The Himachal Pradesh Assembly on Tuesday (August 27, 2024) passed a Bill raising the minimum marriageable age for women from 18 to 21 years. The Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024, was passed by voice vote on the first day of the two-week monsoon session. It seeks to amend the Prohibition of Child Marriage Act, 2006 (2006 Act) to advance gender equality and encourage higher education among women.
The Bill was initially introduced in the Vidhan Sabha during the Budget session in February but could not be passed then. Earlier, in June, a central bill that aimed to bring uniformity in the minimum age of marriage for men and women lapsed with the dissolution of the 17th Lok Sabha. The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in the Lok Sabha in December 2021 and was subsequently referred to a parliamentary standing committee for review. However, despite receiving multiple extensions, the 31-member committee failed to table its report.
Why was the Bill passed?
Chief Minister Sukhvinder Singh Sukhu told The Hindu that the passage of the Bill clearly demonstrates the Congress government’s commitment to advancing the welfare of women. “We are the first State in the country to enact the legislation to increase the marriage age of girls to 21. The Congress has always been at the forefront to work towards the betterment of women,” Mr. Sukhu said.
Tabling the Bill in the House, Health, Social Justice, and Empowerment Minister Dhani Ram Shandil highlighted that early marriage obstructs girls’ education and limits their potential for progress in life. He noted that the proposed amendments to the 2006 Act aim to reduce instances of early pregnancies and motherhood, which adversely affect women’s health.
“In today’s world women are progressing in every field. The early marriages, however, act as a hindrance not only in the progress of their career but also in their physical development. In order to provide for gender equality and opportunities to obtain higher education, it has become necessary to increase the minimum age of marriage for girls. Thus, it is proposed to amend the Prohibition of Child Marriage Act, 2006 and other related Acts in their application to the State of Himachal Pradesh and increase the minimum age for marriage for girls to 21 years,” the Bill stipulates.
What are the key provisions?
Currently, Section Section 2(a) of the 2006 Act defines a “child” as someone “who, if male, has not completed twenty-one years of age, and if female, has not completed eighteen years of age.” The Bill removes this gender-based distinction, redefining a “child” as “a male or female who has not completed twenty-one years of age.”
The Bill also extends the time period for filing a petition to annul a marriage. Under Section 3 of the 2006 Act, an individual who was a minor at the time of marriage can file for annulment within two years of attaining majority —before turning 20 for women and 23 for men. The Bill extends this period to five years, allowing both women and men to file petitions before they turn 23, in accordance with the new minimum marriageable age of 21 years.
A new provision, Section 18A, has also been introduced to ensure that the Bill’s provisions take precedence over all other existing laws. This means that the new minimum marriageable age for women will apply uniformly across Himachal Pradesh, regardless of any conflicting laws or religious and cultural practices.
Why will the President’s assent be required?
The Concurrent List of the Seventh Schedule of the Constitution outlines subjects on which both the central and state governments can legislate. Entry 5 of this list deals with the subject of marriage and divorce enabling both the Centre and states to enact laws to regulate child marriages.
After a Bill is passed by a State Legislative Assembly, it is presented to the Governor for assent. Under Article 200 of the Constitution, the Governor can exercise four options — to grant assent, withhold assent, return the Bill to the Assembly for reconsideration, or reserve it for the President’s consideration. A Bill can be reserved for the President’s consideration only if the Governor believes that it could undermine the authority of the High Court.
In this case, Governor Shiv Pratap Shukla’s assent would typically suffice to enact the Bill into law. However, since the Bill introduces a different minimum marriageable age for women, its provisions will be deemed inconsistent with the 2006 Act —a law enacted by Parliament. This potential conflict brings Article 254 of the Constitution into play. According to clause (1) of this provision, if a State legislature enacts a law on a subject covered by the Concurrent List that is “repugnant” to the provisions of an existing central law, then that repugnant or inconsistent portion of the state law will be considered “void”.
However, if the State legislation is reserved for the President’s consideration and receives his or her assent in accordance with clause (2) of Article 254, then its validity can be upheld. With the President’s assent, the state law will take precedence within the State and override the provisions of the central law in their applicability to the State only. Thus, for the Himachal Pradesh Bill to come into force, the Governor must reserve it for President Droupadi Murmu’s consideration, who must then decide to give her assent to the Bill.
What do experts have to say?
Child and women’s rights activists have long opposed raising the minimum age for marriage. They argue that the existing provisions of the 2006 Act are frequently exploited by disapproving parents to penalise daughters who pursue inter-caste or inter-religious marriages against familial wishes. In a patriarchal society, increasing the minimum marriage age may further entrench parental control over young adults.
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Author and activist Madhu Mera previously told The Hindu that raising the minimum marriage age for women to 21 years could upend young lives in a web of criminal prosecutions. “In our research at Partners for Law in Development, we looked at 10 years of use of the child marriage law. Overwhelmingly, the law was used by parents against eloping daughters. It has become a tool for parental control and for punishment of boys or men whom girls choose as their husbands. An increase in age to 21 years would mean further persecution of girls right up till 21 years,” she said.
Such a legislative reform could also leave a vast majority of Indian women who marry before the age of 21 years without the legal protections that the institution of marriage otherwise provides. It is also likely to endanger the life and liberty of the marginalised communities exposing them to further brutal policing. The 2008 Law Commission Report recommended setting a uniform age of marriage for both men and women at 18 years. The National Human Rights Commission in 2018 too proposed a similar reform.
