Bangladesh: Don't Lower Marriage Age

The Bangladeshi government should set 18 as the minimum age for marriage to comply with international prohibitions against child marriage, Human Rights Watch said. Recent media reports indicate the prime minister's cabinet is considering a revision to the law to make 16 the minimum age of marriage for girls. The minimum age for men would be 18.

The proposed revisions would reverse stated government aims to reduce child marriage among girls, Human Rights Watch said. At the July 2014 Girl Summit in London, Bangladeshi Prime Minister Sheikh Hasina pledged to take steps to reduce, and ultimately end, child marriage in Bangladesh. She committed, by 2021, to end marriage for girls under age 15 and reduce by more than one-third the number of girls between ages 15 and 18 who marry. Bangladesh pledged to end all child marriage by 2041. The government also committed to develop a national plan of action on child marriage before 2015, and take other steps to change social norms and engage civil society in the fight against child marriage.

"Setting the age of marriage for girls in Bangladesh at 16 would be a terrible step in the wrong direction," said Liesl Gerntholtz, women's rights director at Human Rights Watch. "The rate of child marriage in Bangladesh is already off the charts. The new law should set the minimum age of marriage at 18 for both women and men and put the best interests of children at the center of all of its provisions."

Bangladesh has the second-highest rate of child marriage in the world, second only to Niger, according to the United Nations children's agency, UNICEF. About 74 percent of Bangladeshi women currently aged 20 to 49 were married or in a union before age 18, despite a minimum legal marriage age for women of 18. International law prohibiting gender discrimination requires that the age of marriage be the same for both women and men, and evolving international standards set 18 as the minimum age.

The Convention on the Rights of the Child, which Bangladesh ratified in 1990, defines a child as anyone under age 18. In 2009 the UN Committee on the Rights of the Child strongly recommended that Bangladesh, "Take necessary measures to define the child as any person below 18 years old" in accordance with the Convention on the Rights of the Child. A new Children's Act passed in Bangladesh in 2013 that dealt with the rights of children who are crime victims or are in conflict with the law, set the age of adulthood at 18 for both girls and boys for the purpose of that act.

The 1929 Child Marriage Restraint Act (CMRA) made it a criminal offense to marry, or facilitate the marriage of, a girl under 18 or a man or boy under 21, but the law has rarely been enforced, Human Rights Watch said. Many of its provisions are now outdated - including the 1,000 Taka (about US$13) fine imposed as punishment for marrying or facilitating the marriage of a child - despite a 1984 revision of the law.

The government showed an earlier draft of the proposed CMRA to civil society organizations in Bangladesh last spring, but subsequent drafts have not been publicly shared. A number of activists have spoken out in opposition to the government proposal to lower the age of marriage.

The government, working with UNICEF, has taken steps to begin the development of a national plan of action on child marriage. The plan of action on child marriage is intended to inform the government's next five-year plan, which will be formulated next year.

"The Bangladeshi government's promised efforts to end child marriage are encouraging, but these steps need the participation of affected women and activist groups," Gerntholtz said. "The government should consult closely at every stage with the groups, who have a wealth of knowledge about protecting women and girls, to develop a new law and a national plan of action."

The CMRA, as amended in 1984, places the burden on the courts to prevent and punish child marriage through injunctions and criminal sanctions. Bangladesh has taken other important initiatives to prevent child marriage, such as expanding birth registration, the use of national identification cards, and girls' access to education through a stipend program. Significant gaps remain, however, in terms of both civil and criminal law measures to prevent and punish child marriage, and to more effectively enforce existing laws than in the past.

The CMRA also does not provide for social support to prevent child marriage and assist women and girls (and men and boys) who have been the victims of child marriage. The revised CMRA should include measures to increase prevention efforts, including public awareness programming, enforcing universal mandatory birth registration, establishing and enforcing universal marriage registration, and further strengthening access to education and education retention programs for girls. It should also provide both social and legal assistance to child and adult victims of child marriage. Criminal justice and local government officials should receive training on child marriage and their roles in preventing it and responding to violations of the law.

"Bangladesh should take the opportunity to learn from countries around the world that have successfully tackled child marriage," Gerntholtz said. "The Bangladeshi government should pass a new Child Marriage Restraint Act that empowers girls to delay marriage, resist unwanted marriage, and be recognized in society for their value as individuals, not just as brides."

Reforming Bangladesh's Child Marriage Restraint Act

In addition to changing the minimum age of marriage to 18 for both women and men, there are a number of other aspects of the Child Marriage Restraint Act (CMRA) that should be remedied through the revision process. The new CMRA should ensure that the best interests of children are the primary consideration of the law, and that the law will cause no harm to children, or to adults who were married as children.

