Let’s Talk Law | A Case for Uniform Age of Marriage in India in Pursuit of a Uniform Civil Code

It is illegal to perform or induce child marriage in India, where the offense is known and not bailable. But the legal and social reality is not so simple. Customary or personal law practices continue to override judicial rulings and conflict with the Child Marriage Prohibition Act of 2006.

The Islamic Personal Status Law is the only personal status law that allows the marriage of girls under the age of 18 – legally. No law has fixed it. Despite criticism, martial law thrived and survived because it was supported by conservatives within the community and even by the courts.

In the final article in this series, we talk about why the Sharia Enforcement Act of 1937 should be implemented. The law is not just a relic of partition’s troubling past but it also protects regressive customs. The law provides a legal sanction for the marriage of underage girls and provides comprehensive protection for religious practices without any codification. Because of the Sharia Implementation Act of 1937, even laws such as the Prohibition of Child Marriage Act of 2006, do not “apply” to the Muslim community and even the courts have protected such practices.

The Punjab and Haryana High Court has deemed the marriage of a 15-year-old Muslim girl valid. The situation is not new. Even earlier, many court rulings said that the law banning child marriage cannot override the Islamic Personal Status Law. Courts have cited Muslim personal status law and Sharia practices according to which a girl can “legally” marry once she reaches puberty.

The case is now pending in the Supreme Court for final consideration of whether girls under the age of 18 can be “legally” married under the guise of personal status laws. After 75 years of independence, does the Democratic Republic of India allow marriage of girls under the age of 18? If so, then why? What is to prevent the elected government from criminalizing such a scathing attitude in law?

While the application for a uniform age of marriage awaits final consideration by the Supreme Court of India, one is reminded of another high-profile case in the Supreme Court that has “read” the exception under the Indian Penal Code that allows sex with a minor wife. The Supreme Court has ruled that sexual intercourse with the wife of a minor is ‘rape’, clarifying the situation in 2017 in a landmark ruling in Independent Thought vs. Union of India.

After reading the Indian Penal Code provision allowing the husband of a minor wife between the ages of 15 and 18 to have sex with them, the Supreme Court ended an anomaly in the law.

Child marriage is a punishable offense in India, yet a maze of personal laws obscures the scenario even after the Supreme Court ruling.

While the complex issue of India’s Uniform Civil Code is being debated, even its staunch supporters cannot deny the challenges that lie in the way of UCC implementation. The Unified Civil Code cannot be a one-hit piece of legislation. If one imagines that one day the government will pass a single law ending all customary practices, you have clearly underestimated the complexity. The UCC will be a series of reforms, changes, amendments and repeals. But the government can take a few steps that are not that difficult.

The law banning child marriage should be applied to all societies. No customary practice should prevail. This is a tough position that the law must take. The government should make amendments to the Sharia Implementation Act, 1937 – if not complete repeal. The customary practice that penalizes the marriage of girls over the age of 15 not only violates the Supreme Court ruling, but is also enshrined in the special laws that protect children from sexual abuse.

If sex with a minor wife is rape, regardless of her marital status, then sex with a minor wife must be “rape” regardless of her religion as well.