By Mass L. Usuf –May 3, 2017
Child marriage is defined as a formal marriage or informal union before age 18. The following statistics from the World Health Organization indicates that this is a global problem, “about 16 million girls between the ages of 15 to 19 and, two million girls under the age of 15 give birth every year”.
In Sri Lanka, the incidence of child marriage is lesser in the city/urban environment and more conspicuous in the rural areas. FOKUS WOMEN observes that, “under age marriage of girls is reported to have increased in Sri Lanka particularly in the North, East and among the rural communities” (April 2016).
Two exceptional events may have contributed to the increase in child marriages. Firstly, the LTTE exempting those who were married from being enlisted. Secondly, marriages between the IDP/refugees mainly among Muslims/Tamils. These marriages were obviously for security reasons. This data should not be generalised.
Another interesting finding is regarding, “Girls below eighteen entering into de facto marriages in the rural communities for several reasons”. One of which is “romantic relationships resulting in elopement”. (FOKUS WOMEN.)
The foregoing clearly substantiates that the Age of Marriage, which is eighteen, as laid down in the General Marriage Registration Ordinance (GMRO) is not being followed strictly.
See the beauty of our Sinhala culture. With the onset of menarche (signifying Puberty) the traditional ‘Kotahalu Magul’ takes place. “She is kept indoors and isolated from outsiders and even the males of her own family” writes Dr. Y.D. Jayatilleke, Sociology and Anthropology Department, University of Jayawardenapura. “This custom is followed to make the physically matured girl to become mentally matured”. The main objective is to instil discipline and restraint. The girl goes through various exercises preparing her “to play her future role as a woman, wife and mother”. Even though she may be under 18 years of age.
With modernity and advancement, the cultural value of discipline and restraint has been transformed. Teenage innocence is waning The drift towards increased teenage sexuality arising from the free intermingling of sexes is a factor for this change.
A UNICEF study (2013), reveals that child marriages were most often a product of teenage sexuality, and do not appear to be linked to customary or forced marriages etc. (See : Emerging concerns and case studies on child marriage in Sri Lanka).
The case of Marmba Liyanage Rohana alias Loku (S.C. Appeal No. 89 A /2009) provides a good illustration.
The accused was indicted for committing rape on fifteen year old Anusha Priyadarshani, a Grade 11 student. Anusha had a love affair with the accused. Her mother became hostile. Life at home became intolerable. One day she met her boyfriend and asked him to take her away from home or she will commit suicide. He took her to his uncle’s house.
During that period they had sexual intimacy as willing partners. Anusha said to Judicial Medical Officer, “I went with him on my own free will and lived together with him.”
School of Legal Realism
The accused (boyfriend) was sentenced to ten years imprisonment. The sentence was appealed and a suspended sentence given. The Supreme Court observed: “There is no doubt whatsoever that the accused is technically guilty of the offence…… However, after considering the facts of the case and the submissions of the counsel, I hold that this is not a case where the accused has to suffer a custodial sentence.”
Hypothetically, say, Kumari a girl below 16 had been impregnated by her boyfriend. The law will indict him for statutory rape. Why? Because the laws says that a girl below 16 cannot consent. This is unreal, arbitrary and contrary to medical opinion.
Underestimating the capacity of a 16-year-old girl is gender discrimination.
He will be sentenced to jail. Their child will grow up seeing the father behind bars. The child deprived of the warmth, love and affection of the father (minimum sentence, ten years). Very depressingly, even the two innocent lovers cannot marry until the jail term is completed. Kumari who is 16 will have to wait till she is 26 to marry (and the father can have his ten year old as his best man!). Practically, does this make sense?
From this emerges other conflicts of interest. Child marriage; Deprivation of the fundamental right to marry; Gender discrimination and the welfare of the new born child. The unrealistic law which prohibits marriage because she is below 18, has created problems further burdening society.