Child marriage

Child Marriages continue to be solemnized in a large number of countries. This practice is a serious threat to child protection with adverse impact on their education, health and empowerment. The presentation discusses different issues connected with the problem.

1. CHILD MARRIAGE A PRESENTATION IN CONTEXT OF STATUTORY LAW IN INDIA by Maj Gen Nilendra Kumar An effort for Bachpan Bachao Andolan and Lex Consilium Foundation

2. QUOTE “ While the husband is still declared by the statute to be the head of the family , he like the king of England is largely a figure head .” -Reginald L Hine , American Jurist

3. CHILD A person who, if a male, has not completed twenty one years of age and, if a female has not completed eighteen years of age.

4. WHAT IS CHILD MARRIAGE ? According to UNICEF, child marriage is a formal or informal union before the age of 18.

5. STATISTICS Worldwide , more than 700 million women alive in 2014 were married before their 18th birthday. Child marriage among girls is most common in South Asia and Sub-Saharan Africa. One third of the girls in developing countries are married before the age of 18, while about one in nine are married before attaining age 15.

6. FRAGILE STATES Eight out of ten countries with the highest child marriage rates are considered fragile states. Nigeria Central African Republic Chad Bangladesh Mali South Sudan Guinea Malawi

7. SOUTH ASIA South Asia is home to almost half (42%) of all child brides worldwide. India accounts for one third of the global total. Bangladesh has the highest rate of marriage involving girls under age 15.

8. POSITION IN INDIA India has the highest percentage of child brides in the world. About 47% of the girls get married before reaching the age of 18. 2011 Census data showed that 91% of all women were married by 25 years of age with an alarming rate of 30.2% girls who were married before the age of 18.

9. CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN ,1979 An International treaty adopted by United Nations General Assembly in 1979. It is described as an International bill of Rights for Women. It has 30 articles divided into 6 parts. Part IV (Articles 15 and 16) outline women’s rights to equality in marriage and family life along with the right to equality before law.

10. CEDAW was instituted on 3 rd September, 1981 and has been ratified by 189 states. Over 50 countries have ratified but with certain reservations, declarations and objections. US and Palau have signed the treaty but not ratified it.

11. ARTICLE 15 States Parties shall accord to women equality with men before the law. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.

12. ARTICLE 16(2) The betrothal and the marriage of a child shall have no legal effect and all necessary action including legislation shall be taken to specify a minimum age for marriage and to make the registration of marriage in an official registry compulsory.

13. CHILD MARRIAGE RESTRAINT ACT, 1929 ‘Child Marriage’ Section 2 Means a marriage to which either of the contracting parties is a child.

14. AVERAGE AGE AT MARRIAGE Hindu : 16.7 Muslim : 16.7 Sikh : 19.9 Christian : 20.6 Parsi : 20.8

15. B RIDE PRICE The Amount paid by the groom to the parents of a bride for them to consent to him marrying their daughter. In some countries, the younger the bride, the higher the price she may fetch. The practice creates an economic incentive whose girls are sought and married early by the family to the highest bidder. The girl’s side further harbours an apprehension that if the alliance is delayed the girl, may not find any takers.

16. OBSERVATIONS Poverty and marriage expenses including dowry often lead families to marry off their daughters as an early age to reduce these costs. Girls are often married to considerably older men. Girls are seen as a burden on their family. Marrying a daughter at a young age is viewed as a means to ease economic hardship by transferring this burden. Giving a daughter in marriage early allows parents to reduce family expenses by ensuring they have one less person to feed, clothe and educate.

17. CAUSES OF CHILD MARRIAGE Poverty Economic survival strategies Gender Inequality Sealing (confirming) land or property deals Settling disputes Control over sexuality and family honour Tradition and culture Insecurity, especially during wars, droughts, famines or epidemics

18. CONSEQUENCES OF CHILD MARRIAGE The couple are prevented from making important life decisions like : Basic freedom Opportunities for education Sustainable lively hood Accessing sexual health and rights

19. ILL EFFECTS OF CHILD MARRIAGE EDUCATION : The young bride is only able to study as much as her husband has. They often lack familial support to continue their education.

