No to ’special circumstances’ in Law, No to Child Marriage

Taskin Fahmina*

Child marriage is a widespread epidemic in Bangladesh. According to the UNICEF, Bangladesh has the fourth highest rate of child marriage in the world; and the highest rate of marriage involving girls under 15. It is more prevalent in rural areas where 71% of girls are married before the age of 18, compared to 54% in urban areas (Human Rights Watch, 2015). Section 2 (a) of the existing Child Marriage Restraint Act 1929 describes a ‘child’ as a person who, if female, is under 18 years of age. Child marriages are considered punishable by law. However, Bangladesh is suffering from rampant child marriage practices even though 86 years have passed since the inception of the existing law – still damaging married children’s lives and overall wellbeing.

Poverty, massive violence against women, traditional culture, natural disasters and gender inequality are the main causes behind child marriages. Corruption by many government officials who issue fake birth certificates by taking bribes showing minor girls are over 18 years of age (HRW report, 2015) and lack of access to justice facilitate child marriages.

On November 24, 2016, the Cabinet approved the Child Marriage Prevention Bill 2016 with a provision of ‘special circumstances’ in Section 19, which will allow the marriage of girls under the age of 18 by the courts following parental appeals. The government faced huge criticism when about two years ago, on September 2014, the first draft of this law was placed where there was a provision for the minimum marriageable age for girls as 16; and which allowed 16 year old girls to get married by their parents’ or with a court’s consent which may be obtained on ‘justified grounds’. Even though the government backed off from 16 years marital age of girls, they later presented the November 2016 Bill which is worse than the previous one. According to the latest Bill, girls can be married off at the age of 16 or lower under ‘special circumstances’. In Bangladesh, ten year old girls were also found to have been married. Married girls are vulnerable to various diseases, domestic violence and high risks in maternal and child mortality, dropping out from schools, face severe financial crisis etc. Their future usually seems bleak. Many girls are abandoned by their husbands within a few years of their marriages. By this time, many of them become child mothers. In many cases they do not get financial or any other forms of support from the government. These girls cannot support themselves properly or take care of their children and usually have to spend lives in miserable conditions. In most cases, victims are mainly from rural and urban slum areas.

On December 07, 2016, Prime Minister Sheikh Hasina, supporting the draft law, said in the Parliament “there is nothing to worry about the new law. The law has been enacted taking the reality of our socio-economic and problems of families in rural areas into consideration,” She criticised those who are opposing incorporating the provision for ‘special circumstances’ in Child Marriage Prevention Act 2016, saying that, “They are far away from the reality. They never stayed in the village and do not have any idea about the social system”. She said. “A law can never be rigid, there must have an alternative in special cases particularly in the case of unexpected pregnancy of any girl under 18. Otherwise, it might be disastrous for the society”. The Prime Minister said, the unexpected pregnancy of a girl aged 12 or 13 would not be a problem if there was any law in the country that supports abortion. “What would be the future of that girl and her illegal baby if she somehow cannot remove the unexpected child through abortion? The society will not accept them. The baby will not be able to get admitted in any educational institutions. Nobody will give him a job.” (The Daily Star; Online December, 07, 2016)

It is important for the government to create awareness in the society where no child should be considered ‘illegal’ and the children who are born out of marriage deserve proper education, job and support. We always get to hear news regarding girls being raped/gang-raped and becoming pregnant – however, to marry them off to the rapist cannot be justified; rather, the victim deserves justice and the perpetrators must be punished. When a girl becomes pregnant after being gang-raped and afterwards if she cannot have an abortion carried out, will the government suggest the girl marry the rapist(s) who violated her? Now a days, many girls are vocal against rapists and are trying to seek justice and this provision may force them to marry their violators; and the rapists and abusers may get more chance to abduct and abuse girls– getting them pregnant and would clear their paths to marry them .Moreover, if the Bill is passed, there will be risks of abusing the law, child marriage would take place more frequently- and risks of domestic violence and marital rape will also increase.

In our country there are many bad customs such as dowry and dowry-related violence, which are still continuing. In spite of good laws to combat dowry and dowry related violence, it continues unabatedly and victims cannot get justice. Our criminal justice system is also lengthy and weak. Therefore, even after having better laws, due to the lack of implementation and lack of political willingness, many women and girls are suffering. So if the law is problematic the sufferings will further worsen more. Thus, at the very least, the Child Marriage Prevention Bill 2016 should not have any such provision which will give the abusers an opportunity to misuse that and which goes against the girls’ empowerment. If the law gives a clear message for stopping child marriage without any controversial provision, it would be much easier for the government and activists to implement the law and create awareness among people and in society at large.

Bangladesh ratified the Convention of the Rights of the Child in 1990. As per Article 24(3) of the Convention; the government of the People’s Republic of Bangladesh is obliged to take “all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.” Article 19(1) of the Convention stated that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, …including sexual abuse,”. Therefore, keeping the special provisions in the law for marriage itself contradicts the international and domestic laws.

Rabindranath Tagore once wrote a story which was published in 1914, named ‘Haimonti’. In the story, Haimonti was a 17-year old and her father had to pay a huge amount of dowry as she had “exceeded her marital age” and the groom’s mother was ashamed to have a 17-year old girl as her daughter-in-law. So, she used to tell everyone that Haimonti was only 11 years old and will be 12 soon. Even though Haimonti was not an adult, she was abused a lot due to her “exceeding marital age” and subsequently she died. Child marriage was so widespread during that time that almost all girls were married off when they were children and obviously the present situation is much better compared to the last 60-70 years. In 1929, the Child Marriage Restraint Act was introduced and created some awareness within the society which has been of some benefit to raise awareness against child marriage.

We need the total abolition of child marriage. The government should provide more efforts to improve the socio-economic situation in the rural areas; ensure security to girls and stop dropping out of them from schools and also make the system functional and effective so that soon after birth children will be registered and nothing can change their birth dates and also take measures against corrupt government officials who are issuing fake birth certificates to facilitate child marriages. The judiciary needs to be strengthened and needs to become proactive for women. If the ‘special circumstances’ of the provision of Child Marriage Prevention Bill 2016 is taken off for the sake of the girls and the law is implemented properly, we will be able to see more empowered women in future.

*Taskin Fahmina is a gender expert and associated with Odhikar

December 09, 2016; taskin133@gmail.com


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