How criminal law strategies have failed to control the abuses of child marriage in South Asia?
Child marriages in South Asia remain a major concern well into the 21st century. The religious and social customs that broadly dictate the norm especially in rural areas are largely at odds with the constitutional restraints in these countries. In India alone the figures for child marriages are as high as 57%, exceeded by both Nepal and Bangladesh with 63% and 75% respectively. In Pakistan as well the figures are alarmingly high, to the point that most women are believed to be married under the age of 18, but statistics stand undependable. Nevertheless while UNICEF reports quote these high figures, the very definition of a ‘child’ remains contentious as does the struggle in these countries to retain intimate aspects of their private sphere from international impositions devoid of cultural sensitivity.
Nevertheless, given that the South Asian countries continue to battle with high birth rates and health issues, the issue of child marriages, personal or impersonal, has severe ramifications on these societies at large. Even though child marriages are mostly performed under the garb of religious freedom, the actual factors mitigating these arrangements are socio-economic as opposed to popular belief. South Asian countries share the common British Child Marriage Restraint Act (1929), which made underage marriages voidable, but not void. This small technicality leaves the act less punishable and relieves the State of any duty towards forcibly putting an end to this practice.
According to the Hindu Marriage Act (1955), Section 5, among other conditions the permissible age for marriage has been defined as 18 for women and 21 for men. This secular law faced immense opposition from religious lobbies that emphasize the sacred nature of the bond of marriage which must not be interfered with. The ‘Khap Panchayats’ village councils in Northern India have ruled that girls should be married as soon as they hit puberty, to avoid ‘social corruption’; the state apparatuses lacking access to these rural pockets find it difficult and unfeasible to implement the writ of the State in certain far flung areas. India’s biggest failure in the fight against child marriages is the inability to pass the Marriage Bill (1994) which would have made registration of marriages legally binding. To date Indian Law does not authorize marriage as a matter of the State’s direct concern, making implementation of any restraints impossible.
Even though Pakistan is a signatory of the Universal Declaration of Human Rights, the legal age for marriage is defined as sixteen for women and eighteen for men, below both India and Bangladesh. Moreover the legal repercussions for those breaking those violating is a nominal Rs.1000 (equivalent to USD 10) and/ or simple imprisonment of up to one month. To make matters more worrisome, the Council for Islamic Ideology has recently stated that age restrictions to marriage are un-Islamic, and that the marriageable age according to Sharia is puberty. While women rights activists and women lawmakers have opposed these claims vehemently, the fact that Islamic bodies like CII and the Shariat Court have the power to shoot down any laws that contradict Islam, make legalisation of international standards an impossible task.
Compared to Pakistan, Bangladesh’s fight against discrimination with respect to forced marriages has been less overwhelmed by religious constraints or aspirations. Like India their government has raised the marriageable ages to 18 (women) and 21(men) in conformity with their international obligations . However even as a signatory of CEDAW, personal laws remain relevant in most instances. In 1998 Bangladesh became a signatory of the Convention on Consent to Marriage; the issue of child marriages in this case was left to the individual religious laws of the concerned communities. By doing so the State is giving precedence to locally set customs over internationally defined laws, and the marriageable ages in the constitution appear to paying lip service to the issue of child marriages.
Various questions regarding what is a child marriage and what should be the marriageable age have created contention in these societies. The strong presence of religious clerics coupled with a lack of education and socio-economic constraints the governments are handicapped in the department of stringent implementation. Both criminal procedures and laws have been designed for the benefit of the perpetrator with the intent of avoiding a severe social backlash.