Consent, Age and Agency: reflections on the recent Delhi High Court judgement on minors and marriage: Flavia Agnes
This is a guest post by FLAVIA AGNES
I am responding to the sense of despair expressed by some women’s groups and more specifically to the press conference called by Bharatiya Muslim Mahila Andolan (BMMA) to condemn the judgment of the Delhi High Court which permitted a minor (almost 16-year old) girl to marry the man of her choice rather than restore her back to her parental authority. In their campaign for codification of Muslim law, BMMA has asked for laying down 18 as the minimum age of marriage for girls (and 21 for boys), the underlying presumption being that all underage marriages must be declared as void.
Before we come up with a knee jerk response to the hype created by the media and bite the bait, we need to have greater clarity on whose side we (feminists) are batting in this confrontation between parental authority and the active agency expressed by a teenaged girl. Also I wish to raise a connecting question — if the Muslim law was codified and minimum age for marriage was stipulated, as has been done under the Hindu Marriage Act, would the High Court have responded differently? Would the judges have sent the girl back to her parental custody? And the last question – could that have been construed as a ‘progressive ruling’ by us, those claiming to be “feminists”?
Rather than speculations, it would be more prudent to make out my case by citing judgements of various High Courts pronounced in the last decade. The facts of these cases were similar to the one that is being sort to be condemned: A young girl had eloped with a boy of her choice. The parents of the girl had filed a case of rape / kidnapping or a habeas corpus case against the boy and had him arrested merely on the basis that the girl was below the “age of consent” or “age of marriage” as the case may be. When the girl was produced in court, she defied parental authority and deposed that she had voluntarily eloped with the boy and had married him. Upholding her wishes, the courts permitted the girl to accompany her husband / lover, rather than restore her custody back to her parents. The only difference – the parties were Hindus and not Muslims as in the present case. Here is a glimpse of some of these rulings:
In Jiten Bouri v State of West Bengal, [II (2003) DMC 774] Cal, the Calcutta High Court while permitting the minor girl to join her husband, declared as follows: “Although the girl has not attained majority yet she has reached age of discretion to understand her own welfare which is a paramount consideration for grant of her custody. She may not have attained marriageable age as per the provision of S.5 (3) of the Hindu Marriage Act but marriage in contravention of age can neither be void nor voidable … The girl has insisted that she wants to join her husband and does not wish to return to her father’s place.”
In Makemalla Sailoo v Superintendent of Police Nalgonda District , [II (2006) DMC 4 AP], the Andhra Pradesh High Court held that although child marriage is an offence under the Child Marriage Restraint Act, such marriages are not void as per the provisions of both, the Child Marriage Restraint Act as well as the Hindu Marriage Act.
In Manish Singh v. State, NCT Delh [I (2006) DMC 1], the Delhi High Court held that marriages solemnized in contravention of the age are not void. The court commented: “If a girl of around 17 years runs away from her parents’ house to save herself from their onslaught and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy.” The girl had deposed that she had married out of her own will and was desirous of living with her husband. The court ruled that once a girl or a boy attains the age of discretion and chooses a life partner, the marriage cannot be nullified on the ground of minority and that it is not an offence if a minor girl elopes and gets married against the wishes of her parents.
In Sunil Kumar v. State, NCT Delhi [I (2007) DMC 786] wherein the father had confined the girl illegally, it was held: “If a girl of around 17 years runs away from her parents’ house to save herself from their onslaught and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy.” The girl was not willing to return to her parents, who were not amenable to any reconciliation and wished to sever all relationship with her. The minor girl was permitted to live with her husband.
In Kokkula Suresh v. State of Andhra Pradesh [I (2009) DMC 646], the High Court reaffirmed that the marriage of a minor girl below18 years is not a nullity under the Hindu Marriage Act and the father cannot claim her custody.
In Ashok Kumar v. State [I (2009) DMC 120], the Punjab and Haryana High Court commented that couples performing love marriage are chased by police and the relatives, often accompanied by musclemen and cases of rape and abduction are registered against the boy. At times the couple faces the threat of being killed and such killings are termed as ‘honor killings’.
All these marriages were termed as “elopement marriages” and hence we need to examine this term which is used for marriages contracted without the consent of the girl’s parents. At times the girls are below the permissible age of marriage, and at other, they are projected as minors by their parents in order to invoke the state power by using the provisions of the Child Marriage Restraint Act (CMRA). The discussion on elopement marriages bring to the fore ways in which multiple social subordinations—caste, community, region, religion—intersect with patriarchy in order to hone in the sexual choices of defiant young women within established social mores. Women who exercise active agency to defy convention pose a threat to the established social order and hence are confined by reframing consent itself. In this discourse, “consent” assumes a different dimension and gets embedded in assumptions about rational choice and parental authority, rather than choices made by women themselves.
Hence judgements such as the one discussed above as well as the judgement which is sought to be condemned, which restrain the police from performing arbitrary actions such as forcing women into the protective custody of the state or confining them back to parental authority, serve as a benchmark for a liberal interpretation of constitutional safeguards of personal liberty and individual freedom.
The provisions of the seemingly progressive CMRA come to the aid of parents to tame “defiant” young women, prevent voluntary marriages and augment patriarchal power than to pose a challenge to it. When child marriages are performed by families and communities, the provisions of this statute are seldom invoked. Many a times a girl who is restored to parental custody is married off, while is still a minor, against her wishes, to the man of the parent’s choice. The patriarchal bastions are too strong and well fortified for a modernist feminist discourse to enter and change social mores through legal dictates. The only sphere in which these provisions come into play is during “elopement” marriages. They bring into sharp focus the vagaries of the term, “consent”. For the family and state authorities, lack of age becomes synonymous with lack of agency to express sexual desire and bodily pleasure.
