CHILD MARRIAGE RESTRAINT BILL 2016
6 April 2017 Blog
Creating loopholes for sham marriages
Nusrat Jahan Swati
In 1999, when my housemaid married off her 13-year-old daughter in the village, I was shocked and outraged. I tried to convince her, threatened her but could not deter her from that path. Several years later, she came to me with her daughter, who now has developed serious gynaecological problems and anaemia related to the early marriage, with no high school education and no husband to feed her. I am sure this scenario is still very common in rural Bangladesh.
In 2014, a draft was prepared to overhaul the famous British era Sharda Act, officially known as the Child Marriage Restraint Act, 1929. According to a report published by the Human Rights Watch, there were many reasons behind the failure of the old law to restrain child marriages but one of the major reasons was the lack of enforcement, and enforcement related issues such as lack of access to legal assistance for victims of child marriage, lack of central birth and marriage registration systems, corruption and connivance of local public authorities and law enforcement agencies, lack of public awareness as to the effects of child marriage, etc.
The complaint process was complicated in the old law. The court would itself or through a subordinate first class magistrate inquire the complaint and then take cognizance, if satisfied. There was provision for one month imprisonment for the person, who would perform, conduct or direct such marriage and the fine was up to Tk. 1000. There was a social acceptability of such marriages, especially in the rural parts.
In 2014, Our honourable Prime Minister had pledged in the Girl Summit in London that Bangladesh would end all child marriages by 2041 and by 2021, end marriage for girls under the age of 15. Also, according to the international treaty obligations, Bangladesh has to make amendments to our national legislation. But the ratification and amendment process had been very slow over the past few decades and not on par with many international human rights treaties and conventions that Bangladesh had signed. There is an inherent inequality in the family law sector while dealing with women’s marriage, divorce, maintenance, child custody and other familial rights. As a practicing lawyer, I faced hardships explaining to my female clients that in specific family matters (i.e. custody of child) the balance weighs more towards their male counterparts. Nevertheless, I had enormous hopes and was expecting that after nearly two years of supposed stakeholder consultation, national and international dialogue, we would finally have a law that would bring in legislative tools to combat human trafficking, maternal health issues of under aged girls, lack of high school education, lack of economic empowerment for the girl child, and many more that can be encompassed in a single piece of legislation. My expectations were probably too high.
On November 24, 2016, the Cabinet approved the Child Marriage Restraint Bill 2016 that has an aim to reduce the higher rate of child marriages in Bangladesh as identified by UNICEF. According to UNICEF, as of 2016, 52 percent of Bangladeshi girls under 18 years, and 18 percent of girls under 15 years are married. In case of violation, the Bill has increased provision of a maximum penalty to Tk.1, 00, 000/= along with two years of imprisonment. A big leap from its predecessor, there is no doubt. Provisions of the Bill maintained that in general anyone under18 years of age will be considered a child, but for the sake of marriage, a male under 21 and a female under 18 will be considered as minors and that a marriage between two minors or between a minor and an adult will be considered child marriage. It has increased the punishment and fines for the parents up to 6 months and Tk. 50,000, and even added punishment (15 days imprisonment and Tk. 5000) for the minors. The licence of the marriage registrar will be cancelled if a child marriage is registered by him.
However, it is alarming to know that the draft has proposed provision for allowing marriage under the age of 18 in certain special circumstances, such as accidental or unlawful pregnancy to save the honour or dignity of the girl. I could not understand what ‘accidental or unlawful pregnancy’ means. Does this mean that in case a young girl is raped and gets pregnant, her rapist can marry her and save her ‘honour?’ Does it not allow ‘rape before marriage’ as a defence to a person? Then why do we even bother to keep the age limit to 18 (for girls) and 21(for boys) if legislators themselves encourage child marriage under ‘special circumstances’? This grey area in the Bill should be clarified and should be at par with the existing Children’s Act 2013 or penal laws such as the Prevention of Oppression against Women and Children Act, 2000. Incorporating such special circumstances provisions will undermine the pledges that the government has already made in the international forums and off-set government programmes for empowering the girl child (i.e. stipend for education, awareness, etc). Above all, this will not only open the door for systemic abuse of young girls, but will also boost child trafficking in the guise of sham marriages.
I believe that the road is still open for lobbyists and stakeholders to raise the alarm in every relevant national and international platform to put pressure upon the government to revoke this Bill. I hope that at the Parliament a healthy discussion touching up on all cross cutting issues relating to child marriage will be held before the Bill is passed into law. If all avenues fail, it can be scrutinised by our judiciary in the right forum.
The writer is a Barrister-at-Law and a practicing lawyer of the Bangladesh Supreme Court, and a former Assistant Attorney General.