IN BANGLADESH the law restricting child marriage is likely to fail in meeting the goal of the law and conversely, boosts child marriages rather than curbing the practice. The Constitution of the People’s Republic of Bangladesh provides that it shall be a fundamental aim of the state to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens. The Convention on the Elimination of All Forms of Discrimination against Women states that, ‘[t]he betrothal and the marriage of a child have no legal effect….’ As per Article 16 (1) (b) of CEDAW, the government of Bangladesh is required to ensure for both men and women on a basis of equality the same right to choose a spouse freely and to enter into marriage only with their free and full consent. The Convention on the Rights of the Child obliges the government to abolish ‘traditional practices prejudicial to the health of children’ as well as to protect children from ‘all forms of sexual exploitation and sexual abuse’, which are the most obvious consequences of child marriage. As per Article 16 of the Universal Declaration of Human Rights, 1948, marriages are meant to be entered into only with the free and full consent of the intending spouses. Recognising the international obligations of Bangladesh, the government pledged at the 2014 Girls Summit to vigorously reduce and eventually culminate child marriages in Bangladesh. With that end a newfangled law on controlling child marriage has been enacted on February 27, 2017. However, this Child Marriage Restraint Act 2017 has been fronting with severe criticisms from different quarters especially from rights groups and civil society members and also from international rights organisations. The act sanctions for child marriage to occur in ‘special circumstances.’ While the government maintained the legal marriage age for children, there is a new provision in the act which would allow child marriage to take place under ‘special circumstances’ — with parental consent and with permission from the courts, deemed in the ‘best interest of the underage female or male.’ The consent or permission from the child, however, is not required, and no definition of these ‘special circumstances’ are yet given. The ‘special circumstances’ provision of the act will now in principle make child marriages lawful. This act puts boys below 21 years of age and girls below 18 years in the underage category. However, marriages involving underage brides or grooms will not be considered an offence if they take place with the consent of the court and the guardians in ‘special contexts’ serving the ‘best interest’ of the underage child.
This act has been termed as a step backward taken by the government of Bangladesh and in contrary to the rest of the world as everyone works towards ending child marriage as part of the sustainable development goals. Bangladesh has had one of the peak rates of child marriage internationally and certainly in South Asia. For years, numerous organisations have worked alongside government and communities to lower the rates of child marriage. As per the World Report 2017 on Bangladesh of the Human Rights Watch, the data indicates that the percentage of girls marrying before age 18 declined from 65 per cent in 2014 to 52 per cent in 2016, and that 18 per cent of girls still marry before the age of 15, the highest rate in Asia and among the highest in the world.
According to UNICEF, the number of girls who marry below the age of 18 in Bangladesh remains at about 52 per cent. Although this number was bizarrely on the rise, it has shown a substantial reduction from the year 2000. This also evidences that we have made progress to reduce child marriage in our country. Nonetheless this act with this special provision may lead us backwards, distressing the development we’ve made in the last nearly two decades.
However, in response to these criticisms, the government of Bangladesh said that the law was framed ‘considering the reality of our society’. Further, the most criticised special provision of the act has been defended by the government on the ground that in order to fight back a social disaster in a society, a law can never be rigid, there must have an alternative in special cases, particularly in case of unexpected pregnancy of any girl under 18.
Passing a law considering social and cultural contexts is a proof that a society is stepping forward, however, the basic human rights require the consent of the girl or boy, in order for a marriage to occur. Universal human rights should not be ignored when we are enacting new laws as laws that involve human rights issues should not be differently implemented in developed and developing countries. It is being apprehended that this act is echoing our prevailing patriarchal society. Experts expressed their view that we must focus on the benefit of the society while drafting any law and should not be stuck in personal laws only if they are proved to be harmful for the people as the law should not facilitate anything that is damaging for society.
In this regard, Heather Barr, senior researcher on women’s rights at Human Rights Watch stated that, ‘The focus now must be on containing the damage caused by Bangladesh legalising child marriage. Nothing can change the fact that this is a destructive law. But carefully drafted regulations can mitigate some of the harm to girls.’
Therefore, the government of Bangladesh should ensure that the provision permitting child marriage will be used rarely and carefully. The government should step on as soon as possible to draft regulations setting out the conditions in which children under 18 can marry, and the principles judges should practice when making an allowance for appeals to approve child marriages.
Tasmiah Nuhiya Ahmed is an advocate at the Supreme Court and research assistant (law) at the Bangladesh Institute of Law and International Affairs.
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