Child Marriage and the evolution of its legal perspective

Background:

Based on the United Nations (UN) Convention on the Rights of the Child, child marriage refers to marriage under the age of 18 (UN2000). Marriage before the age of 18 is a fundamental human rights violation. It is particularly affect young girls who are much more likely to be married as children than young boys (UNICEF 2005). At early of nineteen century girls were married very young i.e., between the ages of five years to ten years, having no opportunity for the improvement of their physical or mental self. It might be considered that since girls did not go to school and had no social existence, they were married at young age. It also helped to secure their purity. Parents were arranged these marriage and didn’t have any opportunity to meet brides and groom before the marriage ceremony. Early marriage was convenient because the younger a girl the easier her adjustment to the new environment (in laws’ family). The custom involved a number of abuses. The awareness of the importance of marriage and its responsibilities were fully absent in such marriages. For the child-wife, marriage was associated with beautiful dresses, sweets, fireworks and the center of attraction for a few days. After the marriage her companions, most often were a husband who was much older in age or a few elderly women in the house. Thus the girl child from the moment of her birth to her death undergoes one continuous life long suffering as a child-wife, as a child-mother and very often as a child-widow. During that time there were no legal probation against this type of inhuman practice. But in 21st century the state has developed law, policy and have law enforcement department, but still the practice of early marriage is happening in our society.

Child marriage and its situation:

National and International communities are increasingly recognizing child marriage as a serious problem, both as a violation of girls’ human rights and as an obstacle to attain the key development outcome. Bangladesh is a developing country moving forward with a lot of difficulties. In spite of significant progress in improving gender equality and declining poverty in recent years, Bangladesh has one of the highest rates of child marriage among girls in the world: 66% girls marry off before their 18 birthday (UNICEF) whereas the South Asian Initiatives Violence Against Children (SAIEVAC) has recently estimated that 70% of Bangladeshi girls are married off below the age of 16 and an estimated 90% of rural girls are married before the age of 18 with an expectation to get a baby in the following year or two. According to Plan international Bangladesh has one of the highest rates of child marriage in the world: 64% women currently aged 20-24 were married before their age of 18. On the other hand a fact sheet published by Girls Not Brides (GNB) revealed that 65% (3rd position in the world) girls in Bangladesh married before reaching their 18 birthday and 29% (2nd position in the world) before their 15 years of age. The situation of child marriage in Bangladesh is alarming and has created barrier to achieve the Sustainable Development Goal (SDG).

The elements of child marriage:

In general parents think that marriage will secure their daughter’s future. That is why they try to marry off their daughter early. After the birth of a girl child, parents start to wait for a groom who is economically solvent and as soon as they find out such type of groom, they don’t want to delay. In most of the rural village in Bangladesh, bride’s parents like expatriates mostly as their son in law and it was noted from an interview with some parents of teenage girls in a remote village. Even they never think about the age difference of their daughter and the groom. Besides I have seen that an expatriate with 40 years of age has married a 14 years old girl. Some parents feel that the feeding and up keeping a girl is not economically fruitful as she is not likely to bring any return to their household. The size of family often leads to a shortage of food and the girls are firs to be jettisoned. So early marriage allows parents to reduce family expenses by ensuring one less person to feed, clothe and educate. Parents are not agree to spend money for the education of girls rather they spent for son who in future will take the lead of the family. Though the dowry is illegal in Bangladesh, people pay it as a gift. According to their thought, dowry is something that comes as a demand from in-laws family. If you don’t make any demand and your in-laws willingly give you something, that is gift. Dowry price increases if girls get old that pushes parents to marry off their daughter as early as possible.

Child marriage is a traditional practice that, in many places like Bangladesh, happens today simply because it has happened for generations and straying from tradition could mean exclusion from the society. Sometimes grandfather or grandmother wish to see their granddaughter to be married, whatever her age, that’s not a consideration. In that case the notion of religious and discriminatory tradition and customary practice are liable. Marriages may be used to consolidate family ties or settle feuds. Still in rural village political leader settle marriage with the family of opposition party for the purpose of conflict regulation. Families may also marry daughters off to get relief from the risk of losing honor through pre-marital sexual activity or affairs. Many families believe that their daughter would be better off being married as her future will be secured by her husband.

