A transfer petition filed in the Supreme Court demanding uniform marriageable age of 21 years for men and women claims that the disparity in age of marriage has resulted in aggravating the gender inequality that exists within a marital relationship.
The petition has been filed by advocate Ashwini Kumar Upadhyay demanding that his petition on the same question pending with the Delhi high court is transferred to the Supreme Court along with a similar petition filed by one Abdul Mannan, pending with the Rajasthan high court.
Since the issues raised in the two petitions are similar, Upadhyay invoked the power of the Supreme Court under Article 139A which allows cases involving the same or substantially the same questions of law, pending before two or more high courts, to be transferred to the Supreme Court.
The transfer petition said, “While men are permitted to get married at the age of 21, women are married when they are just 18. The distinction is based on patriarchal stereotypes, has no scientific backing, perpetrates de jure and de facto inequality against women, and goes completely against the global trends.”
The petition claimed that 125 countries have uniform minimum age of marriage for boys and girls and by ending the discrimination in age, women will have equal opportunities as men to pursue their education, employment opportunities without being hindered by family compulsion to get married.
Upadhyay argued that women in a married relationship are expected to perform a subordinate role vis-à-vis the husband. “This power imbalance is deeply aggravated by the age differential, because age itself constitutes a hierarchy of power. A younger spouse is therefore expected to respect and be servile to her elder partner, that aggravates the pre-existing gender-based hierarchy in the marital relationship,” his petition stated.
All laws that deal with marriage, whether it be the Hindu Marriage Act, Special Marriage Act, Indian Christian Marriage Act or the Parsi Marriage and Divorce Act, have fixed the marriageable age for men and women as 21 and 18 respectively.
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Upadhyay raised the demand for uniform minimum age of marriage before the Delhi high court in August last year. On August 19, 2019, the Delhi HC issued notice to the Centre for its response. Around the same time, another petition came to be filed before the Rajasthan HC raising the same issue. The Rajasthan HC issued notice to the Centre on Abdul Mannan’s plea on February 5, 2020.
Both petitions have said that the marriageable age discrimination is a violation of fundamental rights of equality (Article 14), protection against discrimination (Article 15), and dignity of life (Article 21) and also India’s commitment under the Convention on Elimination of all forms of Discrimination Against Women (CEDAW).