An Analysis of child marriage restraint Act and the ideology and history behind its formation
This article was written by Ayushi Raghuwanshi, a student of NALSAR University of Law.
Introduction
The Government Of India Act ,1929 (Sarda Act) gave a glimpse of a social reform movement which started in India with the active participation of various communities. The most significant aspect of this reform movement was the participation of woman in the passage of the bill. The Sarda act is named after its sponsor Sir Raj Saheb Harbilas Sarda who introduced the bill in the legislative assembly on feb1st 19271. After rigorous examination of the views of various sections of the society the bill became an act in august 1929. Thereafter, it came into effect in 1930 after it was published in the gazette of India. This bill was controversial for the reason that it was applicable to the whole of British India encapsulating all religious communities including Muslims.
The most significantly debated issue in the passage of the bill was concerning the law which would most effectively bring the realization of the aim of the act (that is to reduce child widowhood and to to check mortality of infants born of child marriage). There were two options before the committee which was handed the task of gathering the public opinion. The first was to raise the age of consent within the marital relation and the second was to raise the minimum age of marriage for girls and boys. The latter option was preferred over the former by various social groups including the the various woman’s association which thought that rising the minimum age of marriage is a viable change in order to realize the aim of the statute.
The 1929 act fixed the minimum age of marriage for girls at 14 years and for boys at 18 years. However it was a complex process and not a simple change in the legislation involving such an intricate issue. Several questions were raised on the validity of a British act in colonized India. Even before seriously thinking about the evils of the child marriage many people dismissed it as a foreign act in the Indian soil. They opposed it as an interference in their personal religious beliefs and customs. So in order to understand the reformative wave which lead to the passage of the bill it is important to analyze the social conditions which formed the backdrop of the same.
The evil of child marriage: Ancient and medieval India
Although claims could not be made about the inception of the tradition of child marriage in India historians have made various assumptions based on the facts available to them. The ancient Indian society as portrayed in various epics like Mahabharata and Ramayana showed very less or no inkling of early child marriages. Even In the ancient Indian empires the Swayamvara system of marriage was followed wherein the bride chose her groom and the families performed the ceremonies only after the lady has chosen her own husband. Various other forms of marriages like Gandhrava vivah etc. were prevalent in the ancient times.2 The Aryans who travelled to India were strangers to the idea of child marriage so the historians have pointed out towards the possibility that child marriage could have been the giving of the people captured by the Aryans. However the validity of such a claim could not be established.
The another set of beliefs is based on the assumption that it was the Muslim invasion which led to the inception of the evil practice of child marriage It is believed that the Muslim rule was a persisting threat to the honor of the Indian family which in turn was related to the sanctity of the girls. So it is argued that in order to safeguard a girl she was married off. This however is proved as a wrong premise as the facts show that rape were no less frequent among the married girls as they were among the unmarried girls.
The medieval Indian society was a society in continuous transition in various respects. The turbulent atmosphere of the medieval times was vulnerable to negative changes in the society. Power was concentrated in hands of various fanatic monarchs who gave themselves sometimes the divine right to bring change in social order. especially during the reign of Delhi sultanate the qualities like rivalry, personal honor, hereditary friendship or enmity were rated very highly and many matrimonial alliances were built by marrying young prince and princesses (this was done so that the the children marrying don’t get caught in another love affair and thus rule out the possibilities of matrimonial alliances). Anything which the royal family did was likely to be followed by the villagers . Moreover the Brahmans used their influential position in the caste hierarchy to impose on the lower castes what seemed to them as correct. They propagated and proposed the Idea of pre puberty marriages of girls claiming it to be pious as the girls were sacred before puberty. Such brahminical idea were emulated by the lower castes. These practices combined with the rising insecurity among the people and their rulers in the political atmosphere led to the dominant discourse being the power and associations of the rulers and this power could in no way be subscribed to the feminine traits (both physical and mental for that matter). Hence woman was reduced to a position which was a charge of the powerful instead of being powerful herself. thereafter the evils of sati and child marriage spawned. In most of the cases the boy marrying the girl was 18 year or more thus the child marriage was more a girl child marriage than just child marriage.
The waves of consciousness and reformative ideas:
Starting with the abolition of sati the reforms brought in by the learned scholars were remarkable for the social significance attached with them. The British rule in India was an epitome of tyrannical imperialism and subsequent capitalism, there were certain ideologies which were not native to Indian consciousness and required an external imposition.
The British claim about the Indian backwardness which led to their conspicuous presence in legislation to erase the so called “backwardness” were a determining factors in the genesis of any such idea of abolition of child marriage at first place. The progressive Indian populace was already conscious of the ill effects of child marriage on woman’s health and any children born to young woman, which in turn pushed the mortality ratio high. however British’s staunch standing on their own propositions about their plans of modernity had a positive affect in the sphere of such social evils.
