By Mass L. Usuf –
Child marriage is defined as a formal marriage or informal union before age 18. The following statistics from the World Health Organization indicates that this is a global problem, “about 16 million girls between the ages of 15 to 19 and, two million girls under the age of 15 give birth every year”.
In Sri Lanka, the incidence of child marriage is lesser in the city/urban environment and more conspicuous in the rural areas. FOKUS WOMEN observes that, “under age marriage of girls is reported to have increased in Sri Lanka particularly in the North, East and among the rural communities” (April 2016).
Two exceptional events may have contributed to the increase in child marriages. Firstly, the LTTE exempting those who were married from being enlisted. Secondly, marriages between the IDP/refugees mainly among Muslims/Tamils. These marriages were obviously for security reasons. This data should not be generalised.
Another interesting finding is regarding, “Girls below eighteen entering into de facto marriages in the rural communities for several reasons”. One of which is “romantic relationships resulting in elopement”. (FOKUS WOMEN.)
The foregoing clearly substantiates that the Age of Marriage, which is eighteen, as laid down in the General Marriage Registration Ordinance (GMRO) is not being followed strictly.
See the beauty of our Sinhala culture. With the onset of menarche (signifying Puberty) the traditional ‘Kotahalu Magul’ takes place. “She is kept indoors and isolated from outsiders and even the males of her own family” writes Dr. Y.D. Jayatilleke, Sociology and Anthropology Department, University of Jayawardenapura. “This custom is followed to make the physically matured girl to become mentally matured”. The main objective is to instil discipline and restraint. The girl goes through various exercises preparing her “to play her future role as a woman, wife and mother”. Even though she may be under 18 years of age.
With modernity and advancement, the cultural value of discipline and restraint has been transformed. Teenage innocence is waning The drift towards increased teenage sexuality arising from the free intermingling of sexes is a factor for this change.
A UNICEF study (2013), reveals that child marriages were most often a product of teenage sexuality, and do not appear to be linked to customary or forced marriages etc. (See : Emerging concerns and case studies on child marriage in Sri Lanka).
The case of Marmba Liyanage Rohana alias Loku (S.C. Appeal No. 89 A /2009) provides a good illustration.
The accused was indicted for committing rape on fifteen year old Anusha Priyadarshani, a Grade 11 student. Anusha had a love affair with the accused. Her mother became hostile. Life at home became intolerable. One day she met her boyfriend and asked him to take her away from home or she will commit suicide. He took her to his uncle’s house. During that period they had sexual intimacy as willing partners. Anusha said to Judicial Medical Officer, “I went with him on my own free will and lived together with him.”
School of Legal Realism
The accused (boyfriend) was sentenced to ten years imprisonment. The sentence was appealed and a suspended sentence given. The Supreme Court observed: “There is no doubt whatsoever that the accused is technically guilty of the offence…… However, after considering the facts of the case and the submissions of the counsel, I hold that this is not a case where the accused has to suffer a custodial sentence.”
Hypothetically, say, Kumari a girl below 16 had been impregnated by her boyfriend. The law will indict him for statutory rape. Why? Because the laws says that a girl below 16 cannot consent. This is unreal, arbitrary and contrary to medical opinion. Underestimating the capacity of a 16-year-old girl is gender discrimination.
He will be sentenced to jail. Their child will grow up seeing the father behind bars. The child deprived of the warmth, love and affection of the father (minimum sentence, ten years). Very depressingly, even the two innocent lovers cannot marry until the jail term is completed. Kumari who is 16 will have to wait till she is 26 to marry (and the father can have his ten year old as his best man!). Practically, does this make sense?
From this emerges other conflicts of interest. Child marriage; Deprivation of the fundamental right to marry; Gender discrimination and the welfare of the new born child. The unrealistic law which prohibits marriage because she is below 18, has created problems further burdening society.
If the parents disown Kumari who will care for the new born and this unmarried teenage girl? Living with no security and protection exposes women to predators like child traffickers, pimps, drug pushers and other criminals. Will not she be vulnerable for sexual abuse by our holier-than-thou social structure? Remember the repeated rape of a 12 year old child by several men. Seeking refuge, she had then gone to a temple which her mother visits regularly. In the very place of supposed refuge she was raped by the monk in the temple. (Colombo Telegraph. July 30, 2016).
