Anti-child Marriage Law: HC questions spl provision

The High Court has questioned the legality of a provision that allows marriage of underage girls and boys under “special circumstances”.

The court yesterday issued a rule asking the government to explain in four weeks why the special provision of the Child Marriage Restraint Act, 2017, should not be declared discriminatory and contrary to the constitution and against the international treaties concerned.

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The secretaries of law as well as women and children affairs ministries have been made respondents to the rule.

The bench of Justice Moyeenul Islam Chowdhury and JBM Hassan came up with the rule following a writ petition jointly filed by rights organisations Bangladesh National Women Lawyers Association and Nari Pokkho.

The organisations have recently filed the petition saying the special provision, which has allowed a girl under 18 and a boy under 21 to get married on permission from their parents or a court, is contradictory to article 28 of the constitution.

The article 28 of the constitution does not allow discrimination, said the petitioners.

Article 28(4) says, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.”

Article 28 (2) says, “Women shall have equal rights with men in all spheres of the State and of public life.”

Article 28 (3) says, “No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.”

Article 28(4) says, “Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.”

Petitioners' lawyer Fawzia Karim Feroze told The Daily Star that marriage of underage girls and boys is against the spirit of the Elimination of all forms of Discriminations against Women (CEDAW), 1979, the Child Rights Convention, 1989, and Sustainable Development Goals (SDG).

Under the CEDAW agreement, Bangladesh is supposed to formulate a law so that a girl under 18 and a boy under 21 cannot marry, she said.

During hearing on the petition, Fawzia told the HC that the provision which allows marriage of underage girls and boys under “special circumstances” is contrary to the provisions of the same law -- the Child Marriage Restraint Act, 2017, as it allows marriage of underage girls and boys on permission from their parents or a court.

On the other side, marriage of underage girls and boys as per their own choice without permission from their parents or a court is an offence under the same law and therefore, the provisions of the law are contradictory, she argued.

She also said the House has passed the bill on the law without holding enough debates.   

The Jatiya Sangsad on February 27 passed the Child Marriage Restraint Bill, 2017, keeping the provision of allowing marriage of girls under 18 and boys under 21 under “special circumstances”.

The law was passed despite protracted and persistent opposition by rights groups at home and abroad.

After and before passing of the law, child rights activists repeatedly called upon the government to formulate the rules of the Child Marriage Restraint Act, 2017 immediately to prevent its misuse.

The United Nations also voiced its criticism over the “controversial” law yesterday.

The rights groups fear without a specified age limit, underage children could be married off, undermining Bangladesh's efforts to curb such unions and improve women's health.

The “special circumstances” provision of the law permits parents and in the absence of parents, a girl's or a boy's guardians, to get a court order and marry their wards off even before they reach the minimum marriageable age in their (the children's) “best interests”.

And no age limit is specified in the law for solemnising marriages under such “special circumstances”. So, practically it can be 16 years of age, 14 or even below.

According to section 2 of the bill, any male who is yet to complete 21 years or any female who is yet to complete 18 years will be considered underage for getting married.

When one or both are underage, this will be defined as child marriage.