20. HEALTH HEALTH Forced sexual encounters lead to irreversible physical damage. The girls are three times more likely to experience marital rape. Girls below 15 are five times more likely to die during child birth than those in the 20’s. The infant mortality rate is very high. Young brides face a higher risk of contracting HIV and STD. Some of the young brides are sexually exploited by other men in the family and they are too scared to go out and complain. The inability of a woman to negotiate contraception use is a major issue.

21. LOSS OF LIVELIHOOD A key impact of child marriage is a woman’s ability to earn a living diminishes. This is so as they have to establish their fertility and credibility in their marital home. Reasons why child marriage take place Poverty Lack of Education Cultural Practice Insecurity of parents

22. HUMAN RIGHTS ISSUES IN CHILD MARRIAGE Issues of consent Age at marriage Legal issues

23. QUOTE “ Consent makes marriage ”. Latin Legal Phrase Lack of Consent Women continue to be married without consent , often girls are forced into sexual and domestic servitude.

24. CONVENTION ON CONSENT TO MARRIAGE , MINIMUM AGE FOR MARRIAGE AND REGISTRATION OF MARRIAGES, 1962 The Convention reaffirms the consensual nature of marriages and requires the parties to establish a minimum marriage age by law and to ensure the registration of marriages. The convention has to be signed by 16 countries and there are 55 parties to the convention. ARTICLE 1 No marriage shall be legally entered into without the full and free consent of both the parties, such consent to be expressed by them in person after the publicity and in the presence of the authority competent to solemnize the marriage and of witnesses , as prescribed by the law.

25. FORCED MARRIAGE A marriage where one or both of the parties cannot give free or valid consent to the marriage. It involves varying degree of force , coercion or deception , ranging from emotional pressure by family or community members to abduction and imprisonment . Forced marriage constitutes a human rights violation in and of itself.

26. ARRANGED MARRIAGE A marriage planned and agreed by the families or guardians of the couple concerned. It is a type of marital union where the bride and groom are selected by the families.

27. LEGAL ISSUES Right to express their views freely Right to protection from abuse Right to be protected from harmful traditional practices

28. THE PROHIBITION OF CHILD MARRIAGE ACT,2006 (6 of 2007 ) The object of the Act is to prohibit solemnization of child marriage connected and incidental matters. This Act is aimed with enabling provisions to prohibit child marriage, protect and provide relief to victim and enhance punishment for those who abet , promote or solemnize such marriage.

29. DEFINITIONS SECTION : 2 CHILD A child is a person who has not completed 21 years in case of male and 18 years in case of females. CHILD MARRIAGE A marriage to which either party is a child.

30. VOID & VOIDABLE MEANING Section 12 : Not a valid or legally binding. Section 3(1): Capable of being made void. A thing can become void but is not necessarily so .

31. VOIDABLE MARRIAGE Every child marriage is voidable at the option of the contracting party who was child at the time of solemnization of marriage. A degree of nullity can be obtained by such person by filing petition before the District Court for annulment of marriage within two years after attaining majority. While granting a decree ,the District Court shall make an order directing both parties and their parents or guardians to return to the other party money , gold , ornaments ,gifts and other valuables.

32. VOID AB INITIO Section 14: Means to be treated as invalid from the outset. NULL AND VOID Section 12 : Means canceled , invalid. This phrase is actually redundant , since null means void.

33. DEGREE OF NULLITY It is a judicial order determining in effect that the marriage in question never existed .It declares that the marriage is and has always been null and void.

34. SECTION : 9 Punishment for male adult marrying a child. Marriage between a child and a male adult above eighteen years of age. Attracts punishment of up to two years RI or fine up to rupees one lakh or both. COMMENTS Definition of a child under Sec 2(a) is for a male up to 21 years of age. Then it may be argued how is it that Section 9 views a male from 18 to 21 as an adult.

35. PUNISHMENTS Section 9 : Male adult marrying a child .Two years RI or fine up to one lakh rupees or both. Section 10 : For performing , conducting or directing or abetting any child marriage , unless he proves that he had reasons to believe it was not a child marriage. Two years RI or fine up to one lakh rupees or both .

