22 April 2017

How Old is 14 Really? On Child Marriage and Case-by-Case Justice

In 2011, German authorities put a sudden halt to the six-months grace period during which minors could continue to use driving licenses acquired abroad. Until then, kids fortunate enough to get their hands on foreign driving certificates––mostly during school exchange programs with American high schools in the context of post-war international understanding––catapulted straight to the top of their school’s social food chain by exchanging mundane conversations about public transport for the mature hassle of finding parking spaces near school grounds. International Law had found its limits in the health and safety directives of the vehicle registration office, or to use the sexy German word: Kraftfahrtzeugzulassungsbehörde.

Six years on, the chancellor’s cabinet is determined to invalidate another certificate a comparably small (but steadily growing) number of refugee minors demand legal recognition for: their marriage certificates. A bizarrely archaic hiccup for old-school historicists, curiously ambivalent and legally intriguing to others, child marriages currently enjoy an unforeseen centrality in Germany’s public life. On the face of it, the government’s proposed marriage bill endeavours to treat foreign marriage certificates of minors with the same suspicion as American driving licenses. But since the proposed marriage bill is targeting Syrian refugee girls, with some Afghans and Iraqis thrown in the mix, most media outlets in a well-choreographed reflex of uniform dissent have accused the government of more sinister motives. Seasoned political journalists, the ones who tirelessly remind their readers how they speak truth to power, were first to point out that with the general elections around the corner, the bill surfaces at an all too convenient time for Angela Merkel. Through a Machiavellian distancing from her open-hearted refugee policies and a muscling against asylum seekers Merkel unashamedly pandered towards the growing right-of-centre vote bank (long viewed the CDU’s birth right), an electorate uneasy to identify directly with the scruffy populist alternative, the AfD. Thus, declaring child marriages of refugees null and void the very moment a married couple crosses German borders was nothing more than an empty xenophobic gesture targeting the weakest section of society for populist applause––no different from openly racist minaret or burka bans.

In a thoughtful article published on this site, Sabine Witting explored how such legislative manoeuvres sit awkwardly with International Law and lack a much-needed balanced view of the Einzelfall: the individual trials and tribulations a child has experienced, the emotional bond she may have developed to her husband, and the delicate situation of being stranded in a far-away-place without any meaningful social structures and family support. Witting’s objections are in kindred spirit with the OLG Bamberg’s 2006 judgement in a case involving a 14-year old Syrian girl married to her 21-year old cousin. The couple was separated upon arrival in Germany, the girls placed under the guardianship of child services, and soon after began took up their legal battle for reunification. Bamberg’s OLG ultimately ruled that while marriage at 14 conflicts with the ordre public––an exit clause national legal orders can employ to reduce international law’s glaring heat just before it is about to burn holes into societies moral fabric––the fall-back legal framework remained Syrian Law of Personal Statues. Here the couple’s repeated sexual intercourse had healed any legal deficiencies regarding the age of the girl, and since consensual sex of adults with 14-year olds was not a criminal offence according to the German Penal Code, there were no legal objections to the couple’s reunification. This reasoning is Echt-German! While Bamberg’s ruling will also be remembered for its bold citations of Wikipedia in key questions concerning Islamic Law, it is difficult to read it as anything but a cry for help: the Bundestag should introduce proper regulatory mechanisms, or at least the BGH should speak a final word in this matter.

Enter 2017, and it seems that despite Hegel’s progress predictions of constitutionalism’s triumphant march from-the-west-to-the-rest, Europe today is hard pressed to look beyond its shores for instructive twenty-first century survival scripts. India’s past offers some lessons on child marriages for the current German predicament. As a UNICEF report found last year, a shocking 35% of girls of 15 years and younger are married. The number rises to 65% if extended to include 18-year olds. These figures fly right in the face of two centuries of liberal constitutional discourse seeking to curb child marriages, where early nineteenth centuries liberals like Ram Mohan Roy had placed age restriction for marriages at right at the heart of India’s constitutional agenda. So why had an issue of such burning significance failed to materialise in any meaningful way? Parachuting into early parliamentary discourses of the twentieth century presents us with the following picture.

