Child Marriage in South

Abstract

This briefing paper demonstrates why governments must be held accountable for addressing child marriage in the region and discusses child marriage as a form of early and forced marriage. Child marriage is considered forced marriage under international law, because children—defined as boys and girls under 18 years of age9—do not have the legal capacity to provide informed consent to marriage. The phrase “child marriage” is used in this briefing paper rather than “early and forced marriage” because it captures both the elements of age and lack of consent, and because “child” is a more precise term that can be clearly defined and protected in law. Further, childhood represents the vulnerable starting point for the continuum of reproductive and sexual rights violations discussed in this briefing paper. The briefing paper primarily focuses on violations of women’s and girls’ reproductive rights and right to be free from sexual violence arising from child marriage in six South Asian countries—Afghanistan, Bangladesh, India, Nepal, Pakistan, and Sri Lanka. These countries were selected largely due to the widely documented scope of the problem in each nation and the urgent need for accountability. The briefing paper includes Sri Lanka despite the fact that the country has been recognized as a model in South Asia for elimination of child marriage; reports have been emerging concerning high rates of child marriage in conflict-affected areas and where customary laws apply.10 The term “South Asia” does not have a uniform definition, which means that studies and reports presenting statistics or information on South Asia may include more or fewer countries than are within the scope of this report. However, where legal trends are analyzed or discussed pertaining to South Asia in this briefing paper, the term is intended to refer to the six countries noted above. While child marriage affects both boys and girls, this briefing paper focuses on the impact on girls and women because of the significantly higher incidence of child marriage among girls and the particular risks of reproductive rights violations11 and sexual violence,12 experienced by girls and women who were married as children. This briefing paper discusses violations of both women and girls’ rights that stem from child marriage, because this continuum of violations results in harm to girls even after they have become women. The harm associated with child marriage, including the barriers to realization of girls’ full potential as well as the great risks of sexual violence and reproductive rights violations, are well-established. This briefing paper focuses on the obligation of governments to prevent and address these harms, but does not specifically analyze trends being reported in the region concerning children who enter self-initiated marriages. Child marriage in the region has many dimensions and nuances; future factsheets and materials will continue to be added to this briefing paper to delve deeper into distinct aspects of the issue. This briefing paper is intended to serve as a resource for those interested in using international and constitutional legal norms to establish government accountability for child marriage through human rights advocacy and litigation. It also is meant to serve as a critical resource for government officials, who act as gatekeepers of the law, to enable them to strengthen their role in enforcing existing laws and policies and bringing about necessary legal reform. Section I contains an overview of child marriage in South Asia, including an analysis of legal trends concerning child marriage in the region. This section discusses both national laws that are applicable to the population as a whole, referred to as “general laws,” as well as personal laws that are intended to reflect specific religious ideology and apply only to members of a particular religious group. While some general laws may reflect a particular religious ideology, such as general laws rooted in Hinduism in Nepal and in Islam in Afghanistan, Bangladesh, and Pakistan, they are distinguished from personal laws because they apply to all individuals, regardless of religious affiliation. Section II presents the international legal standards that recognize child marriage and the continuum of harms experienced by women and girls married as children as violations of human rights. Section III discusses South Asian constitutional principles and jurisprudence that are violated by the failure of governments to address child marriage, and highlights the role of courts and national human rights institutions in ensuring accountability for these fundamental rights violations. The final section contains recommendations for governments.