In the late nineteenth and early twentieth centuries, defining the age of consent and the legal minimum age of marriage became a central point of conflict between colonial ideology and the nationalist movement[1]. This tension shaped the nationalist movement's construction of an ideal Indian womanhood[2]. The landmark case of Dadaji Bhikaji v Rukhmabai[3] (1884), where 22- year-old Rukhmabai refused to consummate her marriage arranged when she was 11, became a catalyst for change. This resulted in The Age of Consent Act of 1891, which increased the minimum age of a 'consenting' bride from 10 to 12 years, regardless of marital status and violations were punishable as rape.

However, the Act did not directly address the legal age of marriage. Thereafter Joshi Committee was formed to provide recommendations on both the legal age of consent and marriage for men and women in British India. This led to enactment of the Child Marriage Restraint Act of 1929, commonly referred to as the Sarda Act, which established the minimum marriageable age for girls at 14 years and for boys at 18 years. In 1978, these ages were revised to 18 for girls and 21 for boys. The Prohibition of Child Marriage Act (PCMA) of 2006, while maintaining these age limits, replaced the CMRA of 1929 and focused on preventative measures. This minimum age is going to witness a change with passing of The Prohibition of Child Marriage (Amendment) Bill, 2021

The Ministry of Women and Child Development constituted a task group[4] in June 2020 headed by Jaya Jaitly along and secretaries of several other ministries to investigate the (i) health, medical well-being, and nutritional status of mother and child, during pregnancy, birth and thereafter, (ii) key parameters such as Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR), Total Fertility Rate (TFR), (iii) any other relevant points pertaining to health and nutrition in this context.

Following were the recommendations of the committee.[5]

After taking into account the recommendations of the Task Force and other aspects, the Ministry of Women and Child Development has introduced ‘The Prohibition of Child Marriage (Amendment) Bill, 2021’ in the Parliament on 21.12.2021 for raising the minimum age of marriage of women to 21 years to make it at par with that of men(Annual report)

The Bill would amend:

The aforesaid Bill has been referred to the Parliamentary Standing Committee on Education, Women, Children, Youth and Sports (EWCY&S).

Praising this move, a report prepared by the State Bank of India suggests that by increasing the legal age of marriage for women, the percentage of females enrolled for graduation will increase by 5-7%[10]. In a consultation paper of reform in family law in 2008[11], the Law Commission argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”. This bill seeks to eradicate such stereotypes and bring in gender neutrality. This bill can tackle additional gender disparities, including girls being withdrawn from education for marriage, health hazards associated with early pregnancies such as maternal and neonatal mortality, and the significant challenge of girls being ill-prepared to raise children when they themselves are not fully physically and mentally developed.

Section 3 of The Majority Act, 1875[15] defines Major as any person who have attained age of eighteen.Raising minimum will affect the rights and responsibilities of people. Many international organizations, including UNICEF, define a minor as anyone under 18, and thus classify any marriage below this age as child marriage[16]. This proposed law change contradicts this widely accepted definition. Additionally, Indian laws such as the Juvenile Justice Act, various labor laws, and the POSCO Act[17], all define a child as being under 18. Furthermore, the Supreme Court, in the Independent Thought case[18], and the CEDAW Committee[19] also endorse 18 as the appropriate age of marriage. It's illogical that the law deems individuals mature enough at 18 to vote, enter contracts, start businesses, manage finances, and drive, yet not mature enough to make the significant decision of marriage.

