Difference in legal marriage age for men and women based on patriarchal bias: Allahabad High Court

The Allahabad High Court recently observed that the difference in the legal age for marriage between men and women in India is “nothing but a vestige of patriarchy” [Sanjay Chaudhary v. Guddan @ Usha].

At present, the marriageable age for men in India is 21 years while it is 18 years for women.

A Bench of Justices Saumitra Dayal Singh and Donadi Ramesh said that the legislative intent was to allow an extra three years for men to complete their education and gain financial independence to support the family.

However, the Court said that this amounted to denial of the same opportunity to women.

“Yet, by confining that opportunity only to the male population and by deliberately denying and equal opportunity to the female population, the pre-existing patriarchal bias existing in the society and the statutory law has been confirmed. Thus, a legislative assumption appears to exist that in a matrimonial relationship, it is the male who would be elder of the two spouses and would bear the financial burden of running the family expenses while his female partner would remain a child bearer or a second party - not equal to the first, in all respects," the Court said.

The Court made the observations while dealing with a man’s appeal against a family court's refusal to declare his marriage void.

The relief was sought on the ground that the marriage, which had taken place in 2004, was a child marriage as he was only 12 years old then and his wife was only 9 years old.

In 2013, the husband had claimed the benefit of Section 3 of Prohibition of Child Marriage Act (PCMA) at the age of 20 years, 10 months and 28 days. The provision allows a contracting party to the marriage, who was a child at the time of the marriage, to seek a declaration that the marriage was void. 

However, it also states that the party himself or herself has to file the petition within 2 years of attaining majority.

Accordingly, the wife had argued that the relief was claimed much beyond the period of limitation. She said that her husband had turned 18 years old in 2010. 

The question before the High Court was whether the age of majority for the man would begin at 18 years or at 21 years, which is the legal age for marriage.

The Court noted that a male below 21 years of age and a woman below 18 years of age are deemed to be “child” for the purposes of the PCMA. It found that the term ‘majority’ has not been defined under the PCMA.

“Once the word “minor” used in PCMA refers to a person below 18 years of age, clearly, a person more than 18 years of age would not be a “minor”. In absence of any other concept or legislative intent contained in PCMA, the antonym of the word “minor” i.e. “major” appears to have been used to express the opposite intent i.e. a person who is more than 18 years of age. Only then definition of the word “minor”, may make any sense,” it reasoned.

It said that any person can institute a suit once they turn 18. Therefore,

"There is no reason, either explicit or implied, apparent or inherent, necessary or possible, to accept that males would need or may be permitted to seek such discretionary relief within three years extra limitation than provided to the female, for the same purpose...To the contrary, the legislature specifically recognizes that legal capacity arises also to the male, at the age of 18 years itself. Therefore, the limitation to institute that proceeding is singular, both for males and females,” it concluded.

Interestingly, the Court also addressed the fact that its view may lead to a “minor incongruence,” as a male, who may be married at age 20 years, may not be able seek a declaration that his marriage was void since the two years of limitation would have expired at the age of 20 itself.

The Court said that the legislature presumes that a such a person of 18 years of age or above understands the consequences of his action - of transacting a “child marriage”. 

“Therefore, he can never claim ignorance of the law or incapacity in law, after “attaining majority”. Being more than 18 years of age, he alone would elect to perform such a transaction, and he alone would have the discretion to make that decision and to perform the transaction prohibited by the law,” it added.

Any other construction would strengthen the cause of suppressive patriarchy and work against gender equality, the Court said. 

“There being no basis to the premise that the male acquires age of discretion and decision making at age 21, that interpretation if accepted may lead to absurd in any case wholly unfair and unjust results as may only be counterproductive to the present and future goals of the society and the PCMA legislation itself,” it further said.

Despite all its assertions on the issue, the High Court said that it is unable to differ from the the Supreme Court's ruling in the Independent Thought case.

In that verdict, the top court had held that a girl who was married before 18 years of age can get her marriage annulled before she attains the age of 20 years, and similarly a male child can get the marriage annulled before attaining the age of 23.

In this backdrop, the Court said that the husband could institute the suit before he turned 23.

Since it was undisputed that the child marriage had taken place between the couple, the Court declared the marriage void.

While the wife sought a permanent alimony of ₹50 lakh, the husband said he can only pay ₹15 lakh.

“Accordingly, the order of the learned court below cannot be sustained. It is set-aside. The transaction of “child marriage” performed between the parties is declared void. Let INR 25,00,000/- be paid to the respondent within a period of one month,” ordered the Court.

Advocates Anil Kumar Mehrotra, Srijan Mehrotra and Ashwani Kumar Patel represented the appellant-husband.

Advocate Gaurav Tripathi represented the respondent-wife.

[Read Judgment]