CHILD MARRIAGE AND PERSONAL LAWS IN SOUTH ASIA

FACT SHEET

CHILD MARRIAGE AND

PERSONAL LAWS IN SOUTH ASIA

INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS

VIOLATIONS BASED ON RELIGIOUS NORMS

Cover Image: A bride looks on during a mass-wedding ceremony in Karachi, Pakistan, on March 24, 2014.

Some 115 couples participated in the mass-wedding ceremony organized by a local charity welfare trust.

Photography: ASIF HASSAN/AFP/Getty Images.

MISSION AND VISION

The Center for Reproductive Rights uses the law to advance reproductive freedom

as a fundamental human right that all governments are legally obligated to protect,

respect, and fulﬁll.

Reproductive freedom lies at the heart of the promise of human dignity, self-

determination, and equality embodied in both the U.S. Constitution and the

Universal Declaration of Human Rights. The Center works toward the time when

that promise is enshrined in law in the United States and throughout the world.

We envision a world where every woman is free to decide whether and when to

have children; where every woman has access to the best reproductive healthcare

available; where every woman can exercise her choices without coercion or

discrimination. More simply put, we envision a world where every woman participates

with full dignity as an equal member of society.

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CHILD MARRIAGE AND

PERSONAL LAWS IN SOUTH ASIA

INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS

VIOLATIONS BASED ON RELIGIOUS NORMS

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CENTER FOR REPRODUCTIVE RIGHTS CHILD MARRIAGE AND PERSONAL LAWS IN SOUTH ASIA: INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS VIOLATIONS BASED ON RELIGIOUS NORMS

In South Asia, marriages, including child marriages, are typically performed

according to the religious custom or tradition of the concerned parties.

In most

countries in the region, personal laws, which apply only to members of a particular

religious group and may be codiﬁed or uncodiﬁed, set forth the requirements

for marriage under that speciﬁc religion, including the minimum legal age of

marriage. Personal laws were granted legal prominence by colonial governments

that conceded the regulation of issues pertaining to family and property rights as a

means to negotiate for broader legal reforms.

One exception is Nepal, which was

never colonized by a foreign power, although its legal system is rooted in principles

of Hindu law that were codiﬁed in the 1800s.

Personal laws continue to exist in

Afghanistan, Bangladesh, India, Pakistan, and Sri Lanka.

Where personal laws

are recognized in law, they are given wide deference by citizens and government

ofﬁcials, even when they reﬂect discriminatory traditional and patriarchal

norms that contradict national constitutional protections of gender equality and

nondiscrimination.

Personal laws often undermine national legislation intended to prohibit child

marriage by establishing weaker legal standards concerning the minimum legal

age of marriage, the legal status of marriages performed below such an age,

and married girls’ right to dissolve such marriages.

(See “Personal Laws and

Child Marriage in India,” p.3.) These laws often perpetuate child marriage by

codifying or giving legal weight to harmful customs and traditional attitudes that

discriminate against women and girls or place them in subordinate roles. The

interplay and tension between national legislation—which is generally applicable

to the population regardless of religious afﬁliation—and personal laws can result

in ambiguity around women’s and girls’ rights with regard to child marriage and

can lead to violations of constitutionally and internationally protected rights that

manifest in sexual violence and a continuum of reproductive health harms. The

United Nations’ (U.N.) 2006 World Report on Violence against Children highlights

the detrimental role of personal laws, noting that they often undermine protective

legislation by supporting traditional attitudes that condone harmful practices.

Similarly, the 2014 report of the Ofﬁce of the High Commissioner for Human

Rights on preventing and eliminating child marriage identiﬁes the continued legal

recognition of personal laws that violate human rights standards as a key challenge

to the enforcement of laws prohibiting child marriage, and calls on governments to

harmonize their national laws with international human rights standards.

PERSONAL LAWS AND

CHILD MARRIAGE IN INDIA

In India, child marriage is regulated under general legislation—namely, the Prohibition of Child

Marriage Act—and by a range of personal laws. The inconsistencies between the PCMA and

personal laws exempliﬁes the legal maze that girls throughout the region often ﬁnd themselves

in when facing child marriages. The section below highlights the contradictions that persist in

India’s plural legal system

with regard to consent, the minimum legal age of marriage, punish-

ments for child marriage, and married girls’ right to dissolve child marriages.

Prohibition of Child Marriage Act (PCMA): Under the PCMA, involvement by parents or

guardians, religious ofﬁcials, or others in promoting, negligently failing to stop, or attending

and participating in the marriage of a girl below the age of 18 and a boy below the age of 21

is punishable by law.

Marriages involving girls below 18 years are void if the girl was taken

by force or “enticed” away from home.

While child marriages in general are not explicitly

recognized as forced, they are recognized as voidable within two years of a girl reaching 18 years

of age.

To dissolv e a child marriage u nder the P CMA, a gir l m ust obt ain a decr ee of null ity.

Hindu Marriage Act (HMA): Under the HMA, marriages of girls and boys below the age of 18

are punishable. However, the punishment provisions apply only to the couple themselves;

even where a child marriage occurs without the agreement of the parties themselves, there

is no penalty for the parents or guardians who arranged the marriage or for the ofﬁcials who

solemnized it.

Marriages below the age of 18 are voidable only if a girl was married before the

age of 15 and challenges the marriage before she turns 18.

This means that a girl married

after the age of 15, even if married without regard to her preference, is considered to be in a

valid marriage. While the HMA does not explicitly require consent for marriage, it requires that

neither party be incapable of giving consent due to “unsound mind” or “even if capable of

giving a valid consent, is not suffering from a mental disorder or insanity.”

Further, marriages

are voidable where the “consent of the petitioner…was obtained by force or by fraud.”

Child

marriages, however, are not speciﬁcally recognized as involving force or fraud. To dissolve a

child marriage under the HMA, a girl must seek a divorce.

Muslim personal laws: Though uncodiﬁed in India, Muslim personal laws establish puberty—

which is presumed to be 15 years of age—as the minimum age of marriage.

Since marriage

is considered a contract under Muslim law, the marriage of a girl above this age without her

consent is legally void.