The proposed bill restricts the freedom to marry. The Supreme Court in the KS Puttaswamy[20] judgment, recognized the right to privacy as a fundamental right, including the right to choose a life partner and decide on family planning. The proposed reform could potentially delay the ability of girls from strict, regressive, and patriarchal households to marry a man of their choice until they reach the age of 21. During this additional waiting period, families and society might exploit the situation to further intimidate and exert control over these young women. It would also lead to an increase in the parental backlash against young adults who choose to marry against their parents’ wishes and would also result in a criminalization of consensual sexual activity. Scholars like Flavia Agnes[21] criticize the bill, arguing that it reinforces patriarchal control by allowing paternal and state power to work together, potentially leading to increased violence against women who exercise their autonomy in choosing to marry, ex: Hadiya case. In 2018, the Supreme Court, while reading down Section 377 of the Indian Penal Code, 1860, ruled that consensual sex between consenting adults is a fundamental right under Articles 14, 15, 19 and 21 of the Constitution[22]. If this Bill were passed, it would be legal to have sexual relations but illegal to marry for those between the ages of 18 and 21 years. Additionally, this bill faced criticism on procedural grounds as the 31-member parliamentary panel assigned to examine it included only one woman member. This raised significant concerns, as having just one woman on the panel was deemed highly questionable for a bill that assess issues affecting women.

In rural areas, the circumstances are especially challenging, where girls are viewed as a financial burden and the preference for having a son remains prevalent[23]. Mary E. John, who submitted a memorandum to the task force, believes that simply increasing the legal age of marriage for women does not automatically result in improved opportunities and decision-making abilities[24]. Merely raising the age limit doesn't lead to significant improvements if the necessary support infrastructure for women is lacking. It can create confusion for example recent news where in Hyderabad, Muslim families are hurrying to marry off their daughters upon learning about a forthcoming law aimed at raising the minimum marriage age for girls to 21 years. The situation became so intense that families lined up to conduct these marriages before the law takes effect[25].

Child and women's rights advocates, along with population and family planning experts, oppose raising the marriage age for women. They believe it would push many into illegal marriages. The India Child Protection Forum also objects, arguing it would criminalize young couples, particularly those marrying against their parents' wishes. A lot more marriages will be considered underage marriages, it will create creating a situation where it will criminalize a lot more families for getting their daughters married at a young age,especially people from poor and marginalized communities. This law could be used as a tool by those in power within a village to unfairly target and oppress marginalized groups, specifically children from Dalit and Adivasi families[30]. The advisory group that submitted its report to task force stated that if age of marriage be raised to 21 years, no less than 56% of the women (in the 20-24 year age group of NFHS IV) who married below this age – and their families – would be turned into criminals overnight[31]. Moreover, this proportion is as high as 75% amongst the poorest twenty percent of the population[32]. The cases of female foeticide might increase because the parents would be more burdened by girl children if marriageable age increases.

According to official data from 2019, the average age at which women marry is 22.1 years. This age has gradually risen over time, reflecting a voluntary trend. The increase is largely attributed to improvements in women's educational levels[33]. Consequently, addressing the issues targeted by the proposed amendment may be more effectively achieved by enhancing girls' education, running education awareness programs in communities with low female education rates, and educating young students of both genders about the importance of financial independence and the risks of teenage pregnancy.

In 2020, UNICEF recommended setting the minimum marriage age at 18 for both males and females, based on the rationale that individuals are emotionally, physically, and mentally mature enough to marry at that age. Additionally, the United Nations Convention on the Rights of the Child supported this recommendation, arguing that the marriage age should align with the age of majority[34]. Furthermore, in 2018, the Law Commission of India endorsed this recommended age, noting the lack of scientific evidence for different marriage ages and emphasizing that reaching the age of majority grants citizens the right to vote, suggesting that the legal marriage age should also be 18. It's imperative to tackle the root causes contributing to India's status as the country with the largest number of child brides globally, accounting for approximately one third of the total[35]. These include family poverty, societal insecurity, denial of inheritance rights for females, reluctance to educate girls, adherence to societal customs and traditions, and the perpetuation of patriarchal systems.