Consequences of child marriage:

• The practice of child marriage was responsible for the high rate of infant mortality. “Children born every year, only about half of the number reach the age of 30 years” (Fuller). The custom was answerable for millions of widows in the country, abnormal deliveries, prolonged illness of mother after confinement, unfruitfulness in some cases and prolonged debility or chronic diseases in others.


• Girls who marry before 18 are more likely to experience sexual and domestic violence than those who marry later. Those girls are not able to talk to their husband about the use of contraception during sex. Even they cannot protect them from forced sex by their husband. They believe that a man have the right to sex with her without her consent.


• Child marriage limit young brides skill, resources, knowledge and mobility that make them more vulnerable to domestic violence by the member of her in laws house. Abandonment of wife and second wife cases are common in early marriage, as most case child brides are not able to maintain her family well.


• If a girl marry before the age of 18, she drop out from her school and in most case they don’t get further opportunity to continue her education from her in laws house though education helps improving girl’s income earning potentials and socio economic status.


• Early marriage leads to early pregnancy, as the girls are expected to give birth within the first year of marriage. They are expected to have as many children as their husbands want, regardless of the girls’ wishes or the threat that early pregnancy poses to their health and life. One third of teenage girls aged 15 to 19 are mothers or are already pregnant in Bangladesh. Adolescent mothers are significantly more likely to suffer from birthing complications than adult women. In fact, early marriages are considered the most important factor standing in the way of a breakthrough in maternal mortality reduction. As a result, child brides typically end up having many children to care for while still young.


• Adolescence is the transitional stage for changing behavior, values, beliefs and attitudes. It is also the prime period of developing knowledge of sexuality. The girls, but also their spouses, enter marriage without having received any significant SRHR education, either from parents, siblings or teachers. For information they can only turn to their peers or quacks, which lead to the dissemination of serious misconception.

Early attempts against early marriage:

In 1860 the social reform movement for the freedom of women was set in motion by Raja Rammohan Roy who stood on the threshold of the old and the new. He interpreted the East in the light of the West. He was a socio-religious reformer, a politician and an educationist. Rammohan Roy was the first man who advocated the cause of women. Associations like the Brahmo Samaj and the Arya Samaj took up the cause of child marriage. There was the need of a special law to save the child brides from physical sufferings and harassment from the hands of the husband and his family. It was at the instance of Ishwar Chandra Vidyasagar that the first step was taken in this direction in 1860. The Indian Penal Code prohibited the consummation of marriage if the girl was less than ten years old. This age was considered low by later reformers like Keshab Chandra Sen and Behramji Malabari. Keshab Chandra Sen of the Brahmo Samaj introduced a novel marriage ceremony whereby the consent of the groom and bride had to be secured. It was a step toward the recognition of women’s uniqueness and marriage ceased to be a contract between the parents. Moreover, marriage ceremony could then be performed without any restrictions of caste, belief or religion. Sen also issued circulars to the medical authorities with a view to determining the marriageable age. Thus he initiated propaganda against child marriage. The marriageable age fixed under the Brahmo Act 1872, as it later came to be known the Native Marriage Act, for girls was 14 years and for boys was18 years. Under this Act, bigamy, polygamy and infant marriages were made impossible. Sen wanted to promote social reforms through schools and organizations which would educate people against social harms. Malabari was another social reformer of this time. He took up the cause of enforced widowhood and child marriage in the nineties of the last century. He started the movement against this evil all over India. He published a pamphlet entitled “Infant Marriage and Enforced Widowhood”.