Parents or guardians are permitted to arrange marriages on behalf

of girls below the age of 15,

but girls can utilize the “option of puberty” to render such

marriages void—however, this option is only available if a girl challenges the marriage before

turning 18 and if the marriage has not yet been consummated.

This decision must be

conﬁrmed by a court.

Indian Christian Marriage Act (ICMA): The ICMA requires that a preliminary notice for all mar-

riages involving girls below the age of 18 and boys below the age of 21 be published at least 14

days prior to the marriage.

Minors (deﬁned as anyone below the age of 21) are not allowed to

marry before the preliminary notice period has expired, unless there is consent from a parent or

guardian.

After this notice period, a marriage involving minors can go forward without consent

from a parent or guardian.

No consent is required for the marriage of anyone above the age of

21.

The section discussing penalties for the marriage of minors lays out penalties only with

regard to marriages performed without the parents’ or guardians’ consent before the preliminary

notice period has expired.

In other words, the marriage of minors is considered valid; being a

minor at the time of marriage is not recognized as a ground for dissolution of marriage under the

Indian Divorce (Amendment) Act, 2001, which sets forth regulations for divorce for Christians.

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I. INTERNATIONAL HUMAN RIGHTS STANDARDS:

RECOGNITION OF VIOLATIONS RESULTING FROM

DISCRIMINATORY PERSONAL LAWS

International human rights law obligates governments to ensure that religiously based

laws, including personal laws, are not used to justify or legitimize violations of women’s

and girls’ rights. The failure to harmonize personal laws with international human rights

standards constitutes a violation of several human rights, including the following:

RIGHT TO EQUALITY AND NONDISCRIMINATION

International human rights treaties guarantee women’s right to equality and

nondiscrimination.

For example, the Convention on the Elimination of All Forms

of Discrimination against Women (CEDAW) requires states parties to “condemn

discrimination against women in all of its forms” and “to modify the social and

cultural patterns of conduct of men and women, with a view to achieving the

elimination of prejudices and customary and all other practices which are based on

the idea of inferiority or the superiority of either of the sexes or on stereotyped roles

for men and women.”

In addition, U.N. treaty monitoring bodies have stated that personal laws

permitting child marriage are discriminatory towards women.

In its General

Recommendation 29 concerning equality in marriage, the Committee on the

Elimination of Discrimination against Women (CEDAW Committee), which monitors

states’ compliance with CEDAW, afﬁrms that “identity-based personal status laws

and customs perpetuate discrimination against women and that the preservation

of multiple legal systems is in itself discriminatory against women. Lack of

individual choice relating to the application or observance of particular laws and

customs exacerbates this discrimination.”

The committee recognizes that women’s

rights under CEDAW are violated where countries have adopted constitutions that

uphold women’s equality and nondiscrimination but fail to protect women from

the discriminatory effects of marriage under customary practices and religious

laws.

It has afﬁrmed that “variations in law and practice relating to marriage have

wide-ranging consequences for women, invariably restricting their rights to equal

status and responsibility within marriage.”

Similarly, the U.N. Special Rapporteur

on violence against women, its causes and consequences (SRVAW) has expressed

concern over personal laws’ discriminatory provisions on the dissolution of marriage

and maintenance provisions, which cause “many women [to] stay in violent marriages

out of fear that their de jure and de facto legal status will be negatively impacted, and

also that they will be denied ﬁnancial support if they are divorced or separated.”

The SRVAW has also noted that women’s rights may be violated where customary

practices and forums of arbitration or sentencing create barriers to women’s access

to justice and due process.

(Personal Laws and Child Marriage in India continued...)

Parsi Marriage and Divorce Act (PMDA): Under the PMDA, the marriage of a girl under

the age of 18 is considered invalid.

However, in the provision on grounds under which a

marriage can be declared void, age is not included.

The failure of the PMDA to clearly

state whether a child marriage is invalid from the outset or needs to be invalidated through

a legal process creates ambiguity about girls’ right to leave such marriages.

The PMDA

is silent on the issue of consent. It also fails to discuss penalties for the violation of the

minimum age of marriage.

Jewish personal laws: Under Jewish personal laws, which are uncodiﬁed, the minimum age

of marriage for girls is puberty, which is presumed to occur at 12 years.

Marriage before

puberty is strictly prohibited, but any marriage after that age is recognized as legal and

valid.

The PCMA does not discuss personal laws other than to modify the punishments under the

HMA.

The lack of clarity over which law prevails with regard to the minimum legal age

of marriage has resulted in inconsistent judgments by state high courts throughout India.

Despite the existence of high court cases where personal laws continue to be referred to as

the primary source of law in determining the legal status of child marriages,

some recent

high court decisions—including a 2013 Karnataka High Court ruling that the PCMA is

applicable to all girls, even those who are Muslim—have afﬁrmed the primacy of the PCMA:

The prime reason for bringing in the [PCMA] is the prohibition of the solemnization of the

child marriage. When the prescribed marriageable age of the girl is 18 years, this Court

cannot be called upon to issue the sought declaration that the provisions of the [PCMA] are

not applicable for the petitioner, as she belongs to Muslim community. The courts have the

power coupled with the duty to prevent and not to promote the child marriages. This Court

cannot and would not pass an order by virtue of which little girls become child brides.

The Supreme Court of India has yet to render a decision on the primacy of the PCMA over

personal laws. Reports indicate that in the absence of clear recognition that the PCMA

supersedes personal laws, local governments in other states, such as Kerala, have passed

circulars permitting the registration of the marriage of Muslim girls under the age of 18 as

permitted under Muslim personal law.

Importantly, in concluding observations issued by the Committee on the Rights of the Child

in June 2014, the government of India has been urged to clarify that the PCMA supersedes

personal status laws.

“The Committee urges the State party to ensure the effective implementation of the Prohibi-

tion of Child Marriage Act (PCMA, 2006), including by clarifying that the PCMA supersede

the different religious-based Personal Status Laws.”

