Differences in eligible age of marriage between men & women perpetuate stereotypes: Fresh plea in Supreme Court prays for overhaul

The Supreme Court will hear on Monday a plea challenging the vires of vires of the Section 5(iii) of the Hindu Marriage Act, 1955, Section 4(c) of the Special Marriage Act, 1954, Section 2(a) of the Prohibition of Child Marriage Act, 2006, Section 60(1) of the Indian Christian Marriage Act, 1872 and Section 3(l)(c) of the Parsi Marriage and Divorce Act, 1936 which prescribe for eligible age for marriage for the intended bride and groom to be at least eighteen years and twenty-one years respectively.

The matter is listed before the bench of Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice Aniruddha Bose.

The plea filed by Shahida Quraishi through Advocate on Record Vandana Sharma Bhandari states that different ages for marriage violates the fundamental rights of equality (Article 14), protection against discrimination (Article 15), and dignity of life (Article 21) of citizens and goes against India's commitment under the convention on elimination of all forms of discrimination against women (CEDAW).

It has been argued that the present legal framework, that allows girls to marry at 18 years of age and boys at 21 years o f age, amongst various other flaws, also aggravates the gender inequality that exists within a marital relationship.

“The distinction is based on patriarchal stereotypes, has no scientific backing, perpetrates de jure and de facto inequality against women, and goes completely against the global trends. 125 countries have uniform minimum age ofmarriage for boys and girls and by ending the discrimination in age, women would have equal opportunities as men to pursue their education, employment opportunities without being hindered by family compulsion to get married.”, the plea states.

The petitioner has also relied on the international treaty Committee on the Elimination of Discrimination against Women (CEDAW) to submit that the same calls for the abolition of laws that assume that women have a different physical or intellectual rate of growth than men.

Reference has also been made to UNICEF’s report which states that young teenage girls are more likely to die due to complications in pregnancy and childbirth than women in their 20s, and their children are more likely to be stillborn or die in the first month of life. It is overlooked by the lawmakers that there is direct correlation of age of marriage and motherhood with health, medical well-being, and nutritional status o f the mother and neonate, infant or child, during pregnancy, birth and thereafter. The law prescribes a minimum age of marriage to prevent child marriages and abuse of minors.

“Gender based discrimination in the age of female and male is arbitrary, unfounded, unreasonable and violative ofthe Article 14, 15 and 21 of the Constitution of India and ultra vires to the espective statute(s) It is humbly submitted that classification/ discrimination based on sex/ gender must be founded on an intelligible differentia; and it must have a rational nexus with the object sought to be achieved by the impugned law, which lacks in these provisions and thus these provisions are dehors the respective statute.”, the plea further states.

Along with declaring the impugned provisions as ultra vires, the plea seeks for enhancing the minimum marriageable age of female from 18 to 21 years in parity with male and in the alternative, direct the Central Government to take appropriate steps to remove the anomalies in the minimum age of marriage and make it 'gender neutral, religion neutral and uniform for all citizens' in spirit of the Articles 14, 15, 21 and International Conventions.

It is pertinent to mention that the Supreme Court bench of former Chief Justice SA Bobde, Justices AS Bopanna & V. Ramasubramaniun on February 2, 2021 had issued notice to the centre in the plea filed on behalf of Ashwani Kumar Upadhyay which sought transfer of petitions pending before the Rajasthan High Court & Delhi High Court which have sought uniform age of marriage for both men & women.

Case Title: Shahida Quraishi v. Union of India & Ors| W.P.(C) No. 551/2021