Last December, the NDA led central government introduced the Prohibition of Child Marriage (Amendment) Bill, 2021 in Lok Sabha. This Bill seeks to increase the minimum legal age of marriage for women from 18 to 21 and it is to be enforced across religions, superseding personal laws. Supporters hail it as a ‘decisive’ step which aims to bring about gender equality as the legal age for marriage for men and women will be equal after the passing of this Bill. This is an overly simplistic solution for a multilayered issue like women’s empowerment. Moreover, it might do more harm than good especially when it has been introduced by an extremist right wing political party.
The intentions of any policy or decision can be detected by undertaking a historical analysis of its advocates. In this article, the work of Charu Gupta, Sexuality, Obscenity, Community will be referred to bring forth historical arguments pertaining to sexuality, women empowerment and marriage laws. During the British era, there were many important laws that were proposed for the betterment in the conditions of Indian women. Although, the Britishers didn’t support the feminist movement in their own countries, they introduced some acts in India to showcase their ‘civilizing’ power. These interventions were received in varied ways by different socio- politico- economic and cultural groups.
The first law that was a center of contestations was the one regarding the definition of rape and child marriage. Prior to 1860, there was neither a legal minimum age of marriage nor a definition of marital rape. The Indian Penal Code of 1860 for the first time recognized rape within marriages. If the husband consummated the marriage before the wife was ten years old it was now considered a legal offence. This minimum legal protection for women was opposed by revivalist nationalists and Hindu orthodoxy. As Charu Gupta states in her work, their opposition was hidden strategically “in the language of love, duty and women’s best interests.'”
A case which led to a series of important events in the sphere of infant marriage was the death of a ten year old child, Phulmoni, in West Bengal. She died after being fatally injured during sexual intercourse with her 35 year old husband, Hari Mohan Maity. This case acted as a catalyst and efforts to increase the age of consent was undertaken by several reformers since 1886. Succumbing to a lot of pressure from reformers, the age of consent for married women was raised to twelve years in 1891. This move was met with stringent opposition especially in Calcutta and UP. The Hindu Samaj of Allahabad, the Dharma Sabha of Farukhabad, the Bharat Dharma Mahamandal were the face of this opposition.
Their main argument was that British intervention in Hindu personal laws was intolerable. To convince people that their opposition was emerging from their concern for their women, it was argued that if the husband gets imprisoned for consummating his wife then the wife would lead a life full of sorrows. Her life would be worse than the lives of widows as she will be denied the pleasures of married life even when the husband is alive. Charu Gupta mentions in her work how arguments pertaining to shame and honor were put forth. Upper caste Hindu orthodoxy argued that after the increment in the age of consent, women would be ‘dragged’ into courtrooms and would be made to speak ‘shameful and disgraceful’ statements. They asserted that no honorable woman would want herself to be in such a position.
When met with scientific arguments like the poor health of child mothers and their children, the Hindu nationalists and revivalists used ridicule and ignorance to dismiss these arguments. They were of the opinion that if the Hindu society goes by the methods of Western science then it would lose all its rituals like early morning baths in ghats during the cold season, full day fasts etc. Their opposition was sometimes covered behind the farce of rational arguments. One such statement was covered in Bharat Jiwan on 23rd February 1891. It was stated that “if deaths were so common from the effects of cohabitation at an early age, how could India boast a population of 260 million.”
It is important to note that there was stringent opposition to increase the age of consent and the minimum legal age of marriage for upper caste, Hindu married women. This was not the case when it came to unmarried Hindu women. The age of consent for unmarried women was mutually agreed by all Hindu extremist organizations. It was seen as a move towards protecting their women from rape by strangers especially by ‘Muslim predators and lower caste men’. Early marriage was also supported to increase the numbers of Hindus in comparison to Muslims.
The Special Marriage Act of 1872 was one act which brought forth the above mentioned arguments into the public forum and sparked heated debates. The Special Marriage Act removed any caste or religion boundaries from marriage and it did away with polygamy and legalized divorce. Initially, this act was applicable to people who didn’t profess any religion officially. However, Bhupendra Nath Basu in 1911 tried to make this a pan India Act which would be applicable to all Hindus. This was perceived as an attack to the ‘Hindu identity’ by upper caste rulers and organizations like the Arya Samaj. They argued that Hindu race would become weak as a result of promiscuous inter-caste and inter-religious marriages. The casteist and Islamophobic intentions were blatantly visible by such contestations.
In recent times, such intentions may not be blatantly obvious to everyone but that doesn’t mean the absence of such intentions. Many scholars who are critical of the Prohibition of Child Marriage (Amendment) Bill, 2021 argue that the increase in marriage age might be way to curb inter-caste and inter-religious marriages legally. This law would negatively impact the marginalized communities who will be put under the ‘law breaker’ category and would be exploited by the authorities. Only increasing the marriage age while neglecting the socio-economic realities of the people is a dangerous step towards reinforcing archaic caste and religious hierarchies.
Moreover, controlling the sexuality of adult women who make decisions of choosing the government, their career and decide the trajectory of their lives gives obvious symbols of this law standing for more than just ‘women empowerment.’ This concern for women has rarely been reflected in the case of recognizing marital rape, the implications of which is faced thousands of women everyday. This duplicity in making laws eerily follows a historical pattern which was focused on controlling women’s sexuality and maintaining the ‘purity’ of the Hindu society.
As Karl Marx once said, ” History repeats itself, first as tragedy, second as farce.”