— Concluding Observations issued by the Committee on the Rights of the Child (CRC Committee)

to India on June 13, 2014.*

*CRC Committee, Concluding Observations: India, para. 52, U.N. Doc. CRC/C/IND/CO/3-4 (2014).

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CENTER FOR REPRODUCTIVE RIGHTS CHILD MARRIAGE AND PERSONAL LAWS IN SOUTH ASIA: INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS VIOLATIONS BASED ON RELIGIOUS NORMS

Governments have an immediate obligation under international law to reform

personal laws that discriminate against women. The CEDAW Committee has

established that states parties must address inequality stemming from personal

laws: “Personal laws should embody the fundamental principle of equality

between women and men, and should be fully harmonized with the provisions of the

Convention so as to eliminate all discrimination against women in all matters relating

to marriage and family relations.”

Further, “[i]n the absence of a uniﬁed family

law, the system of personal status laws should provide for individual choice as to the

application of religious law, ethnic custom or civil law at any stage of the relationship.”

In the context of child marriage, harmonizing personal laws with international legal

standards requires not only ensuring a minimum legal age of marriage of 18 years

but also eliminating practices that contribute to the marriage of girls—for example,

dowry or bride price—and making the registration of marriage compulsory

and accessible.

Governments must also ensure equal rights concerning the

dissolution of marriage, regardless of the provisions of personal laws.

With regard to child marriage, which is recognized as a form of violence against

women and girls,

governments must ensure that personal laws are not used

to condone impunity concerning the practice. The U.N. Declaration on the

Elimination of Violence against Women adopted by the U.N. General Assembly

afﬁrms that “States should condemn violence against women and should not

invoke any custom, tradition, or religious consideration to avoid their obligations

with respect to its elimination.”

In addition, the SRVAW has stated that where

personal laws condone child marriage, “there should be maximum international

and national pressure to ensure that religious and customary laws conform to

universally accepted international norms,” including respect for women’s right to

full and free consent to marriage.

Under international law, a state party’s failure

to confront violations of women’s human rights committed in the name of religion

is itself a human rights violation.

“Blind adherence to these practices and State inaction with regard to these

customs and traditions have made possible large-scale violence against women.

States are enacting new laws and regulations with regard to the development of a

modern economy and modern technology and to developing practices which suit a

modern democracy, yet it seems that in the area of women’s rights change is slow

to be accepted.”

—Special Rapporteur on Violence against women, its causes and consequences

Despite signiﬁcant economic development in the region and legislative reform

in many other areas of law, discriminatory personal laws continue to be deferred

to and enforced throughout the region because the reform of such laws is often

viewed as politically inexpedient. Government inaction on these laws is due

largely to the patriarchal roots of child marriage and the role of personal laws

in upholding societal and religious power structures.

The SRVAW and the

U.N. Special Rapporteur on freedom of religion or belief have both afﬁrmed that

cultures are not static and immutable; rather, prevalent religious principles that

oppress women typically emerge through the male-led interpretations of ideology,

which often reﬂect an “attitude of male superiority” and perpetuate prejudicial

stereotypes about women as primarily wives and mothers rather than decision-makers

or breadwinners.

According to the SRVAW, “[c]ontrary to what some may claim

or fear, such an engagement with culture does not erode or deform local culture

but rather challenges its discriminatory and oppressive aspects. This of course may

provoke resistance from those who have a vested interest in preserving the status quo.

Negotiating culture with human rights inherently questions, delegimates, destabilizes,

ruptures, and, in the long run, destroys oppressive hierarchies.” The SRVAW has

maintained that the process of negotiating culture with human rights must not

perpetuate existing hierarchies by engaging solely with presumed religious leaders;

instead, it must also engage in outreach to marginalized groups within cultures,

including women.

(See “Comparative Examples of Positive Reform in the Region”).

COMPARATIVE EXAMPLES

OF POSITIVE REFORM IN THE REGION

Comparative developments within the region illustrate how the positive reform of child marriage

laws can occur. Since 1998, the CEDAW Committee has called on states parties to “tak[e] into

consideration the experiences of countries with similar religious backgrounds and legal systems

that have successfully accommodated domestic legislation to commitments emanating from

international legally binding instruments.”

Nepal provides a leading example of how religion-based laws can be reformed to better uphold

women’s rights. The country’s legal code, the Muluki Ain, is rooted in Hindu religious principles.

In the 1990s, while Nepal was still ofﬁcially a Hindu kingdom, women’s rights activists

launched a campaign to reform the Muluki Ain to eliminate discriminatory provisions. Following

a review of the Muluki Ain that led to the identiﬁcation of over 100 sex- and gender-based

discriminatory provisions and in response to a legal petition arguing that the inheritance

provisions of the Muluki Ain were inconsistent with the constitutional rights to equality and

nondiscrimination in force at the time, the Supreme Court of Nepal ordered the legislature

to amend the existing discriminatory laws against women as mandated by the constitution

within one year.

Women’s rights activists used the momentum from this decision in their

advocacy campaign, which ultimately resulted in the Eleventh Amendment to the Muluki Ain.

This amendment reformed a range of discriminatory provisions, including those pertaining to

marriage, abortion, and ancestral property.

More recently, the provincial legislature in Sindh, Pakistan, enacted the Sindh Child Marriage

Restraint Act 2013, a groundbreaking law declaring the minimum legal age of marriage to be

18 years for girls and boys.

This legislation marks a major step forward in Pakistan, where the

general law on child marriage establishes 16 as the minimum age of marriage for girls.

The

2013 law was passed in a national context where the establishment of any minimum legal age

of marriage has been opposed by religious groups that view such legal provisions as violations of

Islam and have argued that girls as young as nine can be married if they have reached puberty.

