In Pakistan, the minimal age for marriage of girls is sixteen years. In Bangladesh and India the minimal age is eighteen years.
However, in all three countries the marriage of a Muslim (or Hindu) girl under her personal law is valid even if she had not attained the requisite minimal age at the time of its solemnization; the marriage of a minor is not void abolition.
Of course, those involved in arranging and solemnizing the marriage and the husband himself (unless he too is a “child”) are liable to criminal penalties.
In all three countries of the subcontinent, the Muslim father’s right of irrevocably disposing of his minor daughter in marriage has been abrogated by the Dissolution of Muslim Marriages Act, 1939 Section 2(vii) of this Act, as originally enacted and as still applicable in India, reads as follows :
A woman married under Muslim law shall be entitled to
Obtain a decree for the dissolution of her marriage on any
One or more of the following grounds, namely:
(vii) That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:
This provision conferred upon the Muslim girl married before the age of fifteen an absolute right to repudiate the marriage once she attained the age of fifteen years, provided that she had not permitted consummation after she attained this age and provided further that she exercised her option before attaining the age of eighteen.
In 1939, at the time when the Dissolution of Muslim Marriages Act was enacted, the minimal age under the Child Marriage Restraint Act, 1929 for marriage of girls was fourteen years.
The age of fifteen years was specified in section 2(vii) of the Dissolution of Muslim Marriages Act because this is the age at which puberty (and thus majority) is assumed under Hanafi law (although Abu Hanifah himself favoured the age of seventeen years in the case of a female.)
In Pakistan (and Bangladesh), the lower age in section 2(vii) of the Dissolution of Muslim Marriages Act.
And the minimal age for marriage of a girl specified in the Child Marriage Restraint Act as applicable in these two countries were both simultaneously raised to sixteen years by the Muslim Family Laws Ordinance, 1961.
In 1978, when India rose the minimal age for marriage of girls in the Child Marriage Restraint Act to eighteen years.
The law-makers overlooked the need simultaneously to rise both the lower and upper ages in section 2(vii) of the Dissolution of Muslim Marriages Act.
This resulted in an anomalous situation: marriage of a girl below the age of eighteen years is a criminal offence, but the marriage is valid; it is also binding on the girl and cannot be repudiated by her unless she was married below the age of fifteen.
Further, she must exercise the option of repudiating the marriage in those cases where it is available to her (i.e., when she was below fifteen years of age at the time of the marriage) before she reaches the age of eighteen.
Which is now the minimal age of marriage, i.e., she must exercise the option while she is still, under the terms of the Child Marriage Restraint Act as amended, a “child”.
What is the status of a marriage contracted by a girl’s father when she is fifteen years and a few days old? Although illegal and unless otherwise vitiated, it is valid and cannot be repudiated under the Dissolution of Muslim Marriages Act.
Could, then, a situation such as that presented to the Nigerian Federal Court of Appeal in Karimatu Yakubu vs Alhaji Yakubu Tafida Paiko arise in India if the girl were fifteen instead of nineteen?
No; not if the marriage has clearly taken place in the girl’s absence, without her consent, and in the face of her active position.
The marriage would be rendered void, not by the Child Marriage Restraint Act, but by the personal law of the parties, i.e., Hanafi law, Shi’i law, or Shafi’i law as interpreted in South Asia.
However, if the girl were present at the marriage ceremony, albeit reluctantly, and went through the very minimal role that a bride plays on such an occasion, and given that both silence and tears traditionally (and legally) signify consent and modesty.
The marriage could not be repudiated. A reluctant and unwilling bride who bows to family pressure and does not make a public scene will find herself in a marriage from which she cannot easily escape.
In Bangladesh, a similar anomalous situation was created by that country’s amendment of the Child Marriage Restraint Act in 1984, rising the minimal age of marriage for girls to eighteen years, without simultaneously making appropriate amendments in the Dissolution of Muslim Marriages Act.
The result in Bangladesh is that the marriage of a girl below the age of eighteen years is a criminal offence.
But the marriage is valid and cannot be repudiated by the girl unless she was married below the age of sixteen (the lower age in section 2(vii) of the Dissolution of Muslim Marriages Act as applicable in Bangladesh); like her Indian sister.
The Bangladeshi girl must exercise her option while she is still, under the terms of the Child Marriage Restraint Act as amended, a “child”.
Serious consideration must be given in both India and Bangladesh to bringing the terms of the Child Marriage Restraint Act as amended, respectively, in 1978 and 1984, and the option clause of section 2(vii) of the Dissolution of Muslim Marriages Act into harmony in order to ensure that a girl cannot be trapped in an “illegal” marriage which she is unable to repudiate. Any marriage that is “illegal” should be avoidable at the wife’s option.
Thus, the lower age in the option clauses of the Dissolution of Muslim Marriages Act and the Hindu Marriage Act should be raised to eighteen years. The upper age might be set at twenty or twenty-one years.
If India and Bangladesh are serious about eliminating child marriages, expanding the girl’s option of repudiation of a marriage solemnized below the minimal age laid down in the Child Marriage Restraint Act may be a useful way of proceeding.
Celebration of a marriage involves a not-inconsiderable outlay of material and status resources.
If parents knew that a reluctant and unwilling bride could turn the exercise to naught once she became of age, they might hesitate before with what is, after all, a criminal offence.