Undermining the welfare of children

The newly legislated Child Marriage Restraint Act 2017 (CMRA) of Bangladesh legally permits child marriage (between male below 21 and female below 18) under a "special circumstances" provision (SCP) when it is deemed in the best interests of the marrying children and a court order in this regard is obtained by the parents or guardians. Most rights groups are afraid that the SCP will likely be used inappropriately.

The new law improves upon the 1929 Act in terms of imposition of punitive measures and the administration of enforcement. It is undoubtedly well-intended in strengthening the rights of children, especially females. The question is whether in its current form the law is consistent with other age related codes, is expected to improve the welfare of the targeted beneficiaries and is conducive to the overall national aspirations.   

First, Article 28(4) of the 1972 Constitution stipulates that "Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens". The CMRA, however, does not utilise this progressive constitutional provision to reverse the unjust course of historical oppression of women children as their welfare considerations are not incorporated in a more compelling manner.

Second, the Majority Act of 1975 defines a citizen of age 18 or older to be an adult, not requiring a legal guardian. For the male "child adults" (between 18 and 21), the SCP is inconsistent with the acquisition of majority (adulthood); they are legally adults, but their parents/guardians would instead decide their best interests in a child marriage.

Similarly, the voting age for both males and females is 18, and hence a male "child adult" (18 to 21) is assumed to be mature enough to grasp the gravity of and then perform his civic duties; but the same person is perceived incapable of determining his best marital interests under the SCP. The perplexing assumption here is that boys and girls acquire civic sense at the same rate, but the boys lag the girls by three years in understanding their marital interests.           

Third, the age of consent in Bangladesh is 14 for both males and females, and hence children "aged 13 or younger in Bangladesh are not legally able to consent to sexual activity" (Age of Consent in Bangladesh, AgeOfConsent). Since the SCP does not stipulate a minimum age for either sex in a child marriage, it is implicitly suggesting no sexual activity between the child marriage partners until both are at least 14. Also, Bangladesh penal code does not have a "close-in-age" clause that would have permitted sexual activity between child marriage partners close in age, but one or both under 14. The inconsistency of permissible marriage under the SCP and consensual sex under the penal code makes the concept of statutory rape quite vague in the context of a child marriage. As such, not much progress has been made under the CMRA in tackling one of the key vices of underage marriage, namely sexual violence against women.   

Fourth, the Prime Minister has very correctly advocated the need for flexibility in dealing with child pregnancies before marriage. Given the socio-cultural and religious values of Bangladesh, the SCP does indeed provide a legal means for the marital rehabilitation of the child mother and the institution of fatherhood recognition and responsibility on the child father. Sadly though, the child marriage does not eliminate the socio-cultural taint of the child mother conceiving when still unmarried. Thus the stigma of a misbegotten baby cannot be avoided through the SCP or any such legal means. Further, the SCP does not make the health hazards of the child mother any less pressing; if at all, unintended ill consequences of the SCP may include an increase in child pregnancy and the associated deterioration of the health condition of females.

Fifth, one consequence of the phenomenon of child marriage is the higher growth rate of population. Though the optimal growth rate for Bangladesh is debatable, it is clear that maintaining the marriageable ages at 18 and 21 along with the SCP would not dampen the ever increasing demand for homestead and the associated loss of cultivable land, waters and forest areas. Even with vast lands and remarkably high sustained economic growth (over 7 percent), China maintains the highest marriageable ages (20 and 22) in the world (World minimum marriage age: Chart shows the lowest age you can legally get married around the world, The Independent), along with a maximum two-child policy. The common age is 20 in Myanmar, with four times the area of Bangladesh and one third the population; its GDP growth rate has been more than 7 percent since 2012 and its per capita income is also higher (Myanmar: Economic Indicators, Trading Economics). It seems that increasing the marriageable age in Bangladesh could have been helpful in boosting the GDP growth rate above 7 percent and expediting its path to the upper middle income status.           

Lastly, the legal provision of polygamy, with (Muslims) or without (Hindus) court approval, needs to be revisited. (Indian polygamy law is instead more permissive for Muslims). Polygamy is discriminatory against females and differential rules based on religion violate the constitutional principle of secularism. More importantly, it needs to be legally ensured that the SCP would not permit polygamy in the context of child marriage.       

To conclude, the CMRA needs to be integrated with other age related codes. If a key goal of the CMRA is to advance the human rights and welfare of female children, along with the facilitation of higher economic growth and a more habitable country, it needs to be amended. Recommended amendments include a stronger emphasis on and articulation of the best interests of the female child, an increase in the marriageable ages and the age of consent, a minimum age set at the elevated age of consent and exclusion of polygamy in child marriages.

The writer is a Professor at McGill University, Montreal, Canada.

E-mail: mo.chaudhury@mcgill.ca, mochaudhury@gmail.com