Penalising victims of child marriage isn’t the right way to go

Two 15-year-old minors were recently sentenced to one month's imprisonment by a mobile court in Netrokona for getting married before they were legally old enough to do so. The children were, however, later released from police custody, and the High Court Division had also issued a verbal order for their release. The sentence was given under the recent Child Marriage Restraint Act of 2017 (CMRA), which had faced much criticism at the time of its enactment for including a special clause which was meant to exempt the parties to a child marriage from criminal sanctions on judicial permission. No doubt that the said order by the mobile court was in conflict with the Children Act 2013, which provides detailed provisions for dealing with children who come in conflict with or in contact with the law—upholding the best interest of the child.

In 2020, the High Court Division had also observed that the Mobile Court Act, 2009 has not empowered executive magistrates to conduct trial of children and that the Children's Court under the Children Act 2013 being the subsequent special law, will have the jurisdiction. However, despite such clear directions, the 2017 Act on child marriage, which is a law subsequent to the Children Act, had added a new provision [s.7(2)] that imposes penalty on minors for contracting child marriage. It prescribes for the detention of minors, which may extend to one month, and a fine, which may extend to Tk 50,000. As per section 17 of the CMRA, the mobile courts can impose a penalty for the offences committed under the Act. However, the schedule to the Mobile Court Act specifies only certain particular provisions of the CMRA to be within its jurisdiction, which includes section 7 that prescribes penalty for minors involved in marriage. Thus the law clearly authorises the mobile courts to impose penalty for committing child marriage even against the minors. However, mobile courts are meant to immediately take cognisance of certain offences on the spot, awarding limited penal sanctions. Whereas, in this particular case, the sanction was reportedly given much later in the office of the concerned executive magistrate, which itself makes the sentencing questionable. The CMRA thus creates a conflicting position with regard to the Children Act and does not adequately address its application in cases where children are sentenced under the CMRA.

Keeping that aside, the very provision of penalising the children for committing child marriage does not make much sense when the law itself refers to the minor involved in a child marriage, as a "victim" or "aggrieved person" in several places. It is unconceivable as to how a law, which is meant to address the plight of the victim of child marriage, is contemplating penalty for that very victim. Such penal provision, which presumably was inserted as a measure to deter underage persons from getting married by eloping, was not present in the earlier British colonial time law of 1929, which was rather criticised for being archaic and ineffective at preventing child marriage.

Thus the law creates contradictions by imposing criminal sanctions upon the victims whose interests it wishes to protect. Considering that this law is aimed at securing the best interest of a child, a penal provision for minor victims of child marriages is against the spirit of the law. The CMRA, as such, should exclude the minor party form being penalised for contracting child marriage. Instead, in appropriate cases, the law may provide provisions for engaging the minor in the local child marriage prevention-related initiatives and also ensure psychosocial counselling. Again, it is these cases that the special clause in the CMRA could offer some positive relief to when the marriage is conducted between parties who are closer to the marriageable age and in consideration of the court, are matured enough to enter into a marriage relationship. However, that very element of obtaining consent of the concerned minor is missing from the special provision under the CMRA and it is only the parents whose consent is to be considered by the court to allow a child marriage without criminal sanction.

This leads to another blatant inconsistency that remained in the 2017 CMRA regarding the minimum marriageable age, which is 21 for males, and 18 for females. Such inequality in the age of marriage contradicts the international human rights law mandates. It further creates some significant legal anomalies in the enforcement of the CMRA. For example, if an adult woman of 18 years marries a man of 20 years, under section 7(2), it will still be considered as "child marriage", as a man below 21 years is considered "underage" for the purpose of CMRA. In such a case, the woman would be subjected to penal sanctions applicable for an adult contracting party under the CMRA. In a socio-cultural context like ours, where women are already disadvantaged and have very little voice over their marriage decisions, it is inconceivable that the wife bears a greater criminal liability than the adult husband. Again, although under our majority law, whereas an 18-year-old man can enter into any contract, he may be penalised for entering into a contract of marriage until he turns 21. This again is irreconcilable with any sound legal interpretations.

There are also a number of other loopholes and ambiguities in the 2017 Act—including lack of option for the minor for annulment of the marriage, lack of support and assistance for victims, ambiguities surrounding applicable courts and procedures, etc.—that need to be addressed if we aim to use the law as an effective tool to eliminate child marriage. It is thus important to use this opportunity to take a deeper look at the law in its entirety and find out ways to fill in the crucial gaps.

Taslima Yasmin is Associate Professor, Department of Law, University of Dhaka.

Email: taslima47@yahoo.com