Every prudent citizen of our country is unable to understand the rationale behind the different permissible age of marriage of a boy and a girl under the prevalent law. When it is admission to school/ college, entrance to a competitive exam, enrollment as a voter or the eligible age to become a MLA/ MP, there is no distinction made between the two genders. The question therefore validly arises as to why this distinction has been by our lawmakers in this regard.

The Apex Court has very recently issued notice on a Petition seeking to remove the gender inequality which presently exists in legally permissible age of men & women. It is noteworthy that under the prevalent legal framework a girl is allowed to marry at the age of 18 years whereas boys cannot enter the wedlock before the age of 21 years. This according to the petitioner aggravates the gender inequality in a marital relationship and is discriminatory and hit by Article 14 of the Constitution. It is also pleaded that the distinction is based on patriarchal stereotypes, has no scientific backing, perpetrates de jure and de facto inequality against women, and goes completely against the global trends.

The Petitioner had earlier filed a writ petition in the Delhi High Court in August 2019 wherein the issue is still sub judice. One another similar petition is pending in the Rajasthan High Court filed by a different Petitioner. Both petitions have univocally pleaded that the different ages prescribed for marriage is violative of the Fundamental Rights of Equality (Article 14), Protection against Discrimination (Article 15), and Dignity of Life (Article 21) of citizens. It was also petitioned that this distinction was categorically against our country's commitment in the convention on elimination of all forms of discrimination against women.

The present Petitioner approached the Apex Court under Article 139A for transfer of both the pending matters to itself as both the petitions pending in 2 different High Courts are similar and involve similar substantial question of law and prayed for deciding the similar question of law arising in both the petitions together & finally by the highest court.

It is pertinent that in majority of the countries across the globe, there is uniformity in minimum age of marriage for boys and girls. It is also worth mentioning that under the Hindu Marriage Act, Special Marriage Act, Indian Christian Marriage Act & the Parsi Marriage and Divorce Act, the marriageable age for men and women in our country is 21 and 18 years respectively. It is also undisputingly true that if the minimum age for marriage of girls is increased to 21 years, the girls will get more opportunities to pursue their education, employment, business/profession unhindered by compulsion from the parents & family for early marriage. The uniformity in marriageable age would also foster equality and better understanding amongst the couple.

If we trace our legal history, the restriction of minimum age of marriage was prescribed to essentially outlaw child marriages and prevent abuse of minors. In the case of Hindus, Section 5(iii) of the Hindu Marriage Act, 1955 sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom. It is pertinent that Child marriages are not illegal but can be declared void at the request of the minor in the marriage. In Islam, the marriage of a minor who has attained puberty is considered valid under personal law. The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively.

There appears no rationale behind having two different permissible ages of marriage between the two genders. It is often debated that the different legal standards for the age of men and women are not justifiable. The Law Commission in a consultation paper for reform in family law in 2018 had observed that having different legal standards in permissible age of marriage is based on the false conviction that wives must be younger to their husbands. It is also a wrong notion that women are more mature than men of the same age and therefore the girls should be considerably younger to the boys at the time of marriage. It is also an erroneous assumption that women have a different physical or intellectual rate of growth than men.

The Law Commission paper had recommended that spouses entering into a marriage are in all respects equal and their partnership must be of based on Equality. The Courts too have always propagated the principles of equality amongst both the genders and have denounced Discrimination between genders in practice & laws.

In the case of Government of Andhra Pradesh vs. P.B. Vijaykumar & Ors. AIR 1995 SC 1648, the Supreme Court has, while upholding affirmative action and reservation of jobs for women in public employment, observed that, an important limb of the concept of Gender Equality is creating job opportunities for women. While examining the interplay between Article 15(3) and the Constitution’s other equality guarantees, the Supreme Court held that, this concept of protective discrimination needs to be woven throughout the web and fabric of its decisions.

In Charu Khurana and Others vs. Union of India 2015 (1) SCC 192, the Apex Court has once again expounded the concept of Gender Justice by observing that, though there has been formal removal of institutionalized discrimination, yet, the mind set and attitude ingrained in the subconscious have not been erased.

On the issue of equal pay for equal work, the Apex Court has in the case of Associate Banks Officers’ Association Vs. State Bank of India, AIR 1998 SC 32 upheld the Equal Remuneration Act and held that, women workers are in no way inferior to their male counterparts. Hence, there should be no discrimination on the ground of sex against women in payment of remuneration.

It would be trite to refer to the Apex Court's dictum in National Legal Services Authority of India v Union of India, AIR 2014 SC 1863 the Apex Court while recognizing transgender 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.

It would be relevant to refer to the Apex Court's judgment in Joseph Shine v Union of India 2018 SCC Online SC 1676 wherein the Apex Court decriminalized adultery and said that a law that treats women differently based on gender stereotypes is an affront to women’s dignity.

There is certainly a need to increase the age of marriage for women from 18 to 21. With change in time, thinking, education, careers & opportunities, the aspirations of girls have undergone a sea-change. Gone are the days when the ultimate goal of a girl's life was marriage & rearing up a family. The world of today has given Equal Opportunities to girls and in-fact the girls have outclassed boys in all spheres including education. The number of girls qualifying in Civil Services is multiplying. The girls have also got a grand entry in the Defence services.

It is opportune time that the legal age of marriage of girls is increased from 18 to 21 years bringing them in parity with the boys. This cannot be done without a new stricter law with better implementation than the existing one. In-fact, the marriage below the age of 21 should be made 'void' & not 'voidable'.

The present Government is committed to bringing Equality between the genders and the FM during the budget session in 2020 had announced that a committee would be set up for recommending about the age of marriage for women in the changing scenario. The Ministry of Women and Child Development has also constituted a high-level committee which is likely to revise the legal age of marriage for women from 18 years to 21 years and bring parity between the legal age of marriage for men and women.

It is apposite to point out that the minimum age of marriage for women was increased in 1978 by an amendment in the Sarda Act. The social values, the education system, the opportunities have all grown in leaps & bounds and the position of women has changed from ' home maker' to ' nation builder'. Our country has streamed ahead in the last 42 years of bringing this amendment. The age of marriage needs to be increased keeping in mind the health hazards & nutrition issues associated with early motherhood and the adverse impact of age of early marriage on fertility rate, infant mortality rate & maternal mortality rate.

The increase of the minimum age of girls from present 18 years to 21 years is also warranted to provide Economic Independence to girls. It cannot be disputed that early marriage of women deprives them of proper education and job prospects and thus hampers & impediments their economic independence. Limiting economic independence for women pushes them into a cycle of poverty and limits their opportunities in life to live with pride & dignity enshrined in Article 21 of the Constitution.

The Apex Court is seized of the matter and would soon decide the issue whether the difference in minimum age of marriage is violative of Articles 14, 15 & 21 of the Constitution. However, it is a matter of 'Public Policy' and the Government should come out with requisite amendments to put an end to this disparity. The Apex Court has time & again observed that it can only interpret Laws but it is the Legislature which is to legislate laws. The present Government should introduce a Bill to bring in the much needed & much awaited amendments to bring uniform minimum age for marriage by increasing the minimum age of marriage of girls to 21 years.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]