Child marriage- in context of accepted practice, means an union in which at least one of the partners is under 18 years of age. It has been a pervasive global issue in known human history. Since the creation of UN, it has taken strict preventive measures against child marriage through an international legal framework. Despite that, it is one of the major human rights violations that occur in Bangladesh on a daily basis.
In 1989, the UNGA adopted the Convention of Rights of the Child (UNCRC). It is a legally-binding international instrument- which sets out the civil, political, economic, social and cultural rights of every child, regardless of their race, religion or abilities. Although nothing is expressly mentioned in the convention, the UNCRC protects children from dangers of early marriage by ensuring “Right to express views” on art.14 and “Right to health and protection” through art.24. Alongwith UNCRC, The International Covenant on Civil and Political Rights(ICCPR) also ensures rights of the children and their protection from early marriage. Art.23(3) of the ICCPR says “no marriage shall be entered into without full and free consent of the intending spouses.” Art.10(1) of International Covenant of Social, Economic and Cultural Rights (ICESCR) states the affirmative by putting the responsibility of education of a child on the family and ensuring full free consent of spouses to a marriage. The explicit restriction, has been provided by Convention on the Elimination of All Forms of Discrimination (CEDAW) in art.16(2), enshrining the protection of women by withdrawing all legal effect from child marriage. The international framework is strict against child marriage and Bangladesh has ratified all these conventions.
Within Bangladesh’s domestic system, “Child Marriage Restraint Act”(CRMA) 1929 was the first legislation that restrained child marriage. Despite these existing laws, the implementation had been widely ignored due to the failure of ensuring enforcement. In 2015, the previous government proposed lowering the marriage age for girls from 18 to 16. The move was strongly opposed by the civil societies, which led to the abandonment of such a proposal.
Later, The amendment of “Child Marriage restrain Act” 2017 brought some changes which are comparatively more applicable to present Bangladeshi societies rather than of that made in 1929. The s.2 of CRMA specifically defines what child marriage is by stating that a girl must attain the age of 18 and a boy must attain the age of 21 to be eligible to get married. S.4 of this act enables a government official to prevent a child marriage upon receiving the information. S.5 provides that a court can issue an injunction to prevent the parties from committing such an act in future. S.11 provides punishment for the register upon approving a child marriage.
Despite its encouraging initiatives, the act carries some problematic provisions. It legitimizes child marriage under “special circumstance” through s.19. The term is extremely vague and undefined. One of a few reasons behind creating such provision is to “protect the dignity” of a girl child in case she is raped and gets pregnant. Similarly, it approves a child marriage while a girl child is a victim of sexual assault or stalking, to “protect” the child from the perpetrator, presumably by marrying her off to that perpetrator himself. This special power not only implicitly makes these children vulnerable to rapists and sexual assaulters, but also demolishes the idea behind which such an act was initially enacted. The “Nari o Shishu Nirjatan Ain 2000” is specifically created to protect the women and children in Bangladesh. However, S.10 of the said act provides a definition for sexual harassment but the definition is so vague that it is not enough to protect women and children from sexual harassment in various ways. In the case of BNWLA vs Government of Bangladesh (2011) BLD (HCD) 31, the Supreme Court of Bangladesh ordered this section to be amended with including full definition of sexual harassment.
The amount of problematic provisions that exist within our domestic legal framework serves as one of the biggest contributors behind the failure to prevent child marriage. The provisions are also a complete violation of its international obligations. To rectify such an issue, the term “special circumstances” must be omitted so that there is no scope for exploitation for the guilty party. Similarly, the definition of sexual harassment must be clearly defined in the legislation. The court order of BNWLA vs Bangladesh has not yet been carried out in Bangladesh legislation even after 15 years. Such inertia must be overcome, and lawmakers must become more proactive for such amendments. Additional rules and procedures must be enacted in order to ensure the implementation of the laws within the root level of the country. Bangladesh must start with addressing the issues within its domestic legal system- not only to comply with its international obligations, but also to ensure that no child in the country is deprived of their rights on a practical basis.
About author:
Nafis Chowdhury is a professional student at the Bangladesh University of Professionals(BUP). He is currently working as an Apprentice Lawyer at District and Sessions Judge Court, Dhaka. Attaining an LL.B degree from BRAC University, he has participated in multiple Moot Court Competitions and legal research conferences. His areas of interest are Constitutional Law, Anti-Corruption Law and Human Rights.