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CENTER FOR REPRODUCTIVE RIGHTS CHILD MARRIAGE AND PERSONAL LAWS IN SOUTH ASIA: INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS VIOLATIONS BASED ON RELIGIOUS NORMS

Governments have a nonderogable obligation to initiate the reform of discriminatory

personal laws or to provide a secular alternative that is consistent with human

rights standards. The failure to reform personal laws cannot be justiﬁed on

the premise that the communities in question lack the political will to uphold

women’s rights. The Committee on Economic, Social and Cultural Rights, which

monitors states’ implementation of the International Covenant on Economic,

Social and Cultural Rights, has afﬁrmed that the immediate obligation to ensure

women’s equal enjoyment of their rights “cannot be conditioned to willingness of

concerned communities to amend their laws,”

but rather must be undertaken

by governments themselves. Further, the CEDAW Committee has recognized that

governments “must address patriarchal traditions and attitudes and open family

law and policy to the same scrutiny with regard to discrimination against women

that is given to the ‘public’ aspects of individual and community life.”

(See

“The Right to Freedom of Religion and Belief Does Not Permit Violations of Women’s

Rights,” p.9.)

The obligation to ensure that traditional, religious, and cultural practices and

laws do not violate women’s rights is a “core aspect” of CEDAW, meaning that

the failure to comply with these provisions cannot be justiﬁed even where a state

has made declarations or reservations to articles pertaining to equality generally

or equality within marriage.

For example, despite India’s own constitutional

directive principle envisioning the introduction of a uniform civil code,

the

government has maintained declarations to CEDAW article 5(a) requiring the

elimination of stereotypes and prejudicial customary and other practices and article

16(1) guaranteeing women’s equal rights within marriage. In explaining these

declarations, the Indian government stated that it would “abide by and ensure these

provisions [only] in conformity with its policy of non-interference in the personal

affairs of any Community without its initiative and consent.”

Bangladesh also

maintains reservations to CEDAW articles 2 and 16(1)(c) on equality and women’s

equal rights in the dissolution of marriage, stating that these provisions conﬂict with

Sharia law.

Such declarations are inconsistent with state obligations under CEDAW

itself, and are thus considered invalid under international human rights law. More

importantly, they expose the unwillingness of these governments to recognize and

eliminate discrimination against women based on religious grounds.

THE RIGHT TO FREEDOM OF

RELIGION AND BELIEF DOES NOT PERMIT

VIOLATIONS OF WOMEN’S RIGHTS

The Human Rights Committee has afﬁrmed that while the right to freedom of religion or belief

is a fundamental human right, it cannot be invoked to justify discrimination.

Similarly, the

Special Rapporteur on freedom of religion or belief has recognized that the right to freedom

of religion does not mean that cultural practices that are discriminatory toward women are

permissible: “Not all traditions are equally valid, and those which run counter to human rights

must be combated. It is essential to distinguish between tolerance, which is necessary, and

blind acceptance of customs which may involve degrading treatment or blatant violations of

human rights. In order to ensure that freedom of religion does not undermine women’s rights,

it is vital that the right to difference which that freedom implies should not be interpreted as a

right to indifference to the status of women.”

The Special Rapporteur on freedom of religion or belief has emphasized that the role of the

law is to prevent discrimination arising from religious beliefs, and has called on states to take

a number of measures in this regard: enact legislation to eliminate customs and practices

that are discriminatory or harmful to women, including child marriage; introduce legal literacy

training strategies at all levels of society, with the aim of altering discriminatory cultural norms

and attitudes; and adopt necessary measures to ensure that religious and cultural customs do not

hamper women’s advancement, particularly with regard to marriage and its dissolution.

“It can no longer be taboo to demand that women‘s rights take priority over intolerant beliefs

that are used to justify gender discrimination….In a number of countries, such denial of their

rights is supported by discriminatory legislation and justiﬁed in the name of religion or tradition.

There can never be true gender equality in the public arena if women continue to be oppressed

by the weight of discrimination within their homes, all too often in the name of divine sanction.”

—Special Rapporteur on freedom of religion or belief

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CENTER FOR REPRODUCTIVE RIGHTS CHILD MARRIAGE AND PERSONAL LAWS IN SOUTH ASIA: INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS VIOLATIONS BASED ON RELIGIOUS NORMS

RIGHT TO HEALTH

Personal laws that permit child marriage or restrict girls’ right to leave such

marriages trap married girls in situations that endanger their health and

survival. Married girls face grave risks to their bodily integrity stemming from

early pregnancy and sexual and other forms of physical violence.

International

human rights law recognizes “the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health.”

Governments have

an immediate obligation to ensure this right without discrimination, including

by adopting “effective and appropriate measures to abolish harmful traditional

practices affecting the health of children, particularly girls, including early

marriage.”

Ensuring the right to health requires states to refrain from imposing

or enforcing discriminatory practices relating to women’s health status or needs.

Where personal laws undermine legal protection against child marriage and expose

girls to risks of sexual violence and reproductive health harm that often occur

within child marriages, the right to health requires states to take corrective action.

The CEDAW Committee has speciﬁcally criticized states parties whose ofﬁcial

policies reﬂect the inﬂuence of religious ideologies that compromise women’s

health.

Governments have an obligation to review and, where necessary, amend

laws to ensure the protection of the right to health without discrimination.

This

requires the enactment and effective enforcement of laws prohibiting the marriage

of girls, regardless of parental consent, under the age of 18.

RIGHT TO FREEDOM FROM TORTURE AND CRUEL, INHUMAN, OR DEGRADING TREATMENT

Child marriage exposes girls to severe physical and mental suffering, including the

trauma of early pregnancy and marital rape, which, in circumstances where the girl

has no practical or legal recourse for her suffering, may rise to the level of torture

or cruel, inhuman, or degrading treatment.

Under the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment, states parties

must ensure that constitutional and legislative protections against gender-based

discrimination trump customary laws that condone discriminatory practices.

The Committee against Torture, which monitors states’ implementation of this

convention, has called for urgent legislative measures in cases where states

parties allow personal laws to permit the marriage of girls, stating that the failure

to reform personal laws “amounts to violence against [girls] as well as inhuman or

degrading treatment.”

The committee has also afﬁrmed that governments cannot

absolve themselves of this obligation by allowing communities to create their

own individual ages for marriage under personal laws.

Furthermore, the U.N.

Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or

punishment has recognized that where states create and implement discriminatory

laws that trap women in situations of violence, they are complicit in the violence

that women suffer.