Specific issues the law reform process should address include:

Expanding prevention and assistance to victims: The CMRA's present focus is solely on actions courts may take to prevent and punish child marriage. While these are important measures, and should be clarified and maintained, there is also a great need for expanded social support to prevent child marriage and assist women and girls (and men and boys) who have been the victims of child marriage. The revised CMRA should include measures to increase prevention efforts, including public awareness programming about the harms of child marriage, enforcing universal mandatory birth registration, establishing and enforcing universal marriage registration, and further strengthening access to education and education retention programs for girls. It should also provide both social and legal assistance to child and adult victims of child marriage. Criminal justice and local government officials should receive training on child marriage and their roles in preventing it and responding to violations of the law;

Making full consent a cornerstone of marriage: The CMRA, in addition to ensuring that both parties to all marriages are adults, should contain provisions that establish the principle of full and free consent of both parties to the marriage. Revision of the CMRA should also be accompanied by reform of personal status laws that discriminate against women and undermine full and free consent. The CMRA should explicitly prohibit the substitution of parental consent for that of the parties to the marriage;

Taking marital rape seriously: Marital rape is not treated as a crime in the same manner as other forms of rape under Bangladeshi law. Any revision of the CMRA should be accompanied by new legal provisions that clearly state that forced sex in the context of marriage amounts to rape and incurs punishments as severe as those for other forms of rape;

Providing legal options for victims: Bangladesh's personal status laws governing marriage, separation, and divorce overtly discriminate against women. A comprehensive review of all discriminatory personal status laws is required to ensure women and girls' equality and protect them from abusive husbands. Girls and women who were married as girls, who are seeking to leave their marital homes, require a full range of options for how the legal status of their marriage will be resolved, including access to legal separation, annulment, and divorce, all with appropriate options for child custody, maintenance, division of marital property and child support where appropriate. They also need access to specialized social assistance, in the form of both financial support and services, which should be provided for under a revised CMRA;

Simplifying bringing a complaint: The CMRA provides that a person bringing a complaint about a child marriage may be obliged to pay a bond. The revised law should make it possible for any concerned person to bring a complaint regarding a child marriage and should remove the payment of any fees and any other obstacle that may deter bringing such a complaint. The law should be revised to require that any complaint brought to the police or a criminal court official triggers an investigation and, if appropriate, legal action. The law should establish a transparent system of tracking complaints, monitoring the disposition of complaints, and reporting publicly on the handling of complaints in each local jurisdiction, to ensure that police and courts are fully responsive;

Extending the time period within which a child marriage can be challenged: The CMRA currently limits the time period during which a child marriage can be challenged to one year after the marriage has taken place. This is an arbitrary period and poses a major obstacle to justice for girls who have little ability to access the court system and should have access to help whenever they are ready and are able to seek assistance from the government or the courts. The new law should provide a longer time period accompanied by a provision specifying that only a spouse who was a child at the time that the marriage was contracted has the right to seek to void it on the grounds that it was a child marriage;

Targeting penalties primarily toward officials who are breaking the law: The CMRA provides for the same criminal punishment to be applied against anyone involved in a child marriage - including the spouse, the parents, and any official conducting the ceremony. In revising the CMRA, the government should give careful consideration to how the law can hold accountable those best able to systematically prevent child marriage, including officials who conduct or register marriages. The new law should put in place strict measures to monitor those actors and punish them when they deliberately, negligently, or through corruption, do not act to prevent child marriages. The authorities should give careful consideration to potentially harmful consequences to girls of bringing criminal prosecutions against parents and spouses; and

Building effective enforcement into the law and the plan for its implementation: The failure of the CMRA to end child marriage in Bangladesh after its prohibition in 1929 is not primarily a problem of an outdated law, but rather a problem of enforcement. For a new CMRA to adequately support the government's goal of ending child marriage completely by 2041, the law will need to be fully and vigorously enforced. In drafting the new law, the government should carefully examine what obstacles have led to poor enforcement of the existing law. Such obstacles likely include: failure by law enforcement officials to take the law seriously and pursue cases; lack of access to legal assistance for victims of child marriage; gaps in birth and marriage registration systems; lack of consequences for public officials who fail to use birth and marriage registration systems to prevent child marriage; complicity of local officials in child marriages; corruption; gaps in public awareness; and gaps in programs designed to retain girls in education. As part of the process of revising the CMRA, the government should make a plan for addressing each obstacle through provisions in the new law and through a detailed plan to implement the law.