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Call For Law Reform

Overview

A Review of the Effectiveness of the New Legal Regime to Prevent Child Marriages in Bangladesh

The current law in Bangladesh that addresses child marriage is the Child Marriage Restraint Act, 2017 (CMRA) that repealed the earlier British law of 1929. The Act sets the minimum age of marriage for a male as 21 years and for a female as 18 years. CMRA criminalizes contracting, allowing, or solemnising of a child marriage. In 2018, the Child Marriage Restraint Rules (the Rules) had been also formulated providing details of the formation and responsibilities of the Child Marriage Prevention Committees, along with other functional details.

Although the stringent provisions in the new law, including its focus on preventive measures, have been well appreciated by the key stakeholders, there had also been disagreements over certain aspects of the law. Inclusion of a ‘special provision’ (under section 19 of CMRA) allowing marriage below 18 years had faced serious criticisms. Besides, as both the Act and the Rules were newly enacted, there was a need among the civil society members to eectively understand and act on the new legal regime set up for restraining child marriages. A thorough analysis of the new law would thus provide an opportunity to identify areas that needs greater attention both in terms of law reform and of advocacy strategies for stronger implementation. As such this study commissioned by Plan International Bangladesh analyses the CMRA’17 and the Rules and attempts to identify existing gaps and inconsistencies. Based on the legal analysis, the study then proposes specic reforms in the current legal regime for restraining child marriages.

The study rst contextually analyses the child marriage situation both globally and at the national level and discusses the international and national legal framework relevant for addressing child marriage in Bangladesh. The study then critically reviews the key provisions of the CMRA and its corresponding rules and elaborately analyses the key gaps in the provisions. Apart from the inadequacies in the laws relating to child marriage, the study also focuses on certain other lacunas in the enforcement of the CMRA and its Rules. Such gaps include lack of awareness about the laws and procedures, poor functioning of the preventive mechanisms, weak implementation of the marriage and birth registration system, limited prosecution of child marriage, absence of protection and support systems for victims, etc. The study concludes by recommending a concise proposal for specic reforms in the CMRA and its Rules.

Executive Summary

Executive Summary

The current law in Bangladesh that addresses child marriage is the Child Marriage Restraint Act, 2017 (CMRA) repealing the earlier British law of 1929. The Act sets the minimum age of marriage for a male as 21 years and for a female as 18 years. CMRA riminalizes contracting, allowing, or solemnising of a child marriage. In 2018 the Child Marriage Restraint Rules (the Rules) had been also formulated providing details of the formation and responsibilities of the Child Marriage Prevention Committees, along with other functional details.

Although the stringent provisions in the new law, including its focus on preventive measures, have been well appreciated by the key stakeholders, there had also been disagreements over certain aspects of the law. Inclusion of a ‘special provision’ (under section 19 of CMRA) allowing marriage below 18 years had faced serious criticisms. Moreover, as both the Act and the Rules were newly enacted, there was a need among the civil society members to eectively understand and act on the new legal regime set up for restraining child marriages. It was felt necessary that a thorough analysis of the new law would provide an opportunity to identify areas that needs greater attention both in terms of law reform and of advocacy strategies for stronger implementation. As such the present study analyses the CMRA and the Rules, and attempts to identify gaps and inconsistencies in the new legal regime. Based on the legal analysis, the study also proposes reforms in the current law and identifies key areas of advocacy to influence law and policy reform for upcoming years. 

The analysis begins by contextually analyzing the child marriage situation both globally and at the national level. After briefly discussing the international and national legal framework relevant for addressing child marriage in Banglades, the stud then critically reviews the key provisions of the CMRA and its corresponding rules. Other than the 'Special Provision' allowing marriage below 18 years, the key finding relating to the legislative gaps include- legal inconsistency resulting from conflicting statutory and personal law rules in determining the minimum age of marriage, discriminatory marriageable age between male and female, absence of an option for annulment of the marriage, lack of clarity, in the jurisdiction of courts under various provisions, the provision allowing the release of accused on bond/affidvit, etc. In addition, factors such as introducing a penalty for minors involved in the marriage, lack of provision for social and legal assistance for victims, and non-criminalization of marital rape are also discuss elaborately in review the applicable laws. 

In analyzing the much-debated ‘special provision’, the study highlighted some crucial ambiguities in the provision, which have been left unanswered by the corresponding CMRA Rules. Absence of provision for determining free and full consent of the minor, absence of providing any comprehensive criteria and investigation guideline for determining the best interest of the child, and absence of specifying the ‘special circumstances’ are highlighted amongst such ambiguities.

Apart from the inadequacies in the laws relating to child marriage, the study also focuses on certain other lacunas in the enforcement of the CMRA and its Rules. Such gaps include lack of awareness about the laws and procedures, poor functioning of the preventive mechanisms, weak implementation of the marriage and birth registration system, limited prosecution of child marriage, absence of protection and support systems for victims, etc. These ndings regarding barriers in implementing the laws were largely informed by the responses of the interviewees of the study, as well as by the relevant literature review.

The study concludes by recommending a concise proposal for specic reforms in the CMRA and its Rules. The recommendations for law reforms were based mainly on the analysis of the gaps identied in the CMRA and the Rules. Some of the key proposals include - making the minimum legal age of marriage equal for both genders, keeping a minimum age requirement in the ‘special provision’, making a child marriage voidable at the option of the minor, specifying the jurisdiction of the courts, specifying events on the happening of which the court will not allow an application under the ‘special provision’, amongst others. A key recommendation that the study has proposed in order to curb the potential misuse of the ‘special provision’ is regarding obtaining a written conrmation from the Supreme Court of Bangladesh before any approval of a child marriage by the lower court can become operative. The recommendations also proposed the CMRA to make provision for establishing an independent fund for rescue, rehabilitation, legal aid, medical treatment, psychosocial counseling, etc. of the victims of child marriage. With regard to the criminalization of marital rape, the study recommended removing the colonial provision in the Penal Code 1860 that allows marital rape of a minor girl aged 13 years and above.