Similarly, where governments grant legal recognition to personal

laws allowing child marriage and fail to harmonize these laws with human rights

standards, they are accountable for the severe pain and suffering caused as a result.

RIGHT TO PRIVACY

Under international human rights law, states that allow personal laws to deprive

women of their legally recognized human rights are in violation of the right to

freedom from arbitrary or unlawful interference with privacy, family, and home and

to the protection of law from such interference or attacks.

The Human Rights

Committee, which monitors states’ compliance with the International Covenant on

Civil and Political Rights (ICCPR), has stated that interference with individual privacy

may be considered “unlawful” if it is conducted on the basis of a national law that

is in violation of the ICCPR, and is considered “arbitrary” if it is based on a lawful

interference that is not reasonable and not in conformity with the ICCPR.

Personal

laws that contain discriminatory provisions, including ones that recognize a minimum

legal age of marriage below 18 or that grant legal status to child marriages, violate

the ICCPR and thus can be considered both unlawful and arbitrary. The Human

Rights Committee has stated that article 17, which recognizes the right to privacy,

requires states parties to abolish discriminatory provisions of personal laws, including

those on consent.

Personal laws that do not require the informed consent of both

parties violate women’s right to privacy by exposing them to arbitrary interference

with an important private decision. This violation is compounded where laws allow

parental consent to substitute for individual consent.

II. CONCLUSION AND RECOMMENDATION

Eliminating child marriage in South Asia requires that governments in the region

ensure that violations of women’s and girls’ rights resulting from child marriage are

not legitimized through discriminatory personal laws and that their legal systems

consistently and clearly condemn child marriage. The ambiguity and legal barriers

created by personal laws that undermine national laws against child marriage are not

justiﬁable on any grounds. Governments that recognize and allow the enforcement

of discriminatory personal laws are complicit in the violations of women’s and girls’

rights resulting from child marriage. Governments have an immediate legal obligation

to eliminate discriminatory provisions in personal laws and to harmonize all laws on

child marriage with international human rights standards. Models from Nepal and

Pakistan show that despite political concerns, positive reforms to marriage and family

laws are achievable with sufﬁcient prioritization by the government. Government

leadership in eliminating discriminatory provisions from personal laws is essential for

sending a clear signal that impunity for child marriage will not be tolerated and that

women’s and girls’ dignity and legal rights must be respected.

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See UNICEF, EARLY MARRIAGE: A HARMFUL TRADITIONAL

PRACTICE 4, available at http://www.unicef.org/gender/

ﬁles/Early_Marriage_Harmful_Traditional_Practice.pdf.

See, e.g., Special Rapporteur on Violence against

Women (SRVAW) Yakın Ertürk, Intersections between

culture and violence against women, para. 58,

U.N. Doc. A/HRC/4/34 (2007) [hereinafter SRVAW

Yakın Ertürk, Intersections between culture and

violence against women].

Md. Ershadul Karim and Sirjana Sharma Pokhrel,

Research Guide of the Legal System of Kingdom of

Nepal (2012), available at http://www.nyulawglobal.

org/globalex/Nepal.htm#legalandpolit; CENTER FOR

REPRODUCTIVE RIGHTS, WOMEN OF WORLD: SOUTH ASIA,

CHAPTER ON NEPAL 118, 121 (2004).

See, e.g., Shiite Personal Status Law (amended), art.

99 (2009) (Afg.) [hereinafter Shiite Personal Status

Law (Afg.)]; The Christian Marriage Act, No. 15 of

1872, (Bangl.) [hereinafter Christian Marriage Act

(Bangl.)]; The Hindu Marriage Act, No. 25 of 1955,

art. 13(2)(iv) (India) [hereinafter Hindu Marriage Act

(India)]; JAYA SAGADE, CHILD MARRIAGE IN INDIA: SOCIO-LEGAL

AND HUMAN RIGHTS DIMENSIONS 79 (2005) [hereinafter JAYA

SAGADE, CHILD MARRIAGE IN INDIA] (describing the Muslim

Personal Law in India); The Indian Christian Marriage

Act, No. 15 of 1872, (India) [hereinafter Indian

Christian Marriage Act (India)]; The Parsi Marriage and

Divorce Act, No. 3 of 1936 (India) [hereinafter Parsi

Marriage and Divorce Act (India)]; Muslim Family Laws

Ordinance No. 8 of 1961, art. 12 (Pak.); Kandyan

Marriage and Divorce Act (amended in 1995) (Sri

Lanka); Muslim Marriage and Divorce Act (1954) (Sri

Lanka) [hereinafter Muslim Marriage and Divorce Act

(Sri Lanka)].

See, e.g., hereinafter Christian Marriage Act (Bangl.),

supra note 4, arts. 19, 60(1); Muslim Marriage

and Divorce Act (Sri Lanka), supra note 4 (does not

specify a minimum age of marriage); JAYA SAGADE, CHILD

MARRIAGE IN INDIA, supra note 4, at 79 (describing

the Muslim Personal Law in India, which allows for

marriage at puberty, presumed to occur at 15 years

of age); Sir Dinshah Fardunji Mulla, PRINCIPLES OF

MAHOMEDAN LAW 114 (1907) [hereinafter Sir Dinshah

Fardunji Mulla, PRINCIPLES OF MAHOMEDAN LAW (1907)]

(puberty is presumed to be over by the age of 15). See,

e.g., Shiite Personal Status Law (Afg.), supra 4, art. 99

(boys aged 18 and girls aged 16 may marry without

parental consent; a guardian can consent for a minor);

Kandyan Marriage and Divorce Act (amended in 1995),

arts. 4(2), 66(a)-(b) (Sri Lanka) (minimum legal age is

18 years unless the parties cohabitate for one year after

attaining legal age or if a child is born within marriage

before either attains legal age).

Paulo Sérgio Pinheiro, UNITED NATIONS SECRETARY-

GENERAL’S STUDY ON VIOLENCE AGAINST CHILDREN: UN WORLD

REPORT ON VIOLENCE AGAINST CHILDREN 18, 38 (2006),

available at http://www.unicef.org/lac/full_tex(3).pdf.

