Child marriage is a global concern that is neither a new phenomenon nor a sporadic event. Notwithstanding their recognition by the International Community as a human rights violation, the large scale at which such practices are happening all over the world is more than merely disturbing. The issue is further complicated by the fact that child marriage is often justified by communities’ customs or religion. Thus, the cultural sensitiveness that is required when implementing human rights standards could be and has often been employed by states to circumvent their legal obligations related to eradication of the practice by interpreting and applying the laws in a manner which although being in synchrony with one’s traditions or religious peculiarities is contrary to such fundamental principles as is the one of the best interest of the child.
This thesis analyses India’s compliance with international human rights standards on child marriage found in UN instruments and recommendations. It endeavours to evaluate how far the state has come in adopting relevant policies and legislation, are they efficient and to what degree are they being actually implemented. It further identifies relevant social patterns that may affect the efforts towards child marriage eradication and suggests possible paths for changing the status quo.
The rationale behind selecting India as a focal point of the research was the contradictory reality of child marriage prevalence despite the evidence of a governmental commitment to its eradication made at a global, regional, and national level.
The thesis concludes that although India has made a great progress in terms of adoption of legislative and other measures, due to the ineffectiveness and week enforcement of the latter, the State fails to comply fully with its commitments under the respective international human rights treaties it is a party to.
Table of Contents
INTRODUCTION
Chapter I Framing the issue of child marriage
1. What constitutes the practice?
2. Why should we worry about child marriage?
2.1. The magnitude of the problem
2.2. Causes
2.3. Consequences
3. The theoretical challenge: Cultural relativism vs Universalism
4. Concluding remarks
Chapter II International legal framework on child marriage
1. Preliminary remarks
2. Consent to and minimum age for marriage
3. Child marriage within the concept of harmful traditional practices
4. Child marriage as a violation of human rights
4.1. The Best Interests of the Child Principle
4.2. Equality and non-discrimination
4.3. Right to life and to maximum survival and development
4.4. Right to health
4.5. Right to protection from violence and freedom from torture and other cruel, inhuman or degrading treatment or punishment
5. Concluding remarks
Chapter III Addressing child marriage at a sub-regional level: South Asia
1. Preliminary remarks
2. Human rights protection in South Asia
3. South Asian Association for Regional Cooperation [SAARC]
4. Review of legal and regulatory frameworks on child marriage in South Asia
4.1. Convention on Preventing and Combating Trafficking in Women and Children for Prostitution [CPCT] and Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia [CPCW]
4.2. SAARC Social Charter
4.3. Colombo Statement on Children of South Asia
4.4. South Asia Initiative for Ending Violence against Children
5. Concluding remarks
Chapter IV Addressing child marriage at the national level of India
1. International commitments and legal system
1.1. International commitments
1.2. The legal system of India
2. Personal laws
2.1. Hindu law of marriage: The 1955 Hindu Marriage Act [HMA]
2.2. Muslim law of marriage
2.3. Christian law of marriage
3. General laws and child marriage related policies
3.1. Legal framework
3.2. Policy Framework
4. National Human Rights Institutions
4.1. National and State Human Rights Commissions
4.2. National and State Commissions for Protection of Child Rights
4.3. National Commission for Women [NCW]
5. Adjudicating Child Marriage
5.1. Preliminary remarks
5.2. Selected cases
Chapter V Compliance assessment of India’s policies and legislation with the international human rights standards on child marriage
1. Preliminary remarks
2. Minimum age for and consent to marriage
2.1. Minimum age for marriage
2.2. Consent to marriage
3. Child marriage as a harmful traditional practice
4. Related human rights and principles
5. Other concerns
6. Concluding remarks
CONCLUSION
Research Objectives and Themes
This thesis examines the extent to which India's national policies and legislation regarding child marriage comply with international human rights standards. It investigates the effectiveness of the Indian legal framework and identifies the challenges that arise when applying universal human rights within the context of deep-seated cultural and religious diversity.
- The intersection between cultural relativism and human rights universalism.
- Evaluation of the international legal framework concerning minimum age and consent to marriage.
- Assessment of the regional protection mechanisms against child marriage within South Asia.
- Analysis of Indian national laws, policies, and institutions concerning child marriage.
- Identification of gaps in enforcement, marriage registration, and judicial application of existing laws.
