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Consent, Age and Agency: reflections on the recent Delhi High Court judgement on minors and marriage: Flavia Agnes

June 12, 2012

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.





12 Comments leave one →
  1. June 12, 2012 10:42 AM

    We, both Hindus and Muslims should be “creating more secure and women friendly societies where daughters can be raised with love, care and affection” and providing “more open spaces within families to discuss sex and sexual choices and challenge the premium placed on chastity and virginity within arranged marriages” as flavia has put it so beautifully on this issue., is the answer to the problem of elopment marriages. this should be the feminist agenda

  2. June 12, 2012 10:47 AM

    sorry forgot this: one thing more i find very important in this context and it has not been addressed to by flavia either, is that we should make young boys understand their responsibilities in their sexual relationships with girls and to respect the capacity of a female body to produce life.

  3. June 12, 2012 11:44 AM

    Ms. Flavia Agnes has brilliantly analysed an issue made complex by community, religion and state among others. A girl is a girl irrespective of her being a Bania or a Harijan, a Kureshi or a Saiyed, a Roman Catholic or a Protestant, a Nirankari or a Mazhabi Sikh. Physically, there is nothing to distinguish one from the other. When the state was not yet established or stable and durable, religion and community made their own rules in regard to marriage, divorce and so on. The state, once it became established, wanted to muscle itself into this regulatory space. It did so by maintaining some of the old framework like religion and ethnicity (different for tribals) and making some minimal changes. In today’s modern era, it is time to either go back to the pagan era when nature dictated these matters or to make a civilized common civil code. No regulator whether political, religious or community, willingly surrenders power that it has acquired. In such a situation, the strongest contender has to use its powers to subjugate its rivals. In India, as of today, the state is the strongest. It should use its legislative and other powers to arrive at a sensible,implementable and sustainable civil code that is applicable to all the citizens of India, irrespective of caste, creed or religion. This would be a step in the direction of national integration that many are only speaking about. Our rulers are very fond of regulating. They want to regulate cricket, business,industry or anything that succeeds financially. Unfortunately there is no money in civil code. We, the people, are supposed to be the masters of the rulers. Let us build enough pressure on them.

  4. JGN permalink
    June 12, 2012 3:03 PM

    Reproduced below is the judgement of Andhra High Court in Makemalla Sailoo vs Superintendent Of Police And Ors. (one of the cases referred to above):

    We have no option, but to allow this girl who is only 13 years old to go with her husband, but we feel that the Legislatures have not done much to stop the child marriages which are a menace. We cannot expect healthy growth of the society if a child of 12 years is allowed to be married. There are so many Acts to which a reference has been given by us hereinabove, which make the child marriage an offence, but which do not make the child marriage a void marriage. Since the marriage which has taken place between the alleged detenue and the 3rd respondent is a valid marriage in the eye of law, though it may be an offence under various provisions of various statutes, yet the marriage cannot be nullified and under the Hindu Minority and Guardianship Act, 1956 the 3rd respondent becomes a natural guardian of the detenue. These directions we are giving with a heavy heart and reluctantly, but the existing law does not leave any scope for us to take a different view. It is for legislature to look into the serious issues. Let a copy of the judgment be sent to National Women Commission and also to State Women Commission.


  5. Ravi permalink
    June 12, 2012 7:40 PM

    The issue is at what age does a child become mature enough to decide for herself (himself). As a society we have to decide that first. 18 seems to be a reasonable age, but given our sexual mores and norms, it runs somewhat contrary to the nature. However, given also that, a lot of important education takes place between the ages of 13 and 21, our society again places contradictory demands on our children. So clearly there are no easy answers.

    There is a case to be made that we as a society become more liberal in sexual matters. I think that’s already happening, at least in the urban areas. Western societies have adopted a good compromise: sex between consenting children below 18 is acceptable, but not between a pair one of whom is over 18.

    A boy or girl who is younger than 18 is clearly not mature enough to be in a marriage. It is not just the physical capacity. There are several disadvantages in such marriages and the price is not only paid by those who marry early, but also by their descendants and the society at large. So elopement alone should not be a qualifying factor in allowing a child to marry. Other factors should be taken into account.

  6. Deepti Singh permalink
    June 13, 2012 2:38 PM

    The age of discretion is not properly established which serves small cracks in the implication of law in elopement cases. We certainly cannot rule out the dangers of applying this relative to age of the agency.. teenage rush of hormones could prove disastrous to emotional decisions which impact complete life of the individual. Estrangement with parents, a natural behavior pattern in teenage, can serve fuel to this. I was simply thinking why cannot we put a “stay-order” on such elopement marriages till the time the girl attains age of consent as well as marriageable age. Neither parents nor she herself should be able to marry before that. We would surely need better enforcement agencies in that case! What say?