Despite the existing Act, the government’s National Family Health Survey-4 (2015-16)[36], estimated that about one in four young women in the country have been married before 18 years of age. The existing PCMA Act lacks effective social mechanisms and sufficient legal remedies. Simply increasing the age of marriage does not address these significant issues and is unlikely to yield the desired outcomes. Despite calls from activists and scholars to declare child marriages void, they remain voidable at the discretion of the underage party, contributing to ongoing challenges with compliance[37]. Furthermore, the PCMA fails to penalize officers for neglecting their duties, resulting in a lack of accountability and hindrance to social justice for children. The government should implement measures to mandate marriage registration across all states, enabling the collection of precise data regarding early marriages. Although child marriage is deeply ingrained within socio-economic structures, solutions are often sought within legal frameworks. Contemporary efforts must be situated within ongoing structural changes in economic, cultural, and social frameworks[38].Thus instead of increasing legal age of marriage age, there is need to improve socio-economic indicators and efforts have to be made that existing laws are implemented effectively so that women can apply their agency freely and achieve equality, liberty and dignity in true sense of terms.

Ecowrap, ‘Increasing the Legal Age of Women Marriage: A Dominant Strategy For Societal Good, Financially Empowering Women’ State Bank of India 3 (22 October 2020)

¹ Flavia Agnes, ‘Controversy over Age of Consent’ (2013) 48(29) Economic and Political Weekly 10,

¹ Government of India, Law Commission of India, “Proposal to amend the prohibition of Child Marriage Act, 2006 and other allied laws, Report no. 205, February 2008

¹ https://www.thestatesman.com/india/unprecedented-rush-marriages-among-muslims- hyderabad-1503036667.html

ORGS-AND-REPS-June-25-2020.pdf (pldindia.org)

¹ P.H. Nguyen, ‘Social, Biological, andProgrammatic Factors Linking Adolescent Pregnancy and Early Childhood Undernutrition (2019) 3 The Lancet Child and Adolescent Health 463– 473.

¹ PRS India, https://prsindia.org/billtrack/the-prohibition-of-child-marriage-amendment-bill- 2021

¹ Shireen J. Jejeebhoy, Ending Child Marriage in India, Drivers and Strategies (New Delhi, Aparna Mitra, ‘Son Preference in India: Implications for Gender Development’ (2014) 48(4) Bandita Sahoo, '18 v 21: AN ANALYSIS OF MARRIAGEABLE AGE IN INDIA' [2022]

2(3) Journal of Legal Research and Juridical Sciences 7 https://pib.gov.in/PressReleasePage.aspx?PRID=1629832 Journal of Economic Issues 1021

Megan Arthur “Child Marriage Laws around the World: Minimum Marriage Age, Legal Exceptions, and Gender Disparities.” Journal of women, politics & policy vol. 39,1 51-74. 22 Nov. 2017

ORGS-AND-REPS-June-25-2020.pdf (pldindia.org)

Sakshi Singh, 'PROHIBITION OF CHILD MARRIAGE :AN ANALYTICAL STUDY'

[2022] 1(3) Indian Journal of Contemporary Legal and Social Issues 5

Sonalde desai, 'Gender Scripts And Age At Marriage In India, [2010] 47(3) Demography 672

Protection Of Children From Sexual Harassment Act, 2012 THE MAJORITY ACT, ACT NO. 9 OF 1875

The Prohibition Of Child Marriage Act 2006, S 3(1)

¹ Ashwini Kumar Upadhayay vs. Union of India Writ Petition (C) No. of 2019

¹ Dadaji Bhikaji vs. Rukhmabai (21.09.1885 - BOMHC) :MANU/MH/0047/1885

¹ Joseph Shine v. Union of India, Writ Petition (C) No. 194 of 2018

¹ Joseph Shine v. Union of India, Writ Petition (C) No. 194 of 2018

¹ K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., MANU/SC/0911/2017 ¹ K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., MANU/SC/0911/2017 ¹ Shafin Jahan vs Ashokan and OthersAIR 2018 SC 1933

¹ Shakti Vahini v Union of India and others(2018) 7 SCC 192

¹ State of Bombay v. Narasu Appa Mali [AIR (1952) Bom 84]