Another event which accelerated legislations on the subject was the lawful case of Phulmani Dasi, a child aged 11 years who was married to a 35 years old adult husband. He raped her, as a result of which she died. The death of Phulmani Dasi was an important factor in forcing the lady doctors to send a memorandum to the Government requesting suitable legislation to prevent child marriages. This request was supported by 1,500 Indian women who sent a representation to Queen Victoria pleading similar reforms. On the recommendations of this committee in March 1891 the Age of Consent Bill was passed by the Government whereby cohabitation with a wife under the age of 12 years was prohibited.

Child marriage restraint act-1929:

British India government, under the pressure of the world opinion, the social reformist in India and Nationalist freedom fighters, referred the Sharda's Bill (Hindu Child Marriage Bill) to a select committee of ten headed by Sir Moropant Visavanath Joshi. Women's Indian Association and National Council of Women in India, through their members developed and articulated the argument in favor of raising of the age for marriage and consent before the Joshi Committee. Even the Muslim women represented to the Joshi Committee. Child Marriage Restraint Act 1929, passed on 28 September 1929 in the British India Council of India, fixed the age of marriage for girls at 14 years and boys at 18 years. It is popularly known as the Sarda Act, after its sponsor Harbilas Sarda. It came into effect six months later on April 1, 1930. The main aim of the act is to restrain the solemnization of child marriages in India and it applies to all classes of people throughout British India. The Act prohibits the marriage of Boys below 18 years and girls below 14 years of age. Male above 18 below 21 years, punishable with the fine of Rs.1,000 those who contracts child marriage. Clause 5 of the act, insist the persons engaged or parents/guardians are punishable with fine of Rs.1,000. But the impact of the social reality and notions that the child marriage were made neither void nor voidable, but once performed they were perfectly valid.

International legal framework and Bangladesh to restrain child marriage

The Universal Declaration of Human Rights-1948:

The Declaration was drafted by representatives of all regions of the world and covered all legal traditions. Formally adopted by the United Nations on December 10, 1948, it is the most universal human rights document in existence, delineating the thirty fundamental rights that form the basis for a democratic society.

In its article 16 states that-

• Men and women of full age have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.


• Marriage shall be entered into only with the free and full consent of the intending parties.”

The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962:

The Preamble declares that the Marriage Convention recalls Article 16(1) of the UDHR and establishes that State Parties should take all appropriate measures with a view to abolishing such customs, ancient laws, and practices, by ensuring complete freedom in the choice of a spouse, eliminating child marriages, establishing appropriate penalties where necessary, and establishing a civil or other register in which all marriages will be recorded. The Convention calls upon state parties to eliminate the marriage of girls under the age of puberty and requires that states take legislative action to stipulate the minimum age of marriage.

The convention states that-

• No marriage shall be legally entered into without the full and free consent of both parties.


• States Parties shall specify a minimum age for marriage (not less than 15 years). No marriage shall be legally entered into by any person under this age.


• All marriages shall be registered in an appropriate register by the competent authority.

The Convention on the Elimination of All Forms of Discrimination against Women, 1979:

The 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the most comprehensive international treaty guaranteeing the basic human rights for women. CEDAW guarantees gender equality and non-discrimination and requires states to uphold these rights.

Article 16.1 of the Convention on the Elimination of All Forms of Discrimination against Women, 1979 suggests equally for men and women:

• The same right to enter into marriage;


• The same right freely to choose a spouse and to enter into marriage only with their free and full consent


• The same rights and responsibilities during marriage and at its dissolution.

Article 16.2 states 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.”

The Convention on the Rights of the Child (CRC), 1989:

The 1989 Convention on the Rights of the Child (CRC) sets out human rights principles specifically applicable to children. Under the CRC, the child is not simply a recipient of privileges bestowed at the discretion of the family, community and State, but rather the bearer of legal rights under international law. Marriage is not considered directly in the CRC. But it is clear that the Committee places a great deal of importance in ensuring that marriage should not be concluded too early and that the minimum age for marriage should be equal for boys and girls. General comments of the committee urges increasing the minimum age for marriage with or without parental consent to 18 for both boys and girls. More specifically, the comment urges governments to take “preventive, promotive and remedial action” to safeguard women from harmful traditional practices, including child marriage, that deprive girls and women their right to adequate reproductive or sexual health.

