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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 70
May 31 , 2008

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Laws For everyday life

Shedding some light on child marriage

Shah Md. Mushfiqur Rahman

Ridwan is 19 and in a serious dilemma. For the last two years he has been dating with Runa, a girl of the same age. Runa's parents are getting desperate to give her in marriage but will not agree on Ridwan as the bridegroom. Ridwan wants to complete his studies before he gets married but that may cost him Runa. He is worried that if they marry that would constitute a child marriage and implicate him in criminal charges. Is he right in apprehending so? Yes, he is. But who do you think would be punishable for this offence of child marriage? Ridwan? Wrong. Runa would be punished, only if she is tried for it. How come? Yes, this is what our law has to say about child marriage. The law defining child marriage and prescribing punishment for it, happens to be one of the oldest laws in operation, passed back in 1929. It is the Child Marriage Restraint Act.

According to this law, as it is now, a child is a person who, if a male, is under twenty-one years of age, and if a female, is under eighteen years of age. And a marriage involving a child, be it bride or bridegroom or both, is defined as a child marriage. If a male above twenty-one years of age or a female above eighteen years of age contracts a child marriage, s/he shall be punishable. The punishment would be simple imprisonment that may extend to one month, or with fine that may extend to one thousand taka, or with both. So in the hypothetical story above Runa would be punished. Ridwan would escape as he is still a 'minor'! After all, a minor cannot be punished for marrying a major.

Above surely is an instance of common child marriage. But let's turn to the dominant form of child marriage which is typically guardian-sponsored. Though the rate of such 'arranged child marriage' is getting lower nowadays, the number is still significant. These usually take place in rural areas. An array of socio-economic factors prompts guardians to give their children in marriage at an early age. Is there any deterrent provision in the law regarding this? Yes, there are such provisions. Guardians responsible for child marriage run the risk of being punished with simple imprisonment which may extend to one month, or with maximum one thousand taka fine, or with both. Not only them. Whoever either performs or conducts or directs any child marriage shall be liable for the same punishment.

Still the law has its drawbacks which don't allow this law to preclude incidents of child marriage. A first class magistrate can take cognizance of this kind of offence but only upon the complaint filed by the concerned Union Council or Paurashava or Municipal Corporation within whose territorial limits the incident took place. As a result you will not find many cases under the law though one has one year to bring such allegation to the court.

What's in it for general people then? Though they cannot lodge complaint of a child marriage that already took place, they are given the opportunity to invoke court's order to prevent the occurrence of a child marriage. If information of a likely child marriage, by whatsoever means, reaches the Court, it may issue an injunction against all the persons engaged in arranging a child marriage prohibiting such marriage. Before doing so, those persons shall be given an opportunity to show cause against the issue of such injunction. In the event of breach of this injunction the punishment will get greater but no bigger than three months imprisonment or up to one thousand taka fine, or both. This time the imprisonment can be rigorous, if the court orders so, as contrasted to mandatory simple imprisonment in the other punishable acts under this law.

There is a case of positive discrimination made in favor of women in this Act. They cannot be awarded with imprisonment. Keeping punishments aside let's talk about the consequence of a child marriage. Is child marriage prohibited under this law? No, it just made the act a punishable offence. Every consequence of a valid marriage will follow a child marriage ranging from legitimacy of children to right to inheritance. So, you may wonder what's the point in making such law. There is a potential danger associated with the idea of prohibiting child marriage. It will render scores of kids, born in consequence of child marriage, illegitimate and divest thousands of girls of their marital rights. And it is not prohibited in personal laws too. So it's better to fight the menace in a slow but steady way.

The writer is advocate, member of Dhaka Bar Association.


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