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Age of Marriage: Rights not Protection

Ideas around sexuality[1], intimacy and rights have consistently come under scrutiny and control. On the one hand, policies try to ensure ‘rights’ but on the other hand, the same set of policies don’t take into account the sexual rights and voices of young people. It is assumed that there is something intrinsically aberrant about ‘sexuality’ and ‘sex’; one must not and can not talk openly about them and they are made out to be disruptors of the ‘norm’ and ‘respectability’. Sexuality is viewed as being legitimate when it is between two individuals within the ambit of a heterosexual marriage set-up. The idea of sexual rights for young people itself is deemed to be dangerous and deviating from the ethical, moral codes of the society one lives in. In particular, young girls are worst-affected by the control and regulation of their sexuality which is a critical and an often overlooked indicator of gender inequality that exists in various forms around the world.

The legal system of a State is primarily seen as a system that ensures and upholds rights, dispenses justice and maintains order in society. However, law is also used to enforce strict notions around morality (especially sexual morality), respectability, right/wrong,  acceptable/unacceptable behaviour, and so on. Laws and policies that have been put in place to ‘protect’ young people’s sexuality and rights end up penalising them for their sexuality and autonomy and put their rights at risk.

The UN General Assembly set out universal Sustainable Development Goals (SDGs) goals to be achieved by 2030 of which one focuses on eliminating early and forced marriages which has resulted in renewed steps to address the issue. It was recently announced that the Indian State may look into raising the age of marriage for girls from 18 to 21 years. The immediate reaction of a lot of people around me was positive, welcoming another ‘radical’ move to ‘protect’ the ‘daughters of our country’.

Early and forced marriages[2] (EFM)[3] lead to numerous human rights’ violations which include disruption of education, negative impact on health and sharp restrictions on the future of adolescent girls. As a young ‘wife’ in the marital household, adolescent girls are socially and emotionally isolated, have to undertake extensive domestic physical labour and are vulnerable to physical and sexual violence along with high chances of early pregnancy. Adolescence is a crucial time for physical, emotional and intellectual growth and EFM drastically reduces girls’ chances of leading economically productive lives, decreases their access to sexual and reproductive rights, exposes them to various health risks which includes complications from early pregnancy and childbirth, and leads to high maternal mortality rates.

However, delaying early marriages cannot be simply about increasing the minimum age of marriage for girls and this proposal of the State can be analysed to understand the ways in which law, when applied in isolation to other factors, can do more harm than good.

As we try to address EFM, it is important to understand why raising the minimum age of marriage for women will not curb EFM or ensure delayed marriages. Deep-rooted patriarchal norms control adolescent girls’ rights to their sexuality, bodily autonomy and decision-making capacities. There is a constant anxiety around adolescent girls’ sexuality and social behaviour including sexual risks/ fear of sexual violence and harassment, and this anxiety[4] determines the practice of ‘early’ marriages in order to ‘protect’ them from forbidden sexual relationships or if they are discovered to be in a relationship, results in discontinuation of their education which forecloses any future livelihood opportunities and means to sustain themselves. With prevalent gender inequality and discrimination, many girls drop out of school themselves because of incidents of sexual violence/harassment and the obligation to fulfil housework-related responsibilities. Furthermore, in settings with strong societal norms kept in place by patriarchy, families and communities do not look beyond a girl’s role as a wife and mother as a result of which families see no future for their daughters beyond childcare and housework. This combined with a number of other socio-economic factors such as poverty and unavailable, inaccessible resources reinforce their understanding that early marriage is the best course of action for their daughters.[5]Girls and young women are effectively denied any right to make decisions about their lives and bodies in such restrictive structures. It’s quite ironical how girls and young women are expected to ‘manage’ sexual relations in a socially-acceptable setting i.e. marriage but are almost never provided with the correct information or knowledge to negotiate safe and consensual sexual activity, leave aside express desire, or talk about pleasure.

What then, should be our approach towards early and forced marriages? If increasing the minimum age is not the solution, what do we do? Do we need a more stringent approach to the issue? Maybe stricter laws?

For reasons mentioned above, criminalising the act of early and forced marriage will not deter families and communities from going ahead with them. Therefore, the answer is no – we don’t need more criminal laws or stricter punishment. A study by Partners for Law in Development (PLD), India, found the many ways other than minimum age in which families use laws such as The Protection of Children from Sexual Offences Act, 2012 (POCSO) and The Prohibition of Child Marriage Act, 2006 (PCMA). Since the law perceives all consensual relations between young people below the age of 18 years as sexual abuse and therefore criminal, families often use these laws against young people who choose their own partners, leading to criminal prosecution of the boyfriend/ husband for child abuse. Hence, raising the age of marriage will only increase parental control over young people’s sexuality and curtail the autonomy and agency of girls and young women.

It is necessary to recognize and address the key role that sexuality plays when it comes to our efforts against EFM. What we need to remember is that EFM “doesn’t just lead to a set of restricted choices; it reflects and reinforces a set of restricted choices that already exist.”[6] When legal reforms and policies focus solely on increasing the minimum age of marriage without taking into cognizance the limiting nature of gender norms and the control of sexuality that comes with them, they fail to do anything to promote the rights of girls and young women and their agency in making decisions about their lives. Legal policies at present do not acknowledge or enhance the decision-making capacity or sexual rights of girls and young women. Legal reforms must place girls and young women at the centre of this legislation – not age or the State’s protectionist/ punitive approach.

Now is the time to talk about and talk to young people about autonomy and ensure their right to sexual and reproductive health (which is not limited to only learning about menstruation) and apply gender-transformative approaches[7] at the intersection of EFM and sexuality. This has to be a two-way conversation between young people and the legal system where the law is inclusive of the voices of young people, has an autonomy-enhancing and -enabling approach and takes into account systemic inequalities in order to address practices such as EFM.

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[1] The World Health Organisation defines sexuality as a central aspect of being human throughout life [which] encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviors, practices, roles and relationships. While sexuality can include all of these dimensions, not all of them are always experienced or expressed. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, legal, historical, religious and spiritual factors.

[2] According to the Office of the United Nations High Commissioner for Human Rights (OHCHR): Early marriage, is any marriage where at least one of the parties is under 18 years of age. Forced marriages are marriages in which one and/or both parties have not personally expressed their full and free consent to the union.

[3] I am deliberately not using the term ‘child’ marriages because this yet again dismisses adolescent sexuality – young people are a category in their own

[4] M.E. Greene, S. Perlson, J. Hart and M. Mullinax. The centrality of sexuality for understanding child, early and forced marriage. Washington, DC, GreeneWorks and American Jewish World Service. 2018

[5] Ibid

[6] AJWS. What’s Missing in the Fight Against Early and Child Marriage: Insights from India. New York: AJWS. 2015.

[7] CEFM and Sexuality Programs Working Group. Tackling the Taboo: Sexuality and Gender-transformative programmes to end child, early and forced marriage and unions. 2019.

Cover Image: Pixabay

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Article written by:

Stuti is a young-feminist activist based out of New Delhi and currently working with CREA, a feminist human rights Global-South organization. She holds a post-graduate in Gender Studies and has avid interest in gender, sexuality, law, queer activism and media.

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