The African Charter on the Rights and Welfare of the Child, 1990:

Article XXI of the African Charter on the Rights and Welfare of the Child, 1990 states: Child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age for marriage to be eighteen years.

The International Covenants on Economic, Social and Cultural Rights:

In 1998 Bangladesh acceded to the Convention on Consent to Marriage, which calls for the “full and free consent” of both parties in all legally binding marriages in Article 1. Article 2 requires states to set a minimum age for marriage. However, Bangladesh reserved its right to apply Articles 1 and 2 of the Convention concerning the issue of child marriage in accordance with the Personal Laws of different religious communities of the country. Allowing personal laws of religious communities to supersede international law sustains the practice of child marriage in Bangladesh.

South Asian Initiative to End Violence against Children (SAIEVAC):

South Asian Initiative to End Violence against Children (SAIEVAC) is an inter-governmental body in partnership with children and civil society organizations, with a vision that all children, girls and boys, throughout south Asia should enjoy their right to an environment free from all forms of violence, abuse, exploitation, neglect and discrimination. It’s one of the apex body of South Asian Association for Regional Cooperation (SAARC). Since 2011 SAIEVAC has made ending child marriage one of its five thematic priorities and taken important steps to promote regional conversation among governments about how to end child marriage. In 2014 SAIEVAC adopted the first Regional Action Plan to end child marriage in South Asia that will be implemented from 2015 to 2018. It’s a commitment by Government in South Asia to end child marriage as they officially recognized child marriage as a human rights violation. The action plan has focused seven main areas:

• Effectively enacting, enforcing and using national legal and policy instruments to increase the minimum age of marriage to 18 for both boys and girls;


• Ensuring access to quality education, especially secondary;


• Increase the mobilization of girls boys, parents and religious leaders to change discriminatory gender norms;


• Increasing child marriage prevention by addressing its root causes and creating alternative social, economic and civic opportunities for girls;


• Collective evidence on the status of married girls and good programmes to address their needs;


• Enhancing advocacy to mobilize action and support for girls who are already married, providing option for sexual and reproductive health information and services and recourse from violence in the home, including annulling marriages;


• Better monitoring, reporting and evaluation of programmes to end child marriage in South Asia.

National legal framework to restrain child marriage

The children Act, 1974

According to the law early marriage is a punishable offence, but it is not banned. Article 34 of the Children Act, 1974 specifically stipulates the penalty to be imposed for cruelty to children.

Child Marriage Restraint (Amendment) Ordinance, 1984 (Ordinance No. XXXVIII of 1984):

Bangladesh ratified CEDAW in 1984 and prohibits child marriage in Article 16(2). The act was omitted by section 3 of the Child Marriage Restraint (Amendment) Ordinance 1984 (Ordinance No. XXXVIII of 1984). By approving this amendment, whoever, being a male above twenty-one years of age, or being a female above eighteen years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to one thousand Taka, or with both. On the other hand whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand Taka, or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.

Child Bill 2013:

The Child Bill 2013, passed on June 16, 2013 by the National Parliament, was published through a gazette notification on June 20. The new act is harmonized with the United Nations Convention on the Rights of the Child (CRC) and has referred to the CRC in the preamble and replaced the Child Act 1974. Though the act didn’t say anything about child marriage, it recognizes an individual, aged 18 or below as a child, providing a universal and internationally recognized definition for a child.

Child Marriage Restraint Act 2014 (draft):

The Child Marriage Restraint Act 2014, drawn up by the Ministry of Women and Children Affairs, comes after a Unicef report found that 74% of Bangladeshi girls under 18 years and an alarming 39% of girls under 15 years had been married off. In July 2014 at the Girl Summit in London, the government of Bangladesh made a commitment to revise the “Child Marriage Restraint Act 1929” by 2015 and eradicate marriage by girls below the age of 15 by 2021, which places it under added pressure from the international community to act on this issue.

