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Courting Concerns — The Delhi High Court Judgment on Child Marriage

by Shazia Nigar, 3 July 2012

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A Delhi High Court judgment pronouncing that a minor married Muslim girl be allowed to stay with her in-laws, as she wished, has once again been portrayed as the protracted war between archaic Mohammedan law and the modern, secular Indian Constitution. While this is how Mr. Bal Thackeray and the Hindutva brigade, in an attempt to gain mileage out of the issue, would like to argue the case, the point of it lies elsewhere. It is not a clash of civilisations, as they would like to portray it, but rather a violation of the girl child’s right to a healthy childhood and an education.

Dismissing the charge of kidnapping levelled by a woman against the boy her minor daughter married, the judgment said, ‘This court notes that according to Mohammedan Law, a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18.’

On the face of it, the judgment seems to have upheld the right to choose one’s life partner. In light of recent controversies over Khap Panchayats and murders over marriages transgressing class, caste and religious boundaries, this might seem to be a progressive judgment. However, it only contributes to regressive forces. It upholds the practice of child marriage, which has several negative implications for the girl child. Child marriages in India are forced marriages, with this case being an exception where child marriage is interlinked with the agency of the individual to choose. In promoting child marriages, the court negates any agency a girl may have possessed and allows her family to marry her off according to the patriarchy designed to suit their caste, class and religious interests.

Further, her marital obligations will most definitely prevent her from exercising her right to education. By violating the Right to Education the judgment also denies to the girl the opportunity of being empowered through knowledge and to be in a position, economically and otherwise, to exercise choice. Child marriage also has health implications, high infant mortality being one of several.

Despite the abolishment of child marriage in India the practice is rampant across the nation. While 40 per cent of the world’s child marriages take place in India, 43 per cent of Indian women between the ages of 20 and 24 were married off before they turned 18, that being the age at which girls become eligible for marriage according to the Special Marriage Act of 1954.

Most of the media coverage received by the judgment has centred around religion and culture. What this has resulted in is a shift of focus from the girl child to the question of personal laws being regressive and whether they need to be amended. While these debates are important, they ignore entirely the important issue of the rights and the welfare of the girl child.

Arguing from the religion or culture point of view places the debate in the realm of the male leaders of different communities, who seek to attack or to defend. This ensures that the debate is not informed by women and girls. The word of the male patriarchs of each community is taken to be the final and absolute authority, and it is that which ultimately frames the debate on the girl child. It is not surprising that this fails to do justice either to the issue or to India’s girl children.

In conclusion, I would like to state that I am in no way attempting to argue against the individual agency displayed by a girl who marries of her own free will, especially in cases where she functions outside the paradigm of patriarchy of caste, class and religion. While I hold that it is up to the individual to choose whom she marries or lives with, I argue against the judgment because it goes precisely against the active agency of a girl. It does this by promoting child marriages, a consequence of allowing any Muslim girl who has attained puberty to be qualified for marriage. To divert attention to whether or not Muslim personal laws are regressive is to fall into a trap which leads us away from what I believe to be the crux of this argument.

Shazia Nigar has recently obtained a masters degree in media and cultural studies from the Tata Institute of Social Sciences, Mumbai. This piece appeared in the "Mainstream" Weekly’s issue of 29 June 2012.