Plea in SC lists reasons to raise Women’s Marriageable Age, power imbalance is one

A transfer plea filed in the Apex Court demanding uniform marriageable age of 21 years for men & women alleges that the disparity in age of marriage has resulted in aggravating the gender inequality that exists within a marital relationship.

The plea has been filed by lawyer Ashwini Kumar Upadhyay demanding that his plea on the same question pending with the High Court of Delhi is transferred to the Top Court along with a similar appeal filed by one Abdul Mannan, pending with the High Court of Rajasthan.

Since the issues raised in the two pleas are similar, Upadhyay invoked the power of the Supreme Court under Article 139A which allows cases involving the same or substantially the same questions of law, pending before two or more HC's, to be transferred to the Apex Court.

“While men are permitted to get married at the age of 21, women are married when they are just 18. The distinction is based on patriarchal stereotypes, has no scientific backing, perpetrates de jure & de facto inequality against women, & goes completely against the global trends,” said the transfer plea.

The plea alleged that 125 countries have a uniform minimum age of marriage for boys & girls & by ending the discrimination in age, women will have equal opportunities as men to pursue their education, employment opportunities without being hindered by family compulsion to get married.

Upadhyay argued that women in a married relationship are expected to perform a subordinate role vis-à-vis the husband.

His plea said that “This power imbalance is deeply aggravated by the age differential, because age itself constitutes a hierarchy of power. A younger spouse is therefore expected to respect & be servile to her elder partner, that aggravates the pre-existing gender-based hierarchy in the marital relationship".

All laws that deal with marriage, whether it be the Hindu Marriage Act, Special Marriage Act, Indian Christian Marriage Act or the Parsi Marriage & Divorce Act, have fixed the marriageable age for men & women as 21 & 18 respectively.

Upadhyay raised the demand for uniform minimum age of marriage before the Delhi HC in Aug 2019. On Aug 19, 2019, the Delhi HC issued notice to the Centre for its response. Around the same time, another petition came to be filed before the Rajasthan HC raising the same issue. The Rajasthan HC issued notice to the Centre on Abdul Mannan’s plea on Feb 5, 2020.

Both petitions have said that the marriageable age discrimination is a violation of fundamental rights of equality (Article 14), protection against discrimination (Article 15), & dignity of life (Article 21) & also India’s commitment under the Convention on Elimination of all forms of Discrimination Against Women (CEDAW). 

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