36. Section 11 : For promoting , permitting or negligently failing to prevent it including attending or participating in it . Punishment same as in section 10. Provided that no woman shall be punishable with imprisonment. Section 13 (10) : Knowingly disregards an injunction prohibiting child marriage. Punishment same as in section 10. Provided that no imprisonment to a woman.

37. OFFENDERS Offenders under section 10 and/or 11 could include; The guardians/parents of both the parties Priests, relatives and friends of both parties Neighbours of both parties Community leaders who give patronage to such marriages Marriage bureaus/persons responsible for fixing such marriages Traffickers The bridegroom, if over 18 Caterers and other service providers

38. MARRIAGE OF A MINOR CHILD TO BE VOID IN CERTAIN CIRCUMSTANCES (Section 12) BEFORE Taken or enticed from the lawful guardian. Compelled by force or by deceitful means induced to go from any place . AFTER Sold , trafficked or used for immoral purposes . MARRIAGE

39. COMMENTS Law is silent as to : Who has to seek remedy? How? Who (which court) will decide What punishment would the conviction attract ? The text is merely declaratory. The procedural details for compliance are not shown.

40. COMMENTS A woman convicted for penal provisions under Section 11 and 13 (10) cannot be awarded imprisonment. However such a restriction is not in place for section 10 for no apparent logic , More so because offences are cognizable and non-bailable.

41. WHAT IS A FAMILY COURT? A court having jurisdiction over matters involving divorce, child custody and support, paternity, domestic violence and other family-law issues .

42. FAMILY COURTS set up under The Family Courts Acts, 1984 ( No. 66 of 1984) Established to promote conciliation in and secure speedy settlement of disputes relating to marriage ,family affairs and for matters connected therewith .

43. POSITION IN OTHER COUNTRIES PAKISTAN Child Marriage Restraint Act , 1929 Legal age for marriage is 16 for women and 18 for men. Penal Code has been amended to toughen punishment against child marriage. Offenders face a minimum five years prison term which could go up to ten years. Also a fine of up to Rupees 10 lakhs.

44. According to UNICEF data, 3 % of all girls were married before age 15, while 21% were married before 18. Child marriage is rooted in tradition and culture .It involves the transfer of money, settlement of debts or exchange of daughters sanctioned by a JIRGA or Panchayat .

45. The Council of Islamic ideology is a constitutional body set up to give Islamic legal advice to the government. According to it, Pakistani laws prohibiting child marriage are un- Islamic .

46. BRAZIL Brazil has highest absolute number of child brides in the Latin American region. It has 4 th highest absolute number of child brides worldwide. According to UNICEF 11% of all girls marry before attaining the age of 15 , while 36% marry by age of 18. The legal age of marriage for both men and woman in Brazil is 18. Marriage is allowed at age 16 with the consent of parents of both parties.

47. SUDAN Approximately every third girl is married before the age of 18. 7% of child marriages take place between children below the age of 15. According to law , a girl can be married once she hits puberty. A ten year old can also be married by the guardian with the permission of a judge.

48. The marriage of Non-Muslims Act of 1926 sets the age of marriage at 13 for Non-Muslims girls and 15 for Non-Muslims boys.

49. Child marriage among Syrian refugees in Jordan has more than doubled since the start of the conflict, leaving girls vulnerable to health problems, domestic abuse and poverty. Jordan is home to more than 6,00,000 registered Syrian refugees.

50. CHINA Arranged marriages, sometimes called blind marriages were the norm before the mid 20 th century .

51. UNITED STATES The age of marriage is 18 with two exceptions – Nebraska (19) & Mississippi (21). However most states have exceptions allowing marriage at younger age with parental consent , judicial approval in cases of pregnancy or in a combination of these situations.

52. QUOTE “ A Roman divorced from his wife was being highly blamed by his friend, who demanded ‘Was she not chaste? Was she not fair? Was she not fruitful?’ Holding out his shoe, the man asked them whether it was not new and well made. “Yet” added he, “none of you can tell where it pinches me . ” -PLUTARCH