In July 1927, when the Indian Legislative Assembly had swapped the humidity of Delhi’s Vidhan Sabha for a cooling stint in a Kashmiri hill station, Har Bilas Sarda, a classic liberal in many respects, proposed that some age restriction should be placed on Hindu child marriages. Yet, Sarda himself had little hope that his bill would pass. For one thing, his proposal had repeatedly failed to gather traction (or even be heard) in the preceding decades, with Indian neo-conservatives immediately on the fence of what smelled like an intervention into native religious practices. After some half-hearted attempts to push through legislation that would raise the age limit for marriages to 14 in the late nineteenth century, the British had largely withdrawn to an awkward trade-off to practice non-interference into private ‘religious household matters’ of native Indians in return for political docility.

But Sarda came laden with a whole set of fresh arguments and statistics. With a tenth of Indian girls married off before the age of eight, he attacked his colleagues, Indians were not only jeopardising the physical well-being of these girls, but in the new global race for civilizational supremacy risked serious evolutionary disadvantage that may well lead to the extension of the Hindu race. If it was not for child marriages India had long acquired independence, either because there was no historical waiting room in which Indians could be locked away in perpetual tutelage to overcome their cultural shortcomings, or because the sheer physical strength of men born from adult women would frighten the British enough to pack up their things and leave. Fully equipped with the latest Orientalist tropes, Sarda went on to bemoan that ‘even China has passed a law forbidding marriages of girls below sixteen and boys below eighteen’, and now only Indians were left carrying the extinguishable flame of barbarism.

While Sarda insisted that even the sacred Hindu code of ‘Manu’, from which a number of neo-conservative politicians derived their political philosophy, would allow the marriage of girls three years after they had reached puberty, and even then just in exceptional circumstances, the general sentiments in the assembly could not warm up to his idealist zeal. Partly due to the fact that religion had emerged as a space of imperial resistance, in which the selective blindness of the colonial gaze allowed Indian radicals to smuggle subversive political messages freely into the religious grammar. But partly because behind the thick veneer of respectability and civility, the domineering disciples of Ram Mohan Roy viewed unmarried girls who stayed with their parents after the menstruation cycle began as a curse for the Hindu community at large. This lead many celebrated educators––think only of the revered Bengali Nobel prize winning poet Rabindranath Tagore––to take leading roles in turning their daughters into child-brides.

It was widely held that unmarried women would swamp Indian cities, and with no strong patriarchal hand putting them in their place, ultimately indulge in prostitution, illicit sex, and crime. Much of the problem for Indians in their quest to recover liberties, was not so much child marriages per se, which bounded women in servitude to their husbands, but the moment this bond dissolved; that is, when the end of the contractual relationship resulted in widowhood with the husband’s death. An odd fetishism that regarded the dissolution of existing contracts as a greater evil than their content. The dress rehearsal for this debate had long been in the making with nineteenth century anti-abolitionists objections, that the decisive reasons for slavery’s continuance––despite its brutally extractive and dehumanising character––lay in the apparent social fact that any sudden dissolution of the contractual relationship between the slave and the master would throw the political community as such into anarchic chaos.

In India, few cases were brought to court after the Sarda Act’s reluctant ratification in 1929. This was mainly because the neo-conservatives wing had manged to cut the law to size. In its final form the bill did not interfere in existing child marriages. And even if child marriages had been consummated after the passing of the bill, a balanced view demanded that the opinion of the girl had to be taken into account before the marriage could be dissolved. Under no circumstance should married minors be ripped out from their delicate social bonds, however fraught these were with legal stigma. After all, neo-conservative liberals claimed that sexual intercourse below the age of 15 was regarded as statutory rape since 1871, so young girls had sufficient legal protection against their husbands. But while hospitals remained filled with child-brides giving births at ever younger ages, and frequently dying in the process, only whispers reached the colonial courts.