  7. lynne permalink
    June 19, 2012 10:59 AM

    This is fantastic post.

    My favourite part, “We need to work towards creating more secure and women friendly societies where daughters can be raised with love, care and affection …”

    Thankyou :)

    One aspect i wanted to reiterate, is that the nature of ‘consent’ itself must be continually looked at while we make arguments for women’s rights or stick with certain ‘strategic positions’ which would secure for women an empowered and safe sense of self.

    And also whether this choice to marry at 16 is right or wrong as per different socio cultural norms, i also feel like saying that young girls, women like me, in any case have the right to make these choices, the right to make ‘mistakes'(as such a choice may be perceived by others or by the girl herself in case problems arise later in such unions or marriages) .

    often the argument i have heard my family give me against ‘love marriages’ or ‘inter caste inter religious marriages’ is cases where the girl is abandoned by the boy or husband after marriage or a few months after elopement, and in others after they have a child.

    And I feel that because these marriages take place without parental consent, it becomes even more important that as a community we are able to create ‘safe and supportive’ spaces for girls who make choices ‘not in agreement’ with their parental families. It also makes me think of financial and emotional support for girls and women who make such choices. Often times we give up our right to our parental home or property in lieu of making such a choice.

  8. Nivedita Menon permalink*
    June 19, 2012 2:58 PM

    Syeda Hameed on this judgement in The Indian Express:

    “…Shumaila…stated before the court that she wanted to stay with her husband and had no desire to go back to her parents. This was a difficult situation, which the court handled with care. The judgment protected her dignity by allowing her to go with her husband. It also protected her future by giving her the option of declaring the marriage void, if upon attaining adulthood at 18, she felt she had made a mistake. Had the court ordered her back to her parents’ home, how would that uphold women’s rights?

    Last year, during a seminar in Lucknow, Vrinda Grover, lawyer and my friend, showed me a judgment of the Karnataka high court in a similar case. Both parties in this case were Hindus; the parents of the girl had filed a habeas corpus petition. The court declared that, in the case of a girl under 21, it is mandatory that the approval of both parents be obtained. Otherwise, the marriage is voidable, adding that ‘girls under 21 years of age suffer from hormonal imbalance, fall in love with boys, marry and repent at leisure’. The boy was thereby arrested and the girl sent back with the parents.

    Both cases and judgments are in the public domain. I will rest my case with all those who read this piece.”

    Read the whole article here.

  9. uma permalink
    March 9, 2014 7:21 AM

    age of consent/age of discretion? In the absence of a uniform civil code, there is a lot of conflict in discerning what is right for the girl/boy. for the muslim girls, onset of puberty puts them in a situation where their custody, marriage are all looked at from an angle which is not in consonance with the Indian Majority Act. Many communities believe in child marriages and moral policing has thrown up different conflicts. today’s young people start handling relationships at a much younger age and so, the question of age while deciding on marriage has a different connotation. Further, the Domestic Violence Act recognizes live-in relationships and this factor would be another .cause for concern when ‘children’ get into relationships.

    Are we addressing issues relating to sexuality and should it be a concern?

  10. February 14, 2015 4:18 PM

    I’ve a question regarding the ‘elopement marriages’. A girl of 16 years of age and a boy of 17 years of age, left their parental home and got married as per Hindu rites and ceremonies. The father of the girl asked the girl to return home but she refused to do so. She expressly mentioned that she married the boy according to her own will and left her parental home of her own accord. Later on, the girl’s father lodges FIR against the boy under Sec 363 and Sec 376 of the IPC. When they are apprehended by the police, the girl refuses to undergo any kind of medical examination and also refuses to give any statement against the boy before the Magistrate under Sec 164 of CrPC.

    Now tell me: Is the rape charge sustainable? Is the marriage voidable under the Hindu Marriage Act, 1955? If yes, can father claim the custody of his minor daughter under Sec 13 of the Hindu Minority and Guardianship Act, 1956 and Sec 17 of the Guardians and Wards Act, 1890? Please provide some case laws with citations if convenient for you. Also, Sec 21 of the Guardians and Wards Act, 1890 provides that the minor husband can be given the custody of his minor wife. What are the circumstances wherein the minor husband can claim the custody?


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