The cabinet recently approved the drafts of the Child Marriage Restraint Act 2014, a law intended to choke off the high rate of child marriage in Bangladesh, keeping the provision of maximum two years in prison and Tk50,000 as penalty. According to the draft act, the offence also carries a minimum sentence of six months, or Tk10,000 fine, or both for the violation of the law. The male offenders will be punished with both the sentence and the fine, while the female offenders will be charged with the fine only. According to the proposed law, anyone under 18 years of age will be considereda child, while a male under 21 years of age and a female under 18 years will be considered as minors. It stipulates that a marriage between two minors or between a minor and an adult will be considered a child marriage. Though the draft law is fulfilling all the requirement of international human rights standard for marriage, it has a sub section that proposed to considering the legal marriage age for girls at 16 years under special circumstances which has brought national and international debate. In the sub section it was said that if any girl elopes with a man and refuse to return or become pregnant before marriage, these special case was considered as special circumstance. (19 October 2015, Dhaka Tribune)

Other National and international action by government and NGOs to reduce child marriage

Another factor that exacerbates the problem of child marriage in Bangladesh is that most births go unregistered, and thus the official age of many women and girls are unknown. This greatly limits the possibility for legal remedy. The Law and Local Government Ministry put a new Birth and Death Registration Act into force in 2004, which requires birth certificates as proof of age to be presented in order to apply for several major services throughout the country, one of which is marriage registration. In recent year the government has taken initiatives for 100% online birth registration which will help to reduce child marriage in Bangladesh.

The United Nations on November 2014 adopted the first-ever resolution calling on governments to stop child marriages, despite misgivings from countries who had hoped to include sex education as key to preventing the practice. Unless action is taken, some 1.2 billion girls will be married by 2050, says the Girls Not Brides coalition of non-governmental organizations.

Bangladesh is a member of the South Asian Initiative to End Violence against Children (SAIEVAC) which adopted a regional action plan to end child marriage. The action plan will be implemented in the member countries between 2015 to 2018.

The government of Bangladesh’s secondary school enrollment program provides parents with monetary compensation for the loss of their daughters’ domestic and agricultural labor and requires parents to sign a statement of commitment not to have their daughters marry until they reach age 18. It also covers the cost of school fees and books for girls to remain in school. As a result, girls’ school enrollment and age of marriage increased.

The MDG-Fund has worked to change the future for girls in Bangladesh. In partnership with the development organization BRAC, local government and NGOs, it has provided training to men, women and adolescents to prevent child marriage, stop dowry practices and support for survivors of gender-based violence.

UNICEF in partnership with the Ministry of Women and Children Affairs and NGOs has been implementing activities to stop child marriage as part of its Empowerment of Adolescents project. It contributes towards creating a social debate, bringing together community members for social change and providing alternatives to early marriage. Besides several International Organizations including CARE, other national and local NGOs and different networks like Girls Not Brides (GNB), National girl Child Advocacy forum have been working to end child marriage in Bangladesh.

Conclusion:

It is our great pleasure that the Government of Bangladesh has given deep concentration to eliminate child marriage from this country. As part of its initiatives, the Child Marriage Restraint Act 2014 has drafted and went to the cabinet for vetting. Though the bill has introduced severe punishment for forcing children into marriage by increasing the financial penalty and extending the penalty of imprisonment, it has a special provision to allow girls to marry before the age of 18 that violets number of international policy. According to this special clause, marriage of 16-year-old girls to men above 21 years, with the consent of parents or courts, will not be treated as child marriage. But in a recent meeting the Minister of Women and Children affairs has confirmed that the age of marriage for girls will remain 18. Although the government declared in girls Summit at London to revise the law by 2015, we already have passed a year and the bill is still waiting for the approval. It is urgent to approve the law, so that the law enforcement agency and the civil society can formulate their plan of action to eradicate child marriage forever.