Roughly 80 years later, India’s Lok Sabha tackled the issue of child marriages anew. A sober view had forced them to acknowledge that the legal medicine to cure India’s society from child-marriages––with nuanced approaches to do justice to the complexity of the problem and take into account the child’s view––had only intensified the disease. A complete ban of child-marriages, no different from a complete ban of slavery, certainly comes with its own inherent set of injustices and violence, both ontological and real, but seems an opportune path if we––the proverbial democratic ‘we’–– are wary not to enter the unsavoury debate so masterfully parodied in Dave Chappelle’s classic 2004 stand-up routine For What It’s Worth to process R. Kelly’s piss-tape scandal: How old is 14 really?


SUGGESTED CITATION  Hussain, Adeel: How Old is 14 Really? On Child Marriage and Case-by-Case Justice, VerfBlog, 2017/4/22, https://verfassungsblog.de/how-old-is-14-really-on-child-marriage-and-case-by-case-justice/, DOI: 10.17176/20170422-153432.

36 Comments

  1. Frank Cranmer So 23 Apr 2017 at 15:53 - Reply

    Wikipedia??!!!

  2. Jacob F. So 23 Apr 2017 at 21:31 - Reply

    Sehr schön und verständlich geschrieben!

  3. Anon So 23 Apr 2017 at 21:54 - Reply

    Be honest Adeel…thjis text was a challenge to mention Tagore, Chappele, Merkel, Hegel, Indian parliament and the German court in one essay.good read though

  4. Fischreuse Mo 24 Apr 2017 at 05:53 - Reply

    Congratulations! Germany on its way to a 19th century India situation thanks to an uncontrolled mass immigration.

    Wir schaffen das!

  5. Leser Mo 24 Apr 2017 at 09:28 - Reply

    „In India, few cases were brought to court after the Sarda Act’s reluctant ratification in 1929. This was mainly because the neo-conservatives wing had manged to cut the law to size.“

    Neo-conservatives in 1929? Which year do have to go back to find, well, regular conservatives? Or did neo-cons act after 1929? This is confusing.

  6. jansalterego Mo 24 Apr 2017 at 16:42 - Reply

    One should also note that 14 is just two short years away from the general legal marriage age in Germany.

  7. Adeel Mo 24 Apr 2017 at 19:42 - Reply

    @Leser yep, the usage of neo-conservatives in the early twentieth century Indian political context is brought together crisply in Chris Bayly’s „Recovering Liberties: Indian Thought in the Liberal Age“ (CUP, 2012). A good place to start if you are interested in this stuff.

    @jansalterego the second part of the bill is raising that age bar to 18, I think.

    @Fischreuse you are missing the point.

    @Jacob thanks.

  8. SaveTheChildren Mo 24 Apr 2017 at 21:16 - Reply

    „One should also note that 14 is just two short years away from the general legal marriage age in Germany.“

    What kind of calculus are you trying to apply here? The legal age limit for marriage in Germany is 18 years.

    This results in 14 years being 4 long years away from the legal age and 1 day away from child abuse.

    The 16 years age limit for girls is only granted in exceptional cases.

  9. SaveTheChildren Di 25 Apr 2017 at 08:04 - Reply

    > And some 14 year are physically and mentally fully grown up.

    … and a majority of the devine child abusers will wholeheartedly agree that this is the case even for the nine year old girls that happen to be their prospective future wives.

  10. Leser Di 25 Apr 2017 at 09:11 - Reply

    „And some 14 year are physically and mentally fully grown up.“

    And some are not. Want to judge and discuss that on a case by case basis? I hope not. Sometimes, generalisations do serve a purpose.

    But one could instead point to the fact that 14 is the age of consent* in Germany: old enough to have sex with, not old enough to marry.

    Let’s all dwell on that for a moment and then try to say that the issue is dealt with conclusively in Germany.

    *For the nitpickers: Yes, with some exceptions, such when abusing some kind of legal power of the minor or if you know (!) that the 14 year old is exceptionally below-average mentally for his/her age. But most are free game, according to the law.

  11. anon Di 25 Apr 2017 at 14:33 - Reply

    marriage=legal contract, therefore 18 is reasonable.

    sex= physical act, therefore 14 is okay.

    people confuse these two all the time.