Human Rights Council, Preventing and eliminating

child, early, and forced marriage, paras. 42, 52, U.N.

Doc. A/HRC/26/22 (2014).

The Special Representative to the Secretary General on

Violence against Children (SRSG on Violence against

Children) has deﬁned “plural or multiple legal systems”

as indicating “the presence of more than one source

of law in a country’s legal system, including formal

statutory legislation in force alongside a system based

on tradition and religion. The existence of plural legal

systems in a given state is in some cases made explicit

in the national constitution.” SRSG ON VIOLENCE AGAINST

CHILDREN & PLAN, PROTECTING CHILDREN FROM HARMFUL

PRACTICES IN PLURAL LEGAL SYSTEMS 10 (2012) available

at http://srsg.violenceagainstchildren.org/sites/default/

ﬁles/publications_ﬁnal/SRSG_Plan_harmful_practices_

report_ﬁnal.pdf.

The Prohibition of Child Marriage Act, 2006, No. 6

of 2007, paras. 2(a), 11 (2007) (India) [hereinafter

PCMA (India)].

Id. paras. 3, 12.

Id.

Id. para. 3.

Id. para. 20.

Hindu Marriage Act (India), supra note 4, arts. 11,

13(2)(iv).

Id. art. 5(ii).

Id. arts. 5(ii), 12(1).

Id. arts. 11, 13(2)(iv).

JAYA SAGADE, CHILD MARRIAGE IN INDIA, supra note 4, at 79;

Sir Dinshah Fardunji Mulla, PRINCIPLES OF MAHOMEDAN

LAW (1907), SUPRA NOTE 5, AT 115.

See JAYA SAGADE, CHILD MARRIAGE IN INDIA, supra note 4, at

80 (citing F.B. Tyabji, MUSLIM LAW 52 (1968)).

Id.

Dissolution of Muslim Marriages Act No. 8 of 1939, art.

2(vii) (India).

See JAYA SAGADE, CHILD MARRIAGE IN INDIA, supra note 4, at

80 (citing F.B. Tyabji, MUSLIM LAW 52 (1968)).

Indian Christian Marriage Act (India), supra note 4,

paras. 3, 60(1).

]25

Id. paras. 3, 60(1).

Id. para. 19.

Id. para. 70.

The Indian Divorce (Amendment) Bill, Act. No. 51 of

2011, para. 5 (2011).

Parsi Marriage and Divorce Act (India), supra note 4,

arts. 3(1)(c).

Id. paras. 30-32.

JAYA SAGADE, CHILD MARRIAGE IN INDIA, supra note 4, at 81.

Id.

PCMA (India), supra note 9, para. 20.

Mrs. Tahra Begum vs. State of Delhi & Others, W.P.

(CRL) No. 446/2012, Delhi H.C. (2012) (India).

Mis. Seema Begaum D/O Khasimsab vs State Of

Karnataka, para. 23, W.P. No. 75889/2013, Karnataka

H.C. (2013) (India).

THE TELEGRAPH, Child Marriage Row in Kerala, http://

www.telegraphindia.com/1130624/jsp/nation/

story_17041236.jsp#.U2qRM4Xo4hU (last accessed

May 28, 2014).

International Covenant on Civil and Political Rights,

adopted Dec 16

th,

1966, G.A. Res. 2200A (XXI), arts.

3, 26, U.N. GAOR, 21st Sess., Supp. No. 16, U.N.

Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into

force Mar. 23, 1976) [hereinafter ICCPR]; International

Covenant on Economic, Social, and Cultural Rights,

adopted Dec. 16th, 1966, G.A. Res. 2200A (XXI),

art. 3, U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316

(1966) (entered into force Jan. 3, 1976) [hereinafter

ICESCR]; Convention on the Elimination of All Forms of

Discrimination against Women, adopted Dec. 18, 1979,

G.A. Res. 34/180, U.N. GOAR, 34th Sess., Supp.

No. 46, at 47, art. 1, U.N. Doc. A/34/46, U.N.T.S.

13 (entered into force Sept. 3rd, 1981) [hereinafter

CEDAW].

CEDAW, supra note 38, arts. 2, 5(a).

Human Rights Committee, Concluding Observations:

Yemen, para. 7, U.N. Doc. CCPR/CO/75/YEM (2002).

See also Human Rights Committee, Concluding

Observations: Zimbabwe, para. 12, U.N. Doc.

CCPR/C/79/Add. 89 (1998); Committee on Economic,

Social and Cultural Rights (ESCR Committee),

Concluding Observations: Afghanistan, paras. 18, 28,

U.N. Doc. E/C.12/AFG/CO/2-4 (2010); Philippines,

para. 18, U.N. Doc. E/C.12/PHL/CO/4 (2008).

CEDAW Committee, General Recommendation No. 29:

on article 16 of the Convention on the Elimination of

All Forms of Discrimination against Women- Economic

consequences of marriage, family relations and

their dissolution, para. 14, U.N. doc. CEDAW/C/

GC/29 (2013) [hereinafter CEDAW Committee, Gen.

Recommendation No. 29].

Id. para. 10.

CEDAW Committee, General Recommendation No. 21:

Equality in marriage and family relations, (13

Sess.,

1994), in Compilation of General Comments and

General Recommendations Adopted by Human Rights

Treaty Bodies, at 337, para. 17, U.N. Doc. HRI/GEN/1/

Rev.9 (Vol. II) (2008) [hereinafter CEDAW Committee,

Gen. Recommendation No. 21].

SRVAW Rashida Manjoo, Mission to Bangladesh

(20–29 May 2013)*, paras. 30-31, U.N. Doc. A/

HRC/26/38/Add.2 (2014).

Id. para. 75.

CEDAW Committee, Gen. Recommendation No. 29,

supra note 41, para. 15.

Id.

Id. paras. 26, 33.

CEDAW Committee, Gen. Recommendation No. 21,

supra note 43, para. 17.

