Are we validating child marriage through ‘special circumstances’ provision?

Marrying off of female children at an early age is not a new phenomenon in the Indian subcontinent. Due to socio-economic reasons, people very often let their female children marry at such a young age which is not permitted by law. Even medical science does not permit such early marriage considering physical and mental health impact of early marriage.

The Constitution of Bangladesh confers duties on the state, the indirect aim of which is to ensure gender equality, female education and thus step forward to reduce child marriage.

Article 18(1) of the Constitution of Bangladesh directs that the government is to raise standards of public health and nutrition. The state also has responsibility under article 17 to adopt effective measures for the purpose of free and compulsory education to all children to such a stage as may be determined by law. Among others, these provisions are crucial factors in reducing the causes behind child marriage.

The Child Marriage Restraint Act, 2017 contains stricter provisions for the restraint of child marriage than the earlier law which it replaced. In various sections, it has incorporated punishment for the solemnisation and registration of child marriage for the concerned parties as well as for anyone who abets the solemnisation of a child marriage. For the proper implementation of the Act, Rules have been enacted which elaborately provide the duties and functions of various local and national authorities concerned with the law.

Although harsh provisions against child marriage and praiseworthy emphasis on preventive measures are there in the new law, there is and has been a burning concern regarding the inclusion of 'special provision' for child marriage. It is an exception to the provisions provided against child marriage in the law. According to section 19, for the best interest of the under-aged child in any particular context prescribed by the Rules, marriage shall not be deemed to be an offence under the Act, if it is solemnised in accordance with the procedure prescribed by the Rules, with the direction of the Court, and with the consent of the parents or, in applicable cases, the guardian.

Unfortunately, the procedure laid down in the Rules for special marriage of an under-aged child is very complex. Further, there is no minimum age limit under which this special treatment cannot be availed. It frustrates the very aim of the law for which such special law has been enacted. It opens the floodgates by not mentioning minimum age and negatively encourages child marriage. Neither in the Act nor in the Rules has it been provided which circumstances will be regarded as special.

In accordance with the Sustainable Development Goals (SDGs), Bangladesh has pledged to end child marriage by 2030. It is a matter of harsh reality that Bangladesh ranks fourth in the world and first in South Asia in terms of child marriage. A 2020 UNICEF data places 38 million girls and women in the country married before they turned 18; 13 million of those married before they turned 15. To achieve the government's target of eliminating child marriage by 2041, current efforts to end child marriage need to be increased at least 8 times.

The Writers are LLM Students, University of Dhaka.