In the year 2016, 347 children had been raped, 713 had been sexual harassed and 196 children have been subjected to grave sexual abuse as per the National Child Protection Authority.
Absorbing certain realities devoid of emotional or other prejudices is fundamental to understanding teenage sexuality. This issue has to be looked into objectively, holistically and independently.
No parent, as a rule, would give the daughter in marriage when she is not fully ready. To dramatize by questioning (as often heard), “would you give your young daughter in marriage”, in my view is egotistic, argumentative and borders on stupidity. Instead, ask the question, “Would you allow your teenager to indulge in adventurous sex?” In Sri Lanka, the parents know when to find a suitable partner. See the advertisements in the Dailies reading: “Govigama Parents seeking…..”, “Muslim Parents….” and so on.
To ride the wave of servile complaisance and be blinded by impermanent man made principles is not wise. We must adapt to social reality and seriously address this as a National issue impacting on the behaviour of our youth – Sinhala, Tamil, Muslim etc. The situation today is that, “Adolescent sexuality and teenage pregnancy is a reality in Sri Lanka…..” (Savithri Goonasekera). Further, in the UNICEF study above, it is noted that of the 71 girls interviewed, 21 girls (30%) were pregnant before they turned 18.
‘18’, Is Not A Solution
The huge brouhaha over child marriage as if some alien from another planet has invaded the earth is hyperactivity. Child marriages have been there for centuries. Not all child marriages have necessarily resulted in the evils vociferously being marketed. Thousands have lived honourably and these great ancestors of ours have blessed this country with invaluable progeny. The respected Professor Savithri Goonesekera herself admits that her paternal grandmother was married at 13 years (UNICEF, 2013). This is the truth whether it is a Sinhalese, Tamil or Muslim family.
The emerging trend must be reviewed without upsetting the established equilibria of the different socio-economic and religio-cultural circumstances. Evolution challenges us to adapt to changing conditions. Embracing pragmatism in place of dogmatism should be preferred. Measures may be taken to regulate this phenomenon with wisdom, positivity and in the greater National interest.
Law for the sake of law is self-defeating. In India, despite the Child Marriage Restraint Act, 1929, child marriages continued unabated. The government then passed The Prohibition of Child Marriage Act, 2006 replacing the earlier legislation. In spite of stricter laws in India, 15% of those below 15 years of age get married and 47% of those under 18 are married according to UNICEF records.
It is also misleading to cite intergenerational poverty, violence and abandonment as unique to child marriages. These occur in marriages between older adults too and the number of incidents may be much greater.
Lower The Age Of Marriage
I am not advocating child marriage. However, to continue having the age of marriage as 18 has neither been beneficial to society nor a solution to teenage sexuality. We must find a solution to monitor and regulate. For example, attempts to reduce the incidence of sexual violence and underage sex in Sri Lanka by increasing the age for consensual sex to 16, has been a failure as per research.
Sociologically, adolescence is the period of transition between the dependency of childhood and the autonomy of adulthood. This means that there is no universally agreed upon definition for the ages at which adolescence begins and ends. For example, in the Mayan community in Guatemala, adolescence begins at age 10.
The Quran does not specify an age but refers to (1) puberty and (2) judicious maturity as eligibilities to marry. Contextually, there is no need to keep changing the age, as these two requirements provide an effective benchmark to assess eligibility. After all, maturity is subjective. Thus, a person past 18 years may not be able to marry if he/she is an idiot, legally. On the contrary, a girl who has attained puberty and is sixteen cannot marry if she does not possess judicious maturity. It will be incorrect to assume that all who are 18 are matured.
There was some discussion on lowering of the age of consensual sex below 16. Even so, willing partners cannot marry until they are 18 (vide. Section 15 of GMRO and Gunaratnam v. Registrar-General (2002) 2 SLR). The society is paving the way for the woman to be exploited and dumped any time. The women have to protected.
“Premarital sex with teenage girls resulting in teenage pregnancy has also resulted in some women’s groups advocating for lowering the age of marriage.” (Goonesekere, 2004 ii).
The review of age of marriage as a public policy demands a proper understanding of teenage sexual behaviour. Amendment to the GMRO is a crying need of our times. The society has a duty to save our teenagers from unlawful sex and, save the new-born from being stigmatised as an illegitimate child.