CRC Committee, General Comment No. 13: The right

of the child from freedom of all forms of violence, 56

Sess., para. 29(e), U.N. Doc. CRC/C/GC/13 (2011);

Concluding Observations: Afghanistan, paras. 18, 28,

U.N. Doc E/C.12/AFG/CO/2-4 (2010); Philippines,

para. 18, U.N. Doc E/C.12/PHL/CO/4 (2008). See

SRVAW Radhika Coomaraswamy, Cultural practices

in the family that are violent towards women, para. 8,

U.N. Doc. E/CN.4/2002/83 (2002) [hereinafter SRVAW

Radhika Coomaraswamy, Cultural practices in the

family that are violent against women]; CAT Committee,

Concluding Observations: Yemen, para. 31, U.N.

Doc. CAT/C/YEM/CO/2, (2009); CEDAW Committee,

Concluding Observations: Italy, paras. 52-53, U.N.

Doc. CEDAW/C/ITA/CO/6 (2011); Zambia, paras.

33-34, U.N. Doc. CEDAW/C/ZMB/CO/5-6 (2011);

General Recommendation No. 19: Violence against

women, (11th Sess., 1992), in Compilation of General

Comments and General Recommendations Adopted

by Human Rights Treaty Bodies, at 331, para.11, U.N.

Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008).

General Assembly, Declaration on the Elimination

of Violence against Women, art. 4, U.N. Doc. A/

RES/48/104 (1993).

SRVAW Radhika Coomaraswamy, Cultural practices in

the family that are violent towards women, supra note

50, para. 8.

SRVAW Yakın Ertürk, Integration of the human rights

of women and the gender perspective: violence against

women. The due diligence standard as a tool for the

elimination of violence against women, para. 88, U.N.

Doc. E/CN.4/2006/61 (2006).

SRVAW Radhika Coomaraswamy, Further promotion

and encouragement of human rights and fundamental

freedoms, para. 67, U.N. Doc. E/CN.4/1995/42 (1994).

ASIAN FORUM OF PARLIAMENTARIANS ON POPULATION AND

DEVELOPMENT (AFPPD), INTERNATIONAL CENTER FOR

RESEARCH ON WOMEN (ICRW), UNFPA, AND AUSTRALIAN

AGENCY FOR INTERNATIONAL DEVELOPMENT, CHILD MARRIAGE

IN SOUTHERN ASIA: POLICY OPTIONS FOR ACTION 3 (2012),

AVAILABLE AT HTTP://WWW.AFPPD.ORG/FILES/1113/4992/7261/

HILD_MARRIAGE.PDF; JAYA SAGADE, CHILD MARRIAGE IN INDIA,

SUPRA NOTE 4, AT 7-9, 13; FORUM FOR WOMEN, LAW AND

DEVELOPMENT (FWLD) AND UNITED NATIONS DEVELOPMENT

FUND FOR WOMEN (UNIFEM), CHILD MARRIAGE: LEGAL

ENDNOTES

Payal Shah, Senior Legal Adviser for Asia, was this fact sheet’s primary author. Melissa Upreti, Regional Director for Asia, led the

conceptualization of the fact sheet, supervised the research and edited multiple drafts. Kathryn Bailey, Global Legal Program Assistant,

supported the ﬁnalization of the fact sheet by fact-checking and cite-checking the sources. Johanna Fine, Legal Adviser and Manager

for Projects & Operations, reviewed a ﬁnal draft and provided helpful feedback. Carveth Martin, Senior Creative and Designer, and Chi

Nguyen, Graphic Designer, designed the cover and layout. The factsheet was copyedited by Morgan Stoffregen. This fact sheet was

supported by a grant from the Ford Foundation.

14 15

CENTER FOR REPRODUCTIVE RIGHTS CHILD MARRIAGE AND PERSONAL LAWS IN SOUTH ASIA: INTERNATIONAL STANDARDS REQUIRING GOVERNMENTS TO END HUMAN RIGHTS VIOLATIONS BASED ON RELIGIOUS NORMS

RESPONSES 54-59 (2007); HUMAN RIGHTS LAW NETWORK

(HRLN), CHILD MARRIAGES AND THE LAW IN INDIA 17-18

(2005).

SRVAW Yakın Ertürk, Intersections between culture

and violence against women, supra note 2, paras. 53,

58; Special Rapporteur on freedom of religion or belief

Abdelfattah Amor, Study on freedom of religion or

belief and the status of women in the light of religion

and traditions (Addendum), paras. 92-93, U.N. Doc. E/

CN.4/2002/73/Add.2 (2009).

SRVAW Yakın Ertürk, Intersections between culture and

violence against women, supra note 2, para. 61.

CEDAW Committee, Gen. Recommendation No. 29,

supra note 41, para. 55 citing CEDAW Committee,

Concluding Observations: United Arab Emirates, para.

45, U.N. Doc. CEDAW/C/ARE/CO/1 (2010).

Meera Dhungana for FWLD v. Government of Nepal,

Writ No. 55/2058 B.S., S.C. Nepal (2002), Some

important decisions of Supreme Court on Constitutional

Law (2015-2062), Vol. 10(II) at 164, para. 23 (2006).

Legal Aid and Consultancy Center, Eleventh

Amendment of Country Code (Muluki Ain) on Women’s

Rights, 2002, available at http://archive.today/o5K6q.

Sindh Child Marriage Restraint Act 2013, art.

2(a) (2013) (Bangladesh); see also THE EXPRESS

TRIBUNE, SINDH ASSEMBLY PASSES BILL DECLARING

MARRIAGE BELOW 18 PUNISHABLE BY LAW, http://tribune.

com.pk/story/701321/sindh-assembly-passes-

bill-declaring-marriage-below-18-punishable-by-

law/?utm_source=CM+in+News+Update&utm_

campaign=539b88532d-Child_marriage_

in_the_News_6_May_20145_6_2014&utm_

medium=email&utm_term=0_1b4b6c6dbd-

539b88532d-381591761 (last accessed May 29,

2014).

The Child Marriage Restraint Act, No. 19 of 1929, art.

2(a) (Pak.).

See, e.g., Kalbe Ali, CII endorses underage marriage,

http://www.dawn.com/news/1107849/cii-endorses-

underage-marriage (last accessed May 29, 2014).