While this is problematic, even more problematic is the way in which a certain kind of feminist discourse engages with notions of age, agency and consent when there is a rupture between these terms. This raises some discomforting challenges to the feminist movement. Hence we need to address the following questions:
Firstly, is it possible to place “consent” on a superior plane when there is a disjuncture between “age” and “consent” invoking the notion of “agency” which gets operational during elopement marriages? Secondly, does the response of a conservative institution such as the judiciary tends to be more nuanced and pro-women than the feminist demand for declaring all such marriages as void when such marriages contravene the stipulation of age despite a visible display of consent and agency? And thirdly, will invoking the Islamic notion of “age of discretion” rather than merely “age of majority” or “age of marriage” aid the defiant young women who challenge patriarchal authority, while exercising unconventional sexual choices?
When we examine the agency which a young girl expresses in an elopement marriage, the legal provision becomes a weapon to control sexuality and curb marriages of choice. Even though the criminal provisions regarding kidnapping and statutory rape appear to be protecting minor girls, these provisions are aimed at augmenting the patriarchal parental power over the minor girl. There are no exceptions in the laws on abduction and kidnapping that allow a minor to opt out of guardianship, or to leave her parental home on grounds of domestic violence, child sexual abuse or abuse of parental authority. The use (and abuse) of police power, at the instance of parents with regard to marriages of choice, works in direct contrast to women’s autonomy, agency and free will.
At times, judges, with a concern for social justice, have resolved the issue by resorting to basic principles of human rights in order to save the minor girls from the wrath of their parents and from institutionalization in state-run protective homes. The only way they could do so was by upholding the validity of these marriages by bestowing on the minor girls an agency (by invoking the premise of ‘age of discretion’) and by distancing the notion of “age” from “consent” or “agency”.
On examining these judgments through the prism of women’s rights, could these judicial interventions in aid of minor girls be termed as “regressive” and the demand by women’s groups to declare these marriages as null and void be termed “progressive”? Could the curbing of the freedom of these minor girls to express their sexual choices by their natal families with the aid of the mighty power of the state within a sexually repressive society be termed as a progressive intervention and a challenge to patriarchy? The recent legislation passed by the Parliament on Child Sexual Assault, raising the age of consent to sexual intercourse from 16 to 18 will further deteriorate the situation and render young girls (and boys) even more vulnerable to parental and state power when they express their sexuality and make unconventional sexual choices and result in even higher level of “moral policing” by the state.
Invoking the notion of “age of discretion” which the courts had done even while validating marriages of minor Hindu girls who had eloped, did not evoke a similar controversy as is being done at present. Ironically, this is being done now only because the parties concerned are Muslims. It appears that the judge erred in applying a concept of Islamic law to Muslims but not while applying it to non-Muslims. The extremely provocative manner in which this judgement has been projected by the media, warrants that we do not respond in an expected knee jerk manner and lend fuel to the age old right wing demand for the enforcement of a uniform civil code. At such moments, it is important for us to be clear on whose side we are batting.
Perhaps bringing Mathura back into this debate will help to clear the muddy waters. Mathura, a young 16 year old, illiterate, tribal girl, who had eloped, was brought to the police station on a complaint filed by her brother. After interrogation, she was raped by policemen on duty. The controversial Supreme Court ruling which acquitted the policemen on the premise that she was a woman of lose moral character became the catalyst for the women’s movement in India in the late seventies. For many of us, Mathura continues to be the touch stone for testing our feminist sensibilities. This helps me to make my point that we need to be sensitive to the multiple levels of vulnerabilities that teen aged girls who elope with their boyfriends or make other unconventional sexual choices suffer as they negotiate multiple levels of marginalizations.
Here the voice of the feminist movement must lend credence to the claims of the weak against the might of status quo-ist institutional authorities. The agency exercised by a young teen aged girl and her voice of protest against the dictates of patriarchy needs articulation and support. The claims of feminist jurisprudence must essentially lie within this complex tapestry.
Before concluding, lest I am misunderstood, let me clarify that I am not advocating that all 15 year olds must drop out of school, elope with their boyfriends and marry them and then they will live “happily ever after” as per the popular Hindi movie formula. All that I am saying is that the Child Marriage Restraint Act which was enacted in1929 has not worked as it is almost impossible to penetrate the family, caste and community bastion and prevent child marriages as is perceived by some feminist groups. In today’s society, child marriage has become a class issue as opposed to the manner in which it was used in the nineteenth century reformist debates within the context of Brahminical patriarchy. We have seen the age of marriage gradually rising when living standards rise and families have more options for education and skill training of their daughters.
The fear of leaving a young girl unattended at home who may become a victim of rape drives most poor families to marry their daughters young and hone in their sexuality so that they do not to have to endure the stigma of rape and marrying off a sullied and non-virgin daughter. We need to work towards creating more secure and women friendly societies where daughters can be raised with love, care and affection so that teen marriage is not the only choice for them. At another level, there need to be more open spaces within families to discuss sex and sexual choices and challenge the premium placed on chastity and virginity within arranged marriages. Only when the sexually repressive atmosphere within which we raise our children changes will the girls and boys not feel the need to elope and marry in order to give into their natural sexual instincts and will be in a position to make more responsible sexual and life choices.