The importance of education was becoming an awareness in some sections of the society and a need for a law to cap the minimum age of marriage was felt by many, as child marriage was a major hindrance in the education of the girls.
Woman participation in the passage of the act
The sponsor of the act Harbilas sarda appealed to all woman’s associations to extend their worthy support to the act. The All India Woman’s Conference was formed in 1927 and it was a congregation of women from all over the India. Their Primary motive was the propagation of the idea of girls education which in turn was thwarted by early marriages of the girl child. So the conference took its 1st step in Pune , under the president ship of the Rani of Baroda.4 The conference unanimously supported the resolution for the sarda act. A detailed plan was worked out in campaigning for the sarda act.5 The striking feature of the conference was the woman’s delegation which waited on the viceroy (Lord Irwin) and the leaders of the various political parties in order to bolster support for the act.
The reforms before the act
In the year 1891, THE Age Of Consent Act came into force. This act capped the minimum age of consent for girls at 12 years. This act was amended in The year 1925 with the inception of the Age Of Consent act ,1925. This act made 13 years as minimum age of consent for girls. This act was applicable to Hindus and Christians. In the year 1927, the Sarda bill was introduced in the legislative assembly and the government I order to access the public opinion on the issue formed a committee of 10 members in 1928. The committee was headed by Sir Monopant Vishwanath Joshi.
Analysis of the report of the monopant joshi committee 1928-1929
It is significant to note that the committee which was formed under the chairmanship of Sir Monopant Joshi was called as the “Age Of Consent Committee”. This nomenclature is suggestive of the dilemma of the time as the legislature itself was not sure as to which act it is going to bring into existence i.e. the one which will increase the age of consent or the one which will fix the minimum age of marriage. So One of the basic analysis of the committee was to suggest the changes in law if at all any ,to suit the objectives of the bill.
The committee in order to access public views sent out a questionnaire to 6000 people and some 100 government bodies. The response was appreciable as one questionnaire catered to many opinions. based on the answers the committee categorized the nature of evidence as Muslim and non Muslim evidence which were further divided into Progressive and Conservative.
- THE NON MUSLIM WITNESS
- Progressive: There were two types of progressive witness. The first type were the one’s who were in favor of the proposition and maintained that a legislation is needed to bring about the change. The second type of progressive witness were in favor of the change so proposed but only through social propaganda and not a legislation.7 It can be noted that such a matter could be better dealt with by creating social awareness at a time when the people are averse to any law brought in by their colonizers. The assumption would be that the people instead of understanding the stakes and values attached with the matter may straightaway dismiss it as a British design.
- Conservative: As the name suggests these were the group who were against the very idea of a change in marriage laws. This group would have constituted the so called upper caste Brahmans who considered any change as an inference in their righteous beliefs.
- THE MUSLIM WITNESS:
They were also similarly classified ( progressive and conservatives) but they differed with their non Muslim counterparts in that they adopted a different reasoning for their stance. The conservatives among the Muslim witness i.e. the Ulemas argued that it is a violation of the teachings of Prophet Mohammad and any law on the matter is an interference with Islam. They used the stamp of divinity to averse any change in the social conditions.
Apart from the above mentioned classification the committee analyzed the situation (related to the average age of marriage ) in various parts of India and reported accordingly. Most cases of child marriages were recorded in Jharkhand and Rajasthan and girls as young as 6 year old were married in those parts.
The extent to which the committee suggestions were incorporated in the act can be analyzed by carefully studying the act .
The child marriage restraint act, 1929 : An Analysis
SEC-1: This section deals with the extent and commencement of the act. It extended to the whole of British India.7 The fact that it was not for a particular religious community can be both commended unlike the previous age of consent acts of 1891 and 1925 which were basically for Hindus and Christians communities and seen as a British design to stamp its authority to the whole of India and not just particular communities .
SEC-2: This section deals with the definitions of terms like child , contracting parties and child marriage. For the purpose of this act of 1929 a Child is a one who is less than 14 years of age if she is a girl and 18 years of age if he is a boy.
It is noteworthy that the average mean age of marriage of women in 1920’s was 13.87 years8 which was not very different from the enacted age of the marriage i.e. 14 years. this shows that a change was welcome but it was not far from what the national reality was. However In many part of the country the age of marriage was very low so the enactment would have catered to such parts.
SEC-3: This section deals with the punishment of an adult male marrying a child.9 This is critiqued basically on two grounds. first, the punishment for contracting a child marriage (for an adult male) is very mild. It is equal to no punishment at all ( 15 days prison or 1000rs fine). By the virtue of its mildness it would hardly have acted as a deterrent. the second critique was that It only punished child marriage and not invalidated it. Hereafter the very aim of the act that is to reduce widowhood and maternal and child mortality could not be realized as the marriage persisted.
