– The purpose of this paper is not to dwell on the political aspect of this issue but rather pose a few questions which might need to be addressed to make sense of it, for it is far from being black or white

SAFFIYAH EDOO

The Children’s Bill is finally becoming a reality after having passed through the hands of a number of ministers. Being a much-anticipated bill, it is no wonder that it is the subject of intense scrutiny and dissection. While parts of the bill have been welcomed and saluted by stakeholders, others remain a great source of contention. One of the sources of dispute is the status quo regarding article 145 of the Civil code which allows marriage at the age of 16, with parental consent, despite lobbies to remove the article altogether and raise the legal age for marriage to 18. The government finds itself in a delicate posture, for this is not a mere overlook. On one hand, there is the commitment to the different conventions of which Mauritius is a signatory, and on the other, risking an outcry from a large number of Mauritians, a risk more so critical given the upcoming general elections. The purpose of this paper is not to dwell on the political aspect of this issue but rather pose a few questions which might need to be addressed to make sense of it, for it is far from being black or white.
Studies have shown that early marriage is detrimental to children, especially girls. It not only affects their physical wellbeing, by putting them in danger, especially during childbirth and its aftermath, but also their mental health, their economic opportunities, and changes their lives, generally for worse. Which is why lobbies have strongly demanded legislation against child marriage and child domestic partnership. There cannot be an extrapolation however on the reasons for child marriage in Mauritius, based on what happens elsewhere. We do not live in a country where girls are peddled to old men to relieve their families through marriage or to become child making machines as some would pretend. Nor do we live in a country where the norm is to marry girls once they have reached puberty.

Maturity

More than 60 years ago, it was socially acceptable for girls to be married off in their early teenage years. Similar to the inability to extrapolate reasons for child marriage from other countries, marrying off a teen today because this was the norm then is not justifiable. Should a poll be carried out today, it would be revealing to know the number of people who would be readily agreeable to marrying their kids at 16 or under, without any form of social pressure. As a parent of a teen and a pre-teen, and as per impressions gleaned from people within a close circle of people, including those of the generation when marriage was common under the age of 16, there is a consensus that marriage at the age of 16 or below is not something that can be remotely considered in this day and age. Today the girl’s purpose is no longer limited to being groomed to take on the responsibilities of managing a house, husband and raising kids. Today, the girl is seen as an individual who has the potential to claim similar if not equal aspiration to her male counterpart. Secondly, mothers who have grown up in a culture of being subservient to men because they had no choice, do not want their daughters to suffer similar fates. Hence their encouragement and blessings to their daughters to be able to stand on their own feet before getting married.
Despite the above, though, the fact remains that marriage remains legal within religious belief, irrespective of the age stated by the law of the land. This is an argument that is often used by those who have recourse to underage marriage. However, the question needs to be asked: are girls, or boys for that matter, who are being married off in their mid-teens, doing so for the right reasons? Have they attained a maturity to handle the institution of marriage? Have they been deemed able to take on all the financial, emotional, mentally related responsibilities which come with marriage? Or are they being forced into marriages to right a socially unacceptable wrong or as a means to handle a situation that has gone out of hand? While some will put forward what is religiously acceptable to justify unreasonable acts, others need to try to explain the discrepancy that any change in law might represent: how can the age for sexual consent remain at 16 and that for marriage be pushed to 18? Also, how can a law be passed, which might be in contradiction with the freedom of conscience which is guaranteed by the Constitution?


The underage marriage issue is not one with a clear-cut solution that comes from one place only. In fact, this issue must be addressed by a collaborative effort coming from different groups. In the first place, parental responsibility is primordial. It is the duty of parents to raise children in such a way that the latter are led to take decisions that will benefit them. Should children deviate from the reasonable path, it is up to parents to do their utmost to bring the child to reason, no matter what age the child is. Parents should be able to step up and challenge their children when confronted with the threat of wanting to get married during adolescence. Secondly, since underage marriage can only be done religiously, there should be the willingness among all places of worship to adopt one common practice when it comes to underage marriage. The head of the place of worship should be mandated to not only carry out due diligence regarding the reason of this marriage, as is the practice in some places of worship, but also have at least multiple interactive sessions with the parties involved instead of just performing the ceremony. These sessions should cover the religious rights and responsibilities of EACH spouse, explain the seriousness of the commitment that they are going to undertake and most important of all, make sure that the marriage is not taking place under coercion.

“Induction to Marriage”

Thirdly and more importantly, the government should include a legal framework for underage marriage, since it does not seem so far to be amenable to raising the age of marriage to 18. Having parental consent is not good enough to allow marriage at 16. Should the government keep this posture, it is imperative that it includes additional conditions. It should set up an “Induction to Marriage” sessions over the course of 12 weeks, led jointly by the department of family welfare of the ministry, representatives of religious bodies and NGOs. These sessions must ascertain that the marriage is not being undertaken under duress, that the parties are taught their rights, children’s rights, economic rights, responsibilities towards their spouses and children, how to identify abusive relationships and authorities to whom they can turn to should things go sour. The government should also introduce a condition whereby it becomes obligatory on the religious leader to be in possession of a certificate of this session sanctioned by the relevant Ministry to accept to conduct this marriage ceremony. Should a religious leader be found to have performed a ceremony without this certificate, he shall be liable to prosecution.
Is religiously or secularly legal necessarily reasonable? Using religion to justify an action does not make it more acceptable, neither does it make any situation devoid of any further complications down the line. Using the law to curb freedom of conscience impedes on the right of the individual. It is therefore up to each and every individual to question their conscience when in the presence of a case of underage marriage. The couple, the parents, religious authorities and the government are all parties to this commitment, and it is up to each and every one mentioned above to take responsibility of their part in this lifelong commitment. And having a proper legal framework to support all of this can only be to the advantage of the kids who think that they are of marriageable age.