Child Marriage Restraint Act

Bangladesh was recently declared the fourth worst country for underage marriage, which overshadows other successes like reduction in child mortality and maternal deaths, and improvement in girls’ education and women empowerment.

Child marriage is regarded not only as a fundamental violation of human rights, but it is also a threat to child health and education.
However, Bangladesh has an existing law, namely the Child Marriage Restraint Act 1929, to combat early marriage since British colonial times.
According to the Act, the minimum ages of marriage for men and women are 21 and 18 respectively, and any person below those ages would be treated as a child for the purpose of marriage. The legislature defines child marriage as a marriage where one of the contracting parties is child. 
However, in considering the minimum marriageable age, there is contradiction between the present statutory law and Islamic Sharia law, which considers a person as a child before he or she attains physical puberty naturally. Hence, there is scope of misunderstanding as a person deemed  an adult under Sharia law may still be regarded as a child under our domestic laws. In addition, Sharia allows child marriage in certain situations, although 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 a case of child marriage performed under Sharia law, the minor will get an option to validate the marriage or not after attaining his/her puberty.
In accordance with the Children Act 2013 and the Majority Act 1875, the age of majority in our country is 18 for both boys and girls. However, the minimum age for getting married _ 18 for women and 21 for men _  is not equal under the existing law, while our constitution guarantees equality before law irrespective of gender, ethnicity, religion or place of birth. In most countries, the age limit is 18 for both bride and bridegroom.
Furthermore, the Child Marriage Restraint Act 1929 only aims to restraint solemnisation of underage marriage, but does not prohibit or render it invalid.  Hence, a child marriage under the law is not illegal, rather a merely punishable act, the penalty being up to one month of simple imprisonment, and/or a maximum fine of Tk1,000. Additionally, those punishable under the law include any person who performs or directs an underage marriage;  whoever is in charge of the child, whether as parent or guardian or in any other lawful or unlawful capacity; and anyone who does any act to promote or permit child marriage, or even negligently fails to prevent it. Moreover, the court may issue an injunction against any persons involved if it receives a complaint that a child marriage has been arranged or is about to take place. 
Interestingly, only the adult contracting party (bride or bridegroom) will be punished for the offence. For example, if a 20-year old man marries a 19-year-old woman, then the bride will be punished as she has attained the age of majority while the bridegroom is still a child in the eyes of the law. However, the law makes special provision for women to be exempted from imprisonment. 
Despite the existence of a  preventive law, lots of child marriages take place in the country every day. In most  cases, the kazi (marriage registrar), the parents and others involved are usually aware of the underage of the bride or groom and evasively hide the fact in the kabinnama (marriage licence). 
To combat child marriage, stricter measures must be taken immediately. For example, the government could make it mandatory to produce National Identity Card, or any other valid  document or even a medical certificate from a registered practitioner, to ascertain the ages of the contracting parties during the solemnisation of any marriage. 
The Ministry of Women and Children Affairs has drafted a new law to prevent underage marriages, providing stronger punishment than the present law. Initially, the draft bill had recommended  reducing the minimum age of marriage for girls to 16 years. However, in the face of massive criticisms, the government has apparently decided to keep the minimum age at 18,  but with a proposal of lowering it to 16 with parental or court consent in certain circumstances, like if the girl elopes or becomes pregnant. 
The government must reconsider the minimum age of marriage as it is committed to protect health, education and other rights of children under various international conventions and national laws.  

The writer is an advocate and assistant professor, Department of Law, Dhaka International University.