SEC-5 ;SEC-6: These sections provide for the punishment for solemnizing a child marriage.10 According to this section whoever performs, abets or conducts a child marriage should be punished. This provision has reduced the position of those guilty of the crime of child marriage as mere abettors. They are responsible for the solemnization of child marriage and not the parties to the marriage. Moreover the sec-6 states “whoever contract a marriage” implying that the minor child whose marriage has been solemnized is/are capable of entering into a contract. So this need not be interpreted literally.
SEC-7: this section makes the offence cognizable for certain purposes. This section incorporates amended provisions.
SEC-9: This section lays out the mode of taking cognizance of the offence.11 it states that no cognizance will be taken by any court of any offence after the expiry of one year of the date on the which the offence was committed . this further deteriorates the efficacy of the act.
SEC-10: This is about the preliminary inquiries into the offence. This section would have proved its worth if there was any provision to make an enquiry into the preliminary ceremonies which take place before marriage like engagement ect which culminate in the marriage of the child.
Sec-11: It was repealed by the child Marriage Restraint (amendment) act,196812
SEC:12 It gives the power to issue injunction if an act is done in contravention of the act.
The above mentioned facts and analysis were an independent study into the nature of the act and it’s shortcomings and the study was not related with the British mentality and it’s influence on the act and its implementation. However I have tried to make a separate analysis of the role of the British in the mildness of the act and its inefficacy in the following paragraph:-
The british mentality
It is very clear that the act had various shortcomings which rendered it ineffective and those were not the problems which came to light after proper and intense reading of the text of the act and were visible shortcomings which any legislature could have recognized and amended at its very basic level. so the question now arises as to why in first place a seemingly mild law incapable of achieving its objective was brought in by bruisers who were very capable of implementing even the most diabolic of laws like the Rowlatt act? Moreover its implementation was dead slow and rendered the law dead. The answer to this question can only be assumed by keeping in mind the political scenario of the times and the nature of imperial rule in India.
GOVERN MENTALITY :The foucauldian idea can hold truth in this case that is when the British had no plans of proper implementation they would have enacted such a law first to make its presence conspicuous in the social lives of the people instead of only being a political entity. secondly, as the bruisers monitored the social movements happening in their colony they had an inkling of what could be the next social reform in India so in order to make state a part of any such reform they came up with a legislation. The British intention were precarious in this regard and cannot be judged as wholly reformative. To what extent their intentions were to really bring a social reform cannot be answered.
BACKWARDNESS AND IMPROVEMENT:
the British first gave India a look of a backward country and hence justified their rule by claiming that it was aimed at “improvement”. But if one goes by the state of legislation done to eradicate the so called backwardness it could be seen that they succeeded in sustaining the backwardness by first creating it (by calling certain practices as backward) and then making meager laws and policies to give a semblance of transformation and improvement.
The rising nationalist feelings at the time of the enforcement of law also were a determining factor in its dead slow implementation. The British further feared burgeoning discontentment among various religious communities and thus made it a dead letter.
conclusion
The 1929 act was an inefficient act and hardly achieved the objectives it was meant to achieve however it was first act to fix a minimum age of marriage in India and by the virtue of that it created an awareness about the problem (although its resolution was another aspect). Sarda act is still regarded as a step ahead in the journey to the social reform movement in India. It achieved the coming together of various communities and woman associations which even its sponsor may not have foreseen at the time of bringing it in the legislature.
Another important thing is that the society was itself not ready for a change in the conditions at that time. Any move by the bruisers was taken as a part of imperial design by many and a coherent acceptance of the acts so passed could not be imposed on various sections of the society already divided by the ethnic and religious movements instigated and invented by the British in India.
Endnotes
- Gulati, Leela (Aug 1976). “Age of Marriage of Women and Population Growth: The Kerala Experience”. Economic and Political Weekly (Sameeksha Trust) 11 (31/33): 1225; 1227; 1229; 1231; 1233–1234. JSTOR 436483
- Birodkar,Sudheer,”HinduSocial Customs” http://www.hindunet.org/hindu_history/sudheer_history/practices1.html
- Ibid
- aiwc.org.in the history
- Ibid
- Age of Consent Committee Report. Rep. 1st ed. Vol. 1. N.p.: Government of India, 1929. Print
- Ibid
- Government Of India,(1929) The Age Of consent Committee Report, http://arrow.latrobe.edu.au/store/3/4/2/9/2/public/B11713409pp1-184.pdf
- Ibid
- http://arrow.latrobe.edu.au/store/3/4/2/9/2/public/B11713409pp1-184.pdf
- Ibid
- Ibid
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