For the purpose of reducing child marriage in Bangladesh, a draft law on prevention of child marriage has been recently approved by the cabinet which is pending final legislative approval.
Although this new law has significantly increased the punishment for child marriage, the draft raised questions with regard to the inclusion of a special provision -- an exception, whereby child marriage (under the definition of the law) will not be considered an offence. It will not be considered as an offence if the marriage takes place in special circumstances with the permission of the court, consent of parents, and in the best interest of the “underage woman” in question.
Perhaps, similar exceptions can be found in many other countries’ minimum age of marriage laws. However, it’s important to focus on few aspects to assess the suitability of this exception in our context.
Firstly, although Bangladesh has pledged under several international conventions to set a minimum legal age for marriage, legally there is no such “minimum age” below which a marriage cannot take place in Bangladesh. Marriage is still being regulated within the sphere of personal laws and setting a minimum age of marriage is perceived to stand against traditional rules.
As such, our existing law -- which is the Child Marriage Restraint Act, 1929 -- defines marriage of males below 21 and females below 18 as child marriage; and only makes it a punishable offence without questioning the legality of it.
Secondly, unlike laws in countries such as the UK or the US where marriage cannot legally take place under a certain age and so there is an exception to legalise marriage in certain circumstances -- having an exception in our law would, perhaps, only mean to free a person from criminal conviction in special circumstances by the means of a child marriage.
Since the marriage of a minor can take place anyway, and will be valid as per personal laws, both the current law and the new draft law are basically trying to discourage the practice by providing limited penal provisions -- without prohibiting child marriage altogether.
However, given that the new law was deemed necessary to strengthen the overall child marriage prevention efforts in the country, it is not clear as to how saving certain persons from criminal convictions in exceptional situations is going to enforce that effort, especially when having such an exception might affect the success of the existing child marriage prevention efforts of the government and other organisations.
Drawing from the public statements of the lawmakers at different times, a common justification for having such a special provision in the new draft seems to be the issue of unwanted teen pregnancy and the question of legitimacy of the child, if born.
This indeed can be said to be one of the key reasons of child marriage incidents in the western world -- which, however, does not fit in the social-legal reality of child marriage incidents in Bangladesh.
This may leave the girl in a more vulnerable state when she is compelled by her parents or other family members to give consent to a marriage
A recent study had in fact found that a very insignificant percentage of child marriages actually occur due to elopement of underage girls and consequent unwanted pregnancies.
Again it needs to be stressed that the child marriage restraint law does not question the validity of a child marriage and hence a marriage so contracted remains lawful with all lawful consequences including legitimacy of a child born out of such marriage.
As such, with or without the exception, the legitimacy of a child does not come under scrutiny even though the parties had contracted a “child marriage” and the adult party in the marriage has faced penal sanction under the law.
Although the rationale for having such a clause is not clear, this exception may rather have some serious negative impact on the overall child marriage prevention efforts of the rights groups that had, over the years, built a common understanding that a marriage under 18 years of age is “illegal” and harmful for a girl.
Also, as many human rights activists and organisations have rightfully insisted, the prevailing prejudicial practice of forcing a rape victim to give consent to marry her rapist may get legal endorsement under the garb of this special provision.
Moreover, since this exception is subject to the “best interest of the girl,” in deciding what is to be in the child’s best interest -- a court has to inquire into it and scrutinise all relevant circumstances objectively, which may not be possible in all cases considering the caseloads of the existing courts.
As such, this may leave the girl in a more vulnerable state when she is compelled by her parents or other family members to give consent to a marriage and that “forced consent” is further endorsed by a valid court order without being truly in the best interest’ of the girl.
Since the draft law came as a response to decades of non-effectiveness of the existing law in preventing child marriages, it was expected that the new draft would consider the social conditions behind child marriage incidents and would effectively address those conditions.
Unfortunately, despite including a number of positive aspects in terms of strengthening the implementation mechanisms, the draft introduces some provisions which may rather drive the efforts regarding the prevention of child marriage a few steps backwards.
A larger scale consultation among all relevant stake-holders before the final approval of the draft could play a crucial role in effectively addressing the issue.
Taslima Yasmin is an Assistant Professor, Department of Law, University of Dhaka and a PhD candidate in Brunel University, UK.