ESCR Committee, Concluding Observations: Sri Lanka,

para. 15, U.N. Doc. E/C.12/LKA/CO/2-4 (2010).

CEDAW Committee, Gen. Recommendation No. 29,

supra note 41, para. 18.

Id. para. 54.

INDIA CONST. art. 44.

CEDAW, Declarations and reservations made upon

signature and conﬁrmed upon ratiﬁcation (India),

Declaration I, available at https://treaties.un.org/

Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-

8&chapter=4&lang=en#EndDec.

CEDAW, Bangladesh (Reservations to Articles 2

and 16(1)(c)), available at https://treaties.un.org/

Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-

8&chapter=4&lang=en#EndDec.

Human Rights Committee, General Comment No. 28:

(Article 3) The equality of rights between men and

women (68

Sess., 2000), in Compilation of General

Comments and General Recommendations Adopted by

Human Rights Treaty Bodies, at 233, para. 21, U.N.

Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008).

Note by the Secretary General of the United Nations

General, Interim report of the Special Rapporteur of

the Commission on Human Rights on the elimination

of all forms of intolerance and of discrimination based

on religion or belief, para. 146, U.N. Doc. A/56/253

(2001).

Special Rapporteur on freedom of religion or belief

Abdelfattah Amor, Civil and political rights, including

the question of religious intolerance: Study on

freedom of religion or belief and the status of women

in the light of religion and traditions, para. 198(iii),

U.N. Doc. E/CN.4/2002/73/Add.2 (2009); see also

Special Rapporteur on freedom of religion or belief

Asma Jahangir, Elimination of all forms of religious

intolerance, para. 15, U.N. Doc. A/65/207 (2010)

[hereinafter Special Rapporteur on freedom of religion

or belief Asma Jahangir, Elimination of all forms of

religious intolerance].

Special Rapporteur on freedom of religion or belief

Asma Jahangir, Elimination of all forms of religious

intolerance, supra note 72, para. 69.

CENTER FOR REPRODUCTIVE RIGHTS, CHILD MARRIAGE IN SOUTH

ASIA: STOP THE IMPUNITY 16-17 (2013) available at http://

reproductiverights.org/sites/crr.civicactions.net/ﬁles/

documents/ChildMarriage_BrieﬁngPaper_Web.pdf.

ICESCR, supra note 38, art. 12. See also ECSR

Committee, General Comment No. 14: The right to the

highest attainable standard of health (Art. 12), (22

Sess., 2000) in Compilation of General Comments and

General Recommendations Adopted by Human Rights

Treaty Bodies, at 84, para. 30, U.N. Doc. HRI/GEN/1/

Rev.9 (Vol. I) (2008) [hereinafter ESCR Committee,

Gen. Comment No. 14].

ESCR Committee, Gen. Comment No. 14, supra note

75, para. 22.

Id. para. 34.

See, e.g., CEDAW Committee, Concluding Observations:

Ireland, para. 180, U.N. Doc. A/44/38 (1989).

CRC Committee, General Comment No. 15: The right

of the child to the enjoyment of the highest attainable

standard of health (Art. 24), 62

Sess., para. 73, 93,

U.N. Doc. CRC/GC/C/15 (2003).

CEDAW Committee, General Recommendation No. 24:

article 12 of the convention (women and health), (20

Sess., 1999), in Compilation of General Comments and

General Recommendations Adopted by Human Rights

Treaty Bodies, at 364, para. 15(d), U.N. Doc. HRI/

GEN/1/Rev.9 (Vol. II) (2008); CRC Committee, General

Comment No. 4: Adolescent health and development

in the context of the Convention on the Rights of the

Child, (33rd Sess., 2003), in Compilation of General

Comments and General Recommendations Adopted by

Human Rights Treaty Bodies, at 416, para. 20, U.N.

Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008).

CAT Committee, Concluding Observations: Bulgaria,

para. 26, U.N. Doc. CAT/C/BGR/CO/4-5 (2011);

Yemen, para. 31, U.N. Doc CAT/C/YEM/CO/2 (2009);

Madagascar, para. 13, U.N. Doc. CAT/C/MDG/CO/1

(2011); Ethiopia, para. 32, U.N. Doc. CAT/C/ETH/CO/1

(2011); Human Rights Committee, Concluding Observations:

Yemen, para. 10, U.N. Doc. CCPR/C/YEM/CO/5 (2012).

CAT Committee, Concluding Observations: Djibouti, para. 21,

U.N. Doc. CAT/C/DJI/CO/1 (2011); Ethiopia, para. 32, U.N.

Doc. CAT/C/ETH/CO/1 (2011).

CAT Committee, Concluding Observations: Yemen, para. 31,

U.N. Doc. CAT/C/YEM/CO/2 (2009).

Id.

Special Rapporteur on torture and other cruel, inhuman, or

degrading treatment or punishment Manfred Nowak, Rep. of

the Special Rapporteur on torture and other cruel, inhuman

or degrading treatment or punishment: Promotion and

protection of all human rights, civil, political, economic,

social and cultural rights, including the right to development,

para. 46, U.N. Doc. A/HRC/7/3 (2008).

ICCPR, supra note 38, art. 17; Human Rights Committee,

Concluding Observations: Azerbaijan, para. 7, U.N. Doc.

CCPR/C/AZE/CO/3; Uzbekistan, para. 13, U.N. Doc. CCPR/C/

UZB/CO/3 (2010); CRC, supra note 71, art. 16.

Human Rights Committee, General Comment No. 16: The

right to respect of privacy, family, home and correspondence,

and protection of honour and reputation (Art. 17), (32

Sess., 1998), in Compilation of General Comments and

General Recommendations Adopted by Human Rights Treaty

Bodies, at 191, paras. 3-4, U.N. Doc. HRI/GEN/1/Rev. 9

(Vol. I) (2008).

See Human Rights Committee, Concluding Observations:

Yemen, para. 10, U.N. Doc. CCPR/C/YEM/CO/5 (2012);

United Republic of Tanzania, para. 9, U.N. Doc. CCPR/C/

TZA/CO/4 (2009).

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