pursuance of individual goals. The human rights discourse offers a significant vocabulary to formulate political and social grievances. It lends legitimacy to political demands since it is already accepted by most governments and brings with it established protocols3. It is a powerful tool to denounce those acts of omission and commission on the part of the state that transgress against the essence of humanness. Human rights law does have an impact on the behaviour of persons inside and outside of government, as over the last fifty years there has developed an international climate that is less willing to tolerate abuses and more willing to protect human rights. Individuals expect protection from the state; indeed, one of its fundamental purposes is to provide institutional and other means to ensure the safety and well-being of those within its power. When the state violates human rights, these are the wrongs committed not only against the individual victims but also against the social order and add an element of indignity and frustration. Therefore, the use of human rights arguments along with the constitutional provisions in the national forum can help remedy the injustice. It can have a deterrent effect on those who commit violations and may thereby deter future violations. The compliance with human rights norms by the national judiciary can also help to lead to a positive perception of judicial legitimacy and influence the promotion of the rule of law. The human rights approach offers a more complete analysis to the issue of child marriage than the demographic, population, and health approaches as they focus more on the social impact of child marriage than on the life of a girl child4. A human rights approach requires a holistic analysis of the causes and consequences of child marriage. It requires child marriage to be seen as a discrimination against girls. It also requires that family concerns regarded as private matters be understood as public matters. It insists that child marriage must be seen as part of a larger social agenda of any society that is committed to recognizing the full potential of all its members without any discrimination.

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www.researchgate.net/publication/314081705_Eliminating_Child_marriages_in_India_progress_and_prospec ts (Last visited on 6th april;2018) 4 www.iheu.org/child-marriage-violation-human-rights/ (last visited on 6th april:2018)

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Child marriage violates the standards set out in the major international human rights instruments. International human rights law has not been applied effectively to redress the disadvantages and injustices experienced by women when they are married off as children. The reason for such failure are complex. They include lack of understanding of systematic nature of the subordination of women, failure to recognise the need to characterise the subordination of women as a human rights violation, and lack of state practice to condemn discrimination against women. The exclusion of women’s experiences on the ground of gender becomes the basis upon which violence against them is tolerated. The lack of understanding of women’s human rights is reflected in the fact that governments are not fully committed to women’s equality as a basic human right. Women’s subordination runs so deep that it is still viewed as inevitable or natural rather than as a politically constructed reality maintained by patriarchal interests, ideology, and institutions. The distinction between private and public spheres is often used to justify female subordination and to exclude human rights abuse in the home from public scrutiny. The Indian State has neglected to comply with its obligations under the major international conventions viz., the International Covenant on Civil and Political Rights, 1966 (ICCPR), the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (the Women’s convention), the Convention on the Rights of the Child, 1989( the Children’s Convention), the Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962 (the Marriage Convention) and the Supplementary Convention on the Abolition of Slavery, the Slave trade, and Institutions and Practices Similar to Slavery, 1956 (the Slavery Convention). Various rights recognised under all these conventions that are violated by Child Marriage are the right to equality on grounds of sex and age, right to marry and found a family, right to life and survival, right to liberty and security, right to the highest attainable standard of health, right to information, right to education and development, and right to be free from slavery.

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CONCLUSION Law must have a role in effecting social change. If it is not harnessed in support of progress, it obstructs attempts to redress patriarchy. Unless the law articulates and recognizes the rights of people, redressal of violation of human rights is difficult. From this perspective, law must be seen as empowering. However, the programme of using the law in support of a change is a complex process and, in the final analysis, is only one element, though an important one, of a necessarily multi-faceted approach. One needs to adopt more realistic appraisal of the limitations of the law. The myths that presently imbue law with its apparent sanctity must be abandoned. Therefore, along with the reforms in the existing law, a movement creating a legal culture, making the active agent sensitive to the consequences of child marriage, and furnishing meaningful viable alternatives to young girls, is required to be built up. The responsibility for this lies with civil society. The effectiveness of law depends upon a number of factors. Commitment of the government by employing effective enforcement machinery to control the mischief that law is trying to correct and legitimacy of law are two major factors responsible. In the context of social legislation, the success of the law also depends upon the extent to which the beneficiaries of the law are in a position to make use of that law. However, people’s awareness of the law, their access to it and the capacity to use it with confidence are essential prerequisites for its effectiveness. For such a law to be effective, it must be backed by sufficient supportive alternatives. And lastly, when the beneficiaries of such a law are children, there is an obligation on the adults to comply with the provisions of that law.

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