International Affairs · Law

Child Marriages and the Rights of the Girl Child- An International Legal Perspective

 

Child Marriage- How is it an International Human Rights Crisis?

Locating the issue of child marriages within the human rights discourse has enabled a shift in perspective from how it once used to be seen as belonging to the private domain of familial relationships to how it is now seen as a matter of public concern that proscribes the most stringent form of incarceration. The movement to eliminate the practice of child marriages has also gained its momentum at around a time when the international women’s movement is finally tearing down the artificial demarcation of ‘public’ and ‘private’ spaces of abuse upon women, and since the issue of child marriages is known to have a deeper effect on the lives of the girl child, although child marriage as a tradition affects the interests of both girls and boys, this article is to be read and understood only in light of the feminist narrative against child marriage.

Enforcement of International Child Rights Protection Mechanisms- Conventions and their Parallel National Legislations

The constitutional provisions and legislative frameworks which protect children against the menace of child marriage extend from the obligations as held by our country under the aegis of international Conventions, an example being the recent Child Rights Convention or CRC, signed and ratified in the year 1992, as well as the Convention on the Elimination of All Forms of Discrimination against Women, or CEDAW, as it is more commonly known as, signed and ratified by India in the year 1993. The Prohibition of Child Marriage Act, also known as the PCM Act, which was enacted by the Parliament in the year 2006, is considered a vastly successful national piece of legislation that has kept its full commitment towards the eradication of the practice of child marriage. The rules, grounds and procedures as laid down in the Act also reflect its adherence to the spirit of the overarching treaties, such as the Act has strictly dictated that no parent or guardian can marry their children below the prescribed age as mentioned in its text and, if they do, they would be impugned by the law. Thus, in this way, the accountability of the most significant perpetrators or role players in child marriage have been recognized.

Furthermore, in an effort to bring more people out of their closeted silence, the Act has also stated that if somebody wants to annul a marriage that has already taken place they could go to court and ask such marriage to be annulled. They could even go to the local District Child Protection Officer or DCPO, who otherwise acts as the District Social Welfare Officer for that region, and the officer would thereon record the complaint and take all actions as required. So, if a child is being married anywhere across the country, one is not needed to urgently go to the police station to lodge a complaint but is only need to either just inform the DCPO or the court and whichever authority informed would immediately declare the marriage as being annulled. However, as this article has pointed out below, the Protection Against Child Marriage Act is not above criticism and the reason for this lies in a flaw within it that has until now been little spoken of.

The Gender-Age differential question that raises some crucial fundamental issues

In most Conventions and Declarations, the right to free and full consent to a marriage is unanimously enumerated, such as in the Universal Declaration of Human Rights, The Convention on Consent to Marriage, as well as the CRC, among a few others. This right to free and full consent to a marriage supports the evolving sentiment that “consent” cannot be free and full unless both the parties have attained the maturity required to make a wholly informed decision about his or her partner. In a clear violation of this norm, the PCM legislation states instead that for the purpose of declaring a marriage between two children either void or voidable, the term “child” should be understood as meaning a girl who is below the age of 18 or a boy who is below the age of 21, although the Act does not provide any grounds or explanation for this differential treatment towards the age of men and women. This purported difference not only deprives women their chance at completing their higher studies and attaining the same maturity level as their male counterparts but is also concerning in light of the inherent risk of pregnancy to adolescent women and their children.

The World Health Organization, also known as the WHO, states that adolescent mothers, falling between 10 and 19 years of age, may suffer from several pregnancy induced health risks including but not limited to anaemia, HIV, post-partum haemorrhage and mental depression. In order for a legislation protecting the position of women and girls in our society to count as successful, it must take into account the biological conditions of women as well, in addition to the social and economic considerations, which has not been done in the case of the PCM Act, making this a clear case for the introduction of an Ordinance or Bill requesting immediate amendment.

Alternative Instruments for the Enforceability of Child Rights Protection- UN Committee Reports and Millennium Development Goals                  

An alternative route which can be taken to enforce accountability of State actors in the protection of children against child marriage is by way of a complaint report that can be filed before the CEDAW Committee, as provided for in the Optional Protocol to the CEDAW Convention, for any violation by the State of the provisions contained therein, and the State responsible would have to make an official submission before the Committee following which the latter would release its suggestions. Now, apart from Conventions, the international human rights mechanism also operates through diplomatic agencies of peace-keeping and global harmony, the Millennium Development Goals being one such an instrument. The Millennium Development Goals, or the MDG, is a set of pre-determined goals, as agreed by the world leaders from 189 countries around the world. Signed by a total of 149 heads of state till date, the MDG has laid down a few targets towards the realization of child rights protection. These targets are required to be achieved within the year 2015 as stated in the original charter containing the MDG objectives.

The issue of child marriage will never be understood if seen in an independent context. It has to be seen as being a sum total of all the other inter-related aspects of a child’s welfare that it also concerns, such as children’s health and education, and although the MDG does not make mention of child marriage as one of its preventable targets, it does mention the achievement of universal primary education for both boys and girls as one of its stated goals. It also states the importance of removing gender disparity among children at not just the level of primary but also secondary education and the importance of maintaining the health of the girl child.

To preserve its relations with and within the larger international community, the Indian Government is required to treat the MDG goals’ fulfilment as one of its top most priorities and has to, therefore, file periodic reports on the steps which it has taken towards this end to the United Nations. If only there is an improved understanding upon the State officials as to how the prevention of child marriage shall always be invariably dependent on the MDG indicators of child education and health, given that an increased number of pregnant girls are known to be leaving schools and also that the number of health risks arising directly from pregnancy are on the rise, can we really expect more action to be taken by the Government to end the practice of child marriage as a show of commitment towards the standards of modern age global consensus.

About the Author

dipayanDipayan Chowdhury

He is a student of Symbiosis Law School in Pune. An  optimist at heart with a penchant for public speaking  he had decided to join law school out of an intensive interest to make significant contribution in the area of  human rights work in the country. He is currently pursuing a diploma in the field of Human Rights   Jurisprudence which involves a comprehensive study of the interface between International law and Human rights law. Having been a science student he also holds a special interest in the field of Intellectual Property Rights and particularly in exploring the human rights aspect in it. His other interests include Criminal Justice and Feminist Jurisprudence. An avid dreamer, Dipayan hopes to go a long way in the fight for the realization of his vision and also hopes for the right people to join him in this effort.

 

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