  12. Leser Di 25 Apr 2017 at 14:42 - Reply

    i agree, the bill is a step in the right direction.

  13. Leser Di 25 Apr 2017 at 15:01 - Reply

    Or maybe they don’t confuse these two, but question the difference.

    Having sex with a 14 year old = okay
    Getting a 14 year old pregant = okay
    Marrying a 14 year old = not okay

    I, personally, see getting pregnant as a more serious decision than getting married. But maybe I’m strange that way. Or confused. Still, if I’d be king for a year, I’d probably overhaul the matter from the start up. The current rules are somewhat contradictory.

    Btw.: It’s possible to enter a legal contract at age 7 in Germany (for the nitpickers: yes, with restrictions).

  14. Papagei Di 25 Apr 2017 at 19:29 - Reply

    I get your point!

    I see marriage more of a legal (contractual) fiction, whereas getting pregnant is more of a real physical act.

    The protection of minors in the contractual sphere needs to go hand in hand with taking some rights away from them. Regarding pregnancies, I think, social pressure works much better than law.

  15. Nobody Di 25 Apr 2017 at 19:35 - Reply

    @Leser how would you overhaul the matter? Push everything to 18? So mandatory abortions if you get pregnant before??

  16. Papagei Di 25 Apr 2017 at 22:44 - Reply

    Mandatory Abortions for minors? Sounds like Nazism to me..

  17. Leser Mi 26 Apr 2017 at 10:14 - Reply

    Drafting an overhaul for this topic goes a little beyond the scope of comments under a blog entry.

    But one would probably have to start at the problems that arise from age of consent and the minimum age for criminal liability. If you look at some cases one can construct there (and that most certainly happen, but are rarely prosecuted), your head starts spinning. Then work your way up to a reasonable solution for the marriage problem.

    There was a public outcry some years ago when a teacher was found not guilty of abusing a minor when he had sex with a (iirc) 14 year old girl as he was a teacher to the girl, but not the primary teacher for the class. If that reflects public opinion, one would probably have to increase the age of consent or lower the bar for consituting an abuse of power for such constellations, but be careful about not creating new issues.

    That’ll of course be a complex and controversial issue, and I doubt that a solution for all problems could be found.

    To paraphrase Trump: Who knew that laws regarding sexual intercourse could be so difficult?

    But the current status has some absurd points in it.

    And no, no mandatory abortions.

  18. Adeel Mi 26 Apr 2017 at 11:44 - Reply

    @Leser: I like how you think.

  19. george Mi 26 Apr 2017 at 17:03 - Reply

    Unfortunately, the author gives more attention to punch lines than to the details of the Indian experience and why he thinks it could inform the German debate.
    First, I haven’t read any comment criticising the German draft as a „xenophobic gesture“. Nobody is defending child marriage in this debate. And also nobody is worried about young, unmarried women „swamping the cities“. The reference to slavery is nothing but polemics, too. The question is though, whether the annulment of the marriage in some cases may lead to undesirable consequences and thus to the minor being worse off than before. If so, second-best solutions may be preferable. This is a very difficult question (both normatively and empirically) and I myself fully understand the feeling of unease with these kinds of arguments. But they are just as much (or even more) about the young wife’s well-being as the arguments of the other side.
    Maybe the Indian experience can provide insights for the German debate. And I would be thrilled to hear about them. I couldn’t find them in this article though.

    – The Indian law didn’t interfere with existing marriages, the German law will.
    – The Indian law provided for an individual assessment of marriages consummated after the passing of the bill. The German discussion is about whether such an assessment is needed for marriages contracted under foreign law.
    – The author’s argument against the Indian bill seems to be that it has „intensified the disease“. Is that supposed to mean that after the bill was passed India had more child marriages than before? Is this really a plausible scenario for Germany in case we would pass a bill providing for an individual assessment before the recognition of marriages concluded abroad? It would still be legally impossible to marry a minor in Germany, apparently that wasn’t the case in India.

