Setting the Clock back
Delhi HC Ruling on Age of Muslim Girls Marriage
By Maqbool Ahmed Siraj
The Delhi High Court’s refusal to render the marriage of a 15- year old Muslim girl void raises more questions than it answers. The judgment is basically flawed because it practically lowers the age of marriage from the nationally recognised and acknowledged standard of 18 to 15. To boot, it does so on the religious ground. Marriage should ideally take place between people who are physically mature and possess maturer minds. While puberty or physical maturity could be subject to diet, climate and racial and genetic characteristics, there is almost a consensus that psychological maturity depends on level of education and awareness and is acquirable at certain age. Fathers of the Indian Constitution must have exercised immense amount of energy to resist the compulsions of traditions six decades ago when they fixed the age of marriage for girls and boys at 18 and 21 respectively. Several of the national leaders must have had memories of their own marriages in early teens— Mahatma Gandhi was 13 and so was Kasturba, his wife—fresh. And this law became applicable to all regardless of myriad personal laws, religious codes and ethnic customs. For the implementation part, the State exercised leniency, providing scope for awareness to percolate and social reforms to be imbibed rather than enforced. Islam, like all other religions, did not prescribe any age for marriage. It would not have been feasible given the general insecurity and warfare then. But Islamic law made it mandatory that girls too should give their consent prior to their marriage. In case of pre-puberty marriage, which was the norm then, the girl was entitled to validate or annul the marriage upon attaining puberty by expressing or withdrawing her consent. Just as Islam did not prescribe any age of marriage, it did not oppose fixation of any age either. Such questions were left open for future societies—and by extensions—states to decide as per the exigencies of the time. Prophet Muhammad (peace be upon him) laid the general principle that the girls be married away when they attain sinne buloogh (in Arabic) or age of maturity. Maturity is a physical, psychological, and may be educational and legal maturity. It could be therefore safely assumed that Islamic law desired that such questions could be settled according to the climes and times of a specific society. All that it required was that women should be mature enough to make their own decision in choosing their spouses; know their rights and duties; should have attained sufficient level of knowledge and education to feel confident in a relationship; be aware of the biological consequences of marriage and also may be able to take up the responsibilities emanating consequent to marriage. The fathers of the Indian Constitution had very appropriately designated official age for marriage for girls and boys in the given social and economic context of Indian society. It had also been quite well known that this provision was universally applicable as people from the same racial and genetic stock could not be privileged or discriminated. Viewed from this angle, the Delhi High Court ruling is a step back in time. Eighteen being the age when an individual just about finishes education up to the senior secondary level, can be said to endow a woman with bare minimum level of education for being a citizen and gaining a measure of selfconfidence. If physicians are to be believed, twenty plus is the right age for child-bearing, hence it would have been advisable to rather raise the age of marriage. Demographic pressures too support such an enhancement of the lower limit. The ruling while setting the clock back has introduced, may be by default, difference on the basis of religion in a matter of civil law where the consensus was nearly universal. It is in the interest of all that no distinctions are permitted in matters of age and registration of marriage. This will be a step towards adoption of laws that transform people into citizens of a state. Unfortunately, the signals emanating from the ruling are likely to encourage obscurantist forces out to maintain fault lines and divisions.