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Why common law against child marriage must come above religious laws

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BY Ruwan Laknath Jayakody Even though cultural and religious diversity should be valued, the common law protecting child rights must be respected above all in a context where child marriage compromises the child’s rights while creating psycho-social issues and discrepancies in the law. These observations were made in a story based on case reports on “Conflicts in marriage laws in children: Medico-legal and social implications” which was authored by M.M.A.C. Gunathilaka and W.N.S. Perera (both attached to the Kelaniya University’s Medical Faculty’s Forensic Medicine Department) and published in Medico-Legal Journal of Sri Lanka 7(2) in December 2019. In Sri Lanka, according to the “Demographic and Health Survey 2006-2007” of 2009 by the Census and Statistics Department and the Health Ministry, 12% of girls are married before the age of 18 years while 2% are married before their 15th birthday. Sri Lanka has committed to eliminating child, early, and forced marriages by 2030 in line with Target 5.3 of the Sustainable Development Goals (SDGs). The Marriage Registration (Amendment) Act, No. 12 of 1997 sets the minimum age of marriage at 18 years even though there is a conflict between Section 23 of the Muslim Marriage and Divorce Act, No. 13 of 1951 (MMDA) which has no minimum legal age of marriage and allows children under the age of 12 years to be married with approval by a Quazi Court. In certain other situations, the law of the State and the rights of childhood conflict with societal expectations when the child is not legally permitted to marry following a consensual sexual relationship.  Case report one  A 16-year-old Muslim girl was missing from her home for about one month when she was found by the Police while she was living with her boyfriend. She had maintained a consensual sexual relationship with her boyfriend throughout this period. The history revealed that she was not aware of the age of marriage. Case report two  A 15-year-old Muslim girl went missing and her mother lodged a complaint to the Police. The history revealed that she had eloped with her sister’s husband, who had two children, with the man’s promise that he would marry her. When they returned home, her mother was in a dilemma regarding the complaint she had made to the Police. She approved the marriage of her daughter considering the consequences on her elder daughter’s family. Child marriage, according to the United Nations (UN) Children’s Fund’s “Child marriage in the Middle East and North Africa” includes any legal or customary union involving a boy or a girl below the age of 18 years. This definition is based on Article 1 of the Convention on the Rights of the Child (CRC) of 1989, which defines a child as any human being below the age of 18 years. The Universal Declaration of Human Rights provides that men and women of “full age“ have the right to marry (Article 16.1) and that marriage shall be entered into only with the “free and full consent of the intending spouses”. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979 further provides that the marriage of a child will have no legal effect. Sri Lanka has, per the World Health Organisation’s (WHO) “Child, early, and forced marriage legislation in 37 Asia-Pacific countries” ratified in this regard the CRC in 1991, the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography of 2000 in 2006; the CEDAW in 1981; the International Covenant on Economic, Social, and Cultural Rights of 1966 in 1980; and the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages of 1962 in 1962. Fundamental rights are covered under Chapter III of the Constitution. Article 12 enshrines the right to equality, providing that all persons are equal before the law and are entitled to the equal protection of the law (Article 12[1])and that no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth, or any such grounds (Article 12[2]). Article 12(4) further states that “nothing in this Article shall prevent special provisions being made, by law, subordinate legislation, or Executive action for the advancement of women, children, or disabled persons”.  Sri Lanka has a mixed legal system influenced by Roman-Dutch civil law, English common law and Jaffna Tamil customary law termed Thesawalami, the Muslim law, and even customary laws which apply occasionally. The body of law relating to marriage consists of the general law, customary law, and personal laws. Tamils are governed by the general law in most marriage-related matters. Kandyan Sinhalese can choose to be governed by the general law or their customary law (the Kandyan Law). Muslims are governed by the Muslim personal law (MMDA). According to Section 15 of the Marriage Registration Ordinance as amended, “no marriage shall be valid unless both parties to the marriage have completed 18 years of age”. However, Section 22 of the same authorises parents or the guardian in the absence of the parents, to consent to a marriage involving a minor. One of the most contested issues in the debate around the reform of the MMDA has been with regard to increasing the minimum age of marriage for Muslims. While legal reforms in 1997 increased the minimum age of marriage to 18 years for all citizens except Muslims, the MMDA does not stipulate an age of marriage. The minimum age at which a Muslim girl or boy can get married under the MMDA is not 12 years. As per Section 23 of the MMDA, a girl below 12 years can be given in marriage with the authorisation of a Quazi Judge. Hence, the minimum age of marriage for Sri Lankan Muslims is technically zero. Although the MMDA emphasises the importance of registering marriages, it also says that the validity or invalidity of a marriage does not depend on registration. This means that even unregistered customary marriages can also be considered valid under the law of Sri Lanka. The offence of rape is included under Section 363 of the Penal Code, including specific reference to the case of a married woman over 12 years, per the Penal Code (Amendment) Act, No. 22 of 1995. According to the Penal Code, a man is said to commit rape when he has sexual intercourse with a woman, with or without consent, when she is under 16 years of age unless the woman is his wife who is over 12 years of age and is not judicially separated from the man. Under the common law of Sri Lanka, the consent of a child under the age of 16 years for a sexual act is invalid and the perpetrator will be charged under the law of rape. Further, the State has signed the CRC and the CEDAW and is, therefore, bound to protect child rights. The discrepancy in the common law and the MMDA according to ethnicity has created confusion, thus allowing the charge of rape in one ethnic group and not in another. The offence of incest is included under Section 364A of the above Penal Code (Amendment) Act and under Muslim law too, incest is an offence. Per the WHO’s “Guidelines on preventing early pregnancy and poor reproductive outcomes among adolescents in developing countries”, complications in pregnancy and childbirth are the main causes of death among adolescent girls aged 15-19 years in developing countries.  As observed in A. Nove. Z. Matthews, S. Neal, and A.V. Camacho’s “Maternal mortality in adolescents compared with women of other ages: Evidence from 144 countries”, maternal morbidity and maternal death are more likely for 15 to 19-year-olds than for 20 to 24-year-olds, and even more likely for those who become pregnant or give birth before the age of 15 years. It was found in S. Das Gupta, S. Mukherjee, S. Singh, R. Pande, and S. Basu’s “Lessons from India on delaying marriage for girls” that adolescents aged 15-19 years are twice as likely to die during pregnancy or childbirth as women aged 20 years and over, while adolescents under 15 years have five times more risk. Negative health consequences for a mother also negatively affect the health and survival of her newborn children. Early marriage very often precludes continuing education, just as additional years of education are associated with a later age at marriage. The Royal Tropical Institute’s “Building skills for life for adolescent girls programme: Global baseline report” mentioned that child marriage and early pregnancy were cited as common reasons for girls not being able to continue in secondary school. Girls who married too early are also more likely to experience domestic violence, abuse, and forced sexual relations. Consequently, they are more vulnerable to sexually transmitted infections, including human immunodeficiency virus (HIV). In the long run, they also deprive girls in their adult lives of having more significant leverage within the family and community and the power to take decisions about their work, health, and wellbeing and that of their children.  The law of the State has the right to protect all citizens equally and equitably, especially the rights of the children. The content in the MMDA does not reflect or take into account the socio-cultural and legal changes which have taken place during the last 60 years.  

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