Published: 12:00 AM, 08 November 2016
Ineffective legal protection to prevent child marriage in Bangladesh
Recently Bangladesh has become the fourth worst underage marriage country around the globe which demolishes other successes of Bangladesh in ensuring reduction of child mortality and maternity health, women empowerment, health and education. A new report released by Save the Children on the occasion of International Day of the Girl Child showed that in every seven seconds one girl under the age of fifteen gets married.
Nevertheless, child marriage is regarded not only as fundamental violation of human rights but also threat to child health and education. However, Bangladesh has an enactment namely the Child Marriage Restraint Act, 1929 to combat early marriage since British colonial regime.
According to the mentioned Act, minimum ages of marriage for male and female are twenty one and eighteen respectively and person below this age would be treated as child for the purpose of marriage. Accordingly, the legislature defines child marriage as a marriage where one of the contracting parties is child.
However, in considering age, there are contradiction between Islamic Sharia Law and present statutory law. The Sharia declared a person as child before he or she attains physical puberty naturally.
Hence, there is scope of misinterpretation as a person after becoming adult under the Sharia may still be regarded as child under the domestic law. In addition, Sharia allows child marriage in certain situations though children are incapable of giving their consent to contract a marriage. In that case, their guardian i.e. father, grandfather, brother or uncle can give consent on behalf of them. Nevertheless, in such case of child marriage solemnized under the Sharia Law, the minor will get an option to validate the marriage or not after attaining her age of puberty.
In accordance with the Children Act, 2013 and the Majority Act, 1875 age of majority is 18 whether male or female. Hence, the Child Marriage Restraint Act, 1929 should term 21 and 18 as marriageable age instead of mark them as age of majority. Furthermore, the minimum age limit to be married is not equal under the current law while our constitution guaranteed equality before law irrespective of race, sex, gender, color, religion or birth of place. In Morocco, the age limit is 18 for both bride and bridegroom.
However, the aim of the Child Marriage Restraint Act, 1929 is to restraint solemnization of child marriage; not to invalidate the underage marriage. Hence, a marriage constituted in contravention of the provision of the mentioned law is not illegitimate rather a merely punishable act which may extend to one month simple imprisonment or with highest fine one thousand taka or with both.
Additionally, the person who performs directs or conducts any underage marriage and whoever has the charge of that child whether as parent or guardian or in any other lawful or unlawful capacity or does any act to promote child marriage or permits to solemnize it or even if negligently fails to prevent it will be punished as above.
Interestingly, only adult contracting party will be punished for this offence. For example, if a 20 years old groom marries a 19 years old bride, then the bride will be punished as she attains the age of majority and the groom is still a child under the eye of law.
However, this law makes special provision for women to exempt them from punishment with imprisonment for infringement of this Act. However, under the law the court can issue an injunction against any person involved in any of the activity of doing child marriage to prevent such marriage.
The ministry of women and children affairs had drafted a new law to prevent underage marriage in more succinct way and proposed more grievous punishment than the present law. Initially the draft bill recommended reducing the minimum age of marriage for female to 16 years.
However, later the government decided to remain it at 18 after facing massive hit of criticism, but with parental or court consent this can be lowered to 16. The government must reconsider the minimum age of marriage as it has commitment to protect health, education and other interests of children and women under the UN Convention on Child Rights, Convention on Elimination of Discrimination Against Women (CEDAW) and other similar conventions, and other national laws like the Children Act, 2013.
However, despite the existence of present underage marriage prevention law, a good number of child marriages take place in the country every day. In most of the cases, the Nikah registrar (marriage/divorce registrar), the parents and concerned parties are well aware of underage of the bride and evasively hide the fact in the Kabinnama (marriage contract).
This is high time to priorities issue like prevention of child marriage and eradicates this stigma from the society. To combat early marriage from the country the government must take strict steps immediately.
The writer is a legal researcher, Law & Justice Analyst and Rights Activist and Assistant Professor at Dhaka International University (DIU)
Nevertheless, child marriage is regarded not only as fundamental violation of human rights but also threat to child health and education. However, Bangladesh has an enactment namely the Child Marriage Restraint Act, 1929 to combat early marriage since British colonial regime.
According to the mentioned Act, minimum ages of marriage for male and female are twenty one and eighteen respectively and person below this age would be treated as child for the purpose of marriage. Accordingly, the legislature defines child marriage as a marriage where one of the contracting parties is child.
However, in considering age, there are contradiction between Islamic Sharia Law and present statutory law. The Sharia declared a person as child before he or she attains physical puberty naturally.
Hence, there is scope of misinterpretation as a person after becoming adult under the Sharia may still be regarded as child under the domestic law. In addition, Sharia allows child marriage in certain situations though children are incapable of giving their consent to contract a marriage. In that case, their guardian i.e. father, grandfather, brother or uncle can give consent on behalf of them. Nevertheless, in such case of child marriage solemnized under the Sharia Law, the minor will get an option to validate the marriage or not after attaining her age of puberty.
In accordance with the Children Act, 2013 and the Majority Act, 1875 age of majority is 18 whether male or female. Hence, the Child Marriage Restraint Act, 1929 should term 21 and 18 as marriageable age instead of mark them as age of majority. Furthermore, the minimum age limit to be married is not equal under the current law while our constitution guaranteed equality before law irrespective of race, sex, gender, color, religion or birth of place. In Morocco, the age limit is 18 for both bride and bridegroom.
However, the aim of the Child Marriage Restraint Act, 1929 is to restraint solemnization of child marriage; not to invalidate the underage marriage. Hence, a marriage constituted in contravention of the provision of the mentioned law is not illegitimate rather a merely punishable act which may extend to one month simple imprisonment or with highest fine one thousand taka or with both.
Additionally, the person who performs directs or conducts any underage marriage and whoever has the charge of that child whether as parent or guardian or in any other lawful or unlawful capacity or does any act to promote child marriage or permits to solemnize it or even if negligently fails to prevent it will be punished as above.
Interestingly, only adult contracting party will be punished for this offence. For example, if a 20 years old groom marries a 19 years old bride, then the bride will be punished as she attains the age of majority and the groom is still a child under the eye of law.
However, this law makes special provision for women to exempt them from punishment with imprisonment for infringement of this Act. However, under the law the court can issue an injunction against any person involved in any of the activity of doing child marriage to prevent such marriage.
The ministry of women and children affairs had drafted a new law to prevent underage marriage in more succinct way and proposed more grievous punishment than the present law. Initially the draft bill recommended reducing the minimum age of marriage for female to 16 years.
However, later the government decided to remain it at 18 after facing massive hit of criticism, but with parental or court consent this can be lowered to 16. The government must reconsider the minimum age of marriage as it has commitment to protect health, education and other interests of children and women under the UN Convention on Child Rights, Convention on Elimination of Discrimination Against Women (CEDAW) and other similar conventions, and other national laws like the Children Act, 2013.
However, despite the existence of present underage marriage prevention law, a good number of child marriages take place in the country every day. In most of the cases, the Nikah registrar (marriage/divorce registrar), the parents and concerned parties are well aware of underage of the bride and evasively hide the fact in the Kabinnama (marriage contract).
This is high time to priorities issue like prevention of child marriage and eradicates this stigma from the society. To combat early marriage from the country the government must take strict steps immediately.
The writer is a legal researcher, Law & Justice Analyst and Rights Activist and Assistant Professor at Dhaka International University (DIU)