Excerpt from the Book
3. The theoretical challenge: Cultural relativism vs Universalism
As already mentioned, where child marriage is most prevalent, it is often justified by community members as entrenched in local cultural values. In the context of the issue at hand, the term ‘culture’ is utilised in a broad manner referring to ‘[t]hat complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man [sic] as a member of society.’ As child marriage is often believed to be required or encouraged by religious texts and teachings, the notion of culture is to be understood as encompassing religion as well, thus, recognising its influence on the cultural identity of societies.
Whether driven by religious beliefs or not, once a practice is accepted as an integral part of the cultural identity of a particular community, its eradication becomes extremely difficult as the community’s members may not see it as something that is begging for change. All this makes child marriage one of the most flagrant illustrations of the conflict between culture and human rights. Thus, the very link between practice and tradition inevitably brings this issue into the centre of the cultural relativism versus universalism debate.
In a nutshell, behind the notion of ‘human rights’, stands the idea of ‘[r]ights of all human beings anywhere and anytime.’ With the creation of the United Nations in 1945, the promotion of ‘universal respect for and observance of, human rights and fundamental freedoms for all’ was developed as a major purpose. This was further reiterated and commonly articulated within the wording of other international human rights agreements. Ever since, the universality of human rights has been questioned from several perspectives, most notably from a cultural one. For cultural relativists, the language of international human rights law is indifferent to the fact that each culture has its own indigenous concept of human rights and reflects Western values which cannot be translated into non-Western laws and perceptions.
Summary of Chapters
Chapter I Framing the issue of child marriage: Provides an overview of the global phenomenon of child marriage, defining its key terms and introducing the debate between universal human rights and cultural relativism.
Chapter II International legal framework on child marriage: Analyzes how international instruments address child marriage through mandates on minimum age, consent, and the classification of harmful traditional practices.
Chapter III Addressing child marriage at a sub-regional level: South Asia: Reviews the role of regional bodies like SAARC and SAIEVAC in promoting child protection and establishing collaborative frameworks to address child marriage.
Chapter IV Addressing child marriage at the national level of India: Examines the Indian constitutional and legislative framework, including personal laws and the role of specialized human rights institutions in addressing child marriage.
Chapter V Compliance assessment of India’s policies and legislation with the international human rights standards on child marriage: Evaluates the alignment of Indian national practice with international human rights standards and identifies structural gaps in implementation.
Keywords
Child marriage, Human rights, International law, India, Cultural relativism, Universalism, Gender inequality, Personal laws, SAARC, Legislative framework, Child protection, Marriage registration, Judicial activism, Harmful traditional practices, Human rights violations.
Frequently Asked Questions
What is the core focus of this research?
The research investigates the degree to which India’s legal and policy framework aligns with international human rights standards regarding the practice of child marriage.
What are the primary themes addressed in the work?
Key themes include the tension between cultural traditions and universal human rights, the analysis of international and regional treaties, the review of India’s specific national legislation, and the impact of judicial intervention.
What is the primary objective of this thesis?
The main objective is to assess the effectiveness of the Indian regulatory framework on child marriage and to identify how international standards can better influence national enforcement efforts.
Which scientific methods are employed?
The study adopts an interdisciplinary socio-legal approach, utilizing situational analysis based on a comprehensive review of secondary data, including policies, legislation, case law, and international reports.
What aspects are covered in the main body of the work?
The body covers the definition and causes of child marriage, the international and regional legal frameworks, an in-depth analysis of Indian statutes and personal laws, and an assessment of how Indian courts adjudicate child marriage cases.
Which keywords best characterize this work?
The work is characterized by terms such as child marriage, human rights, India, cultural relativism, personal laws, legislative framework, and judicial activism.
How does the coexistence of personal laws impact child marriage in India?
The study highlights that the parallel existence of religious personal laws often conflicts with secular national laws, creating an environment that complicates the legal prohibition of child marriage.
What role does the Indian judiciary play according to the author?
The author argues that the judiciary in India has adopted an activist role, which is essential for filling legislative gaps and aligning national legal practice more closely with international human rights standards.
- Citar trabajo
- Velina Valcheva (Autor), 2017, Child Marriage in India. Implementing Universal Human Rights in a Culturally Diverse World, Múnich, GRIN Verlag, https://www.grin.com/document/376765
