Himachal Pradesh Assembly has recently passed the Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024. This bill proposes increasing the minimum marriageable age for women from 18 to 21 years. The aim is to amend the Prohibition of Child Marriage Act, 2006 (PCMA 2006) to advance gender equality and promote higher education for women.
HP’s Bill on Women’s Minimum Marriage Age Entail
- Redefinition of ‘Child’: Section 2(a) of the 2006 Act defines a “child” as a male under 21 years of age or a female under 18 years of age.The Bill removes this gender-based distinction, defining a “child” as anyone under 21 years of age, irrespective of gender.
- Extension of Petition Period: The Bill also extends the time period for filing a petition to annul a marriage (to declare a marriage invalid and legally void). Under Section 3 of the 2006 Act, an individual who was a minor at the time of marriage can file for annulment within two years of attaining majority (before turning 20 for women and 23 for men). The Bill extends this period to five years, allowing both women and men to file petitions before they turn 23, in accordance with the new minimum marriageable age of 21 years.
- Precedence Over Other Laws: A new provision, Section 18A, ensures that the Bill’s provisions take precedence over existing laws and cultural practices, establishing a uniform minimum marriageable age across Himachal Pradesh.
Assent of the President Required
- Governor’s Options: Under Article 200 of the Constitution, after a Bill is passed by a State Legislative Assembly, the Governor can either grant assent, withhold assent, return the Bill for reconsideration, or reserve it for the President’s consideration. Bill is reserved for the President’s consideration if the Governor believes it could undermine the authority of the High Court or conflict with central laws.
- Inconsistency with Central Law: The Himachal Pradesh Bill proposes a different minimum marriageable age for women, potentially conflicting with the central PCMA, 2006.Constitutional Considerations: According to the Seventh Schedule of the Indian Constitution, marriage and divorce fall under the Entry 5 of this Concurrent List, allowing both central and state governments to regulate child marriages.However, if a state law conflicts with a central law, it may be deemed “void” unless it receives the President’s assent.Article 254 of the Constitution establishes the doctrine of repugnancy, which deals with the conflict between central and state laws.The Parliament has exclusive powers to make laws for matters in the Union List, while the state legislature has powers for matters in the State List. Both have powers for matters in the Concurrent List. Repugnancy arises when two laws are inconsistent, and if a state law is repugnant to a central law on a matter in the Concurrent List, the central law prevails, and the state law is void to the extent of the inconsistency.If the state law is reserved for the President and receives assent, it can prevail within the state, overriding the central law’s provisions in that state.
Concerns Regarding the HP’s Women’s Minimum Marriage Age Bill
- Legal Ambiguities: The proposed legal framework could create inconsistencies, such as permitting consensual sex from 18 but restricting marriage until 21.This discrepancy might lead to new issues, such as complications related to reproductive rights and legal status.Juvenile Justice Care and Protection and Integrated Child Protection Scheme provide support only up to age 18, leaving no space to support child brides/grooms aged 19-21.Critics raised concerns that it might also limit legal protections for women who marry before the age of 21 and could potentially lead to increased policing of affected communities.
- Opposition from Activists: Child and women’s rights activists argue that increasing the marriage age might inadvertently strengthen parental control and hinder the autonomy of young adults. They point out that the current law is sometimes misused to penalise daughters who choose partners against their families’ wishes.
Minimum Age for Marriage
- Preventing Child Marriages: The minimum age of marriage is set to prevent the abuse of minors and outlaw child marriages.
Legal Standards
- Hindu Marriage Act, 1955: Sets 18 years as the minimum age for brides and 21 for grooms.
- Islamic Law: Considers the marriage of a minor who has attained puberty as valid.
- Special Marriage Act, 1954 & Prohibition of Child Marriage Act (PCMA), 2006: Prescribe 18 years for women and 21 for men. PCMA 2006 also considers marriages below this age as “voidable” (something legal, but which can be annulled later by one party of a contract) only if contested.
- Alternative Recommendations: The 2008 Law Commission Report and the National Human Rights Commission’s 2018 proposal both recommended setting a uniform marriage age of 18 for both men and women, which some argue could be a more equitable solution.Various United Nations bodies, including the Committee on the Elimination of Discrimination Against Women, advocate for a minimum marriage age of 18 years for both men and women, as they should have attained full maturity and capacity to act before assuming the important responsibilities of marriage.