• Wednesday, Sep 26, 2018
  • Last Update : 10:39 am

A violation of her right to choose

  • Published at 04:20 pm December 8th, 2017
  • Last updated at 05:58 pm December 8th, 2017
A violation of her right to choose

In Bangladesh, one of the most specific problems with regards to adolescent girls is the lack of sufficient legislative and social protection of their rights. This encompasses the protection of their sexual and reproductive health and rights (SRHR), in particular, relating to forced and child marriages.

Before 2017, early and forced marriage was governed by the Child Marriage Restraint Act (CMRA) 1929, Penal Code 1860, Nari o Shishu Nirjatan Daman Ain 2000, Code of Criminal Procedure 1898, the Special Marriage Act 1872, and personal laws.

The CMRA 1929 lacked strict, proper sentencing provisions, and also did not declare such marriage invalid. With a view to reform existing laws to provide greater security and punishment for offenders allowing marriage involving girls under the age of 18, the Child Marriage Restraint Act 2017 was enacted, only to give way to newer complications with the introduction of the “special circumstances.”

While these special circumstances have yet to be defined in the form of rules, girls below the age of 18 are at an imminent risk of being victimised in numerous ways. Consent in marriage still remains a major issue here, as the act provides power to the court and the parents of the concerned child to make a decision with regards to the marriage.

This act has no identifiable protection against incidents of forced marriage, or offer possible remedies.

While the act paves ways for decriminalising child marriage, there are other risks associated with this.

Recognise the right of an individual to choose their partner, and refrain from forcing them into marriages with partners they did not choose or do not approve

Adolescent girls subjected to marriage come into early sexual contact and increase exposure to a higher risk of sexual health problems, including sexually transmitted diseases and infections (STDs and STIs), teenage pregnancy and the complications thereof, and the list is endless.

Furthermore, it affects other basic rights of these girls which include their right to education, right to develop, and the right to reproduce.

While child marriage is a widely discussed scenario in recent times, embedded into it is the case for forced marriages. Forced marriage, regardless of the age of the woman or girl forced, is a common by-product of the social construct.

Family honour, social class and the so-called “well-being” of the girl child are among the top reasons.

However, the law has some safeguards to this scenario. The penal code, in Section 366 criminalises forced marriage, in circumstances where a woman has been kidnapped to be compelled to marry against her will.

In significant national cases, such as Dr Shipra Chaudhury & Another v Govt of Bangladesh, 29 BLD (HCD) 2009 183 and Nirmal Chandra Shaha v The State and Others, 30 BLD (2010) 584, a woman or girl’s right to choose to marry was also upheld by the court.

Equally as scenarios of child marriage, forced marriage is a significant violation of a girl’s right to choose and consent to the marriage. It clearly violates her sexual rights, and in the long-run can have more significant impact on her physical and mental health.

What can we do?

  • Recognise that the right to marry and found a family is an individual’s constitutional and internationally recognised right. Therefore, refrain from forcing women and girls into marriages they do not consent to.
  • Recognise the right of an individual to choose their partner, and refrain from forcing them into marriages with partners they did not choose or do not approve.
  • Advocate against child and forced marriage in our families, communities, and workplaces
  • Highlight positive examples of preventing child marriage to inspire girls to prevent these marriages on their own, rather than imposing stereotypical notions on them.
  • Recognise that an individual has the right to decide when to marry and refrain from adding societal pressure as a reason to “get married early.”
  • The reproductive age for a woman is from 12 to 49 years, and hence, refrain from using infertility as a reason to force a woman or girl to get married early, against her will and without her consent.
Faria Ahmad is a Barrister-at-Law.