  20. Adeel Mi 26 Apr 2017 at 18:46 - Reply

    Hi George,

    Thank you for reading the article and for your insightful comment! The article is best enjoyed in tandem with Sabine Witting’s on these pages, which I am sure you have seen. As you rightly point out, the Indian experience is very remote from the German one – temporarily, spatially and legally. This was not an exercise in constructing comparable socio-legal habitats for conclusive policy recommendations, but, something that hermeneutics-junkys would call „Annäherung“.

  21. SaveTheChildren Mi 26 Apr 2017 at 19:19 - Reply

    „Nobody is defending child marriage in this debate.“

    Then your name is probably „Nobody“.

    If you consider an anullment questionable you are implying that the child marriage is the better option for the girl at least in some cases.

    Exceptions from anullment, however, will bring the number of child marriages up. We can think about marriage tourism to the democratic republic of Turkey and all kinds of circumventions.

    I want to see the number of child marriages go done in this country, because child marriages are evidently against our constitution – and it is clear how we must act to make that happen.

  22. Madison Do 27 Apr 2017 at 00:29 - Reply

    „Unfortunately, the author gives more attention to punch lines than to the details of the Indian experience and why he thinks it could inform the German debate.“

    None of the punches happen for the sake of the punch. They bring out different nuances and layer, actually, in very interesting ways…without imposing heavy jargonistic sentences.

    Before you know the author has caught you in a slavery/child marriage analogy that, I think, brings a lot of conceptual clarity. It might be over the top…but it is quite substantial and not just rhetoric.

    „If you consider an anullment questionable you are implying that the child marriage is the better option for the girl at least in some cases.“

    Exactly!!!

  23. Papagei Do 27 Apr 2017 at 03:15 - Reply

    „I want to see the number of child marriages go done in this country, because child marriages are evidently against our constitution – and it is clear how we must act to make that happen.“

    Are they really? 16 worked just fine for the last 60-years.

  24. SaveTheChildren Do 27 Apr 2017 at 08:54 - Reply

    „Are they really?“

    Do you have any doubts here? Child marriages deprive the girls to a large degree of their freedom to receive higher education and have a job on their own.It endangers their physical and mental health.

    „16 worked just fine for the last 60-years.“

    I worked fine because those exceptional cases remained truly exceptional. With the current mass migration this has changed. Consequently the law must change too. I assure you that we are not turning back into patriarchaic society.

  25. Leser Do 27 Apr 2017 at 11:01 - Reply

    „If you consider an anullment questionable you are implying that the child marriage is the better option for the girl at least in some cases.“

    Anullment is not the only option. Just to illustrate the point (not necessarily as a serious proposal):

    – Put a ten year minimum prison sentence on marriage with a minor.
    – Deny asylum to anyone convicted of the aforementioned crime.
    – Instead of anullment, enact an automatic divorce instead, which would give the ex-bride more rights (esp. payments) against her former husband.

    But, besides that, is it out of the question that having a marriage persist is always, without exception, the worse choice? What about a marriage that maybe started horribly, but grew to be a loving, caring, equal relationship? Maybe a man married a 14 year old because of social pressure, but let her grow up, get an education, didn’t touch her, maybe even lived in another country during her remaining childhood.
    That’ll be unlikely, of course, and maybe even so unlikely that we won’t find a single case in real life.
    But one has to consider that any blanket anullment may lead to tough, unwanted consequences in some cases.

    Don’t get me wrong: I don’t argue that the occasional bad result should stop us from enacting such a law. But it would be nice to include options to treat the odd case fairly.

    In the aforementioned case: Let’s say the marriage gets anulled due to a new law, but the partners immediately marry (again), both due to their own free will and after due consideration. All seems fine. But now comes the kicker:

    We find out that she cheated during the marriage – and one of „their“ kids has another father. If they had been married, the husband would be the child’s father legally. But due to the anullment, he isn’t. The father would accept the child as his own, as he still loves him and her. Also, he has some insurances and similar rights that will provide for his children in case of his untimely death, and he wants to „extend“ that to „his“ beloved son. But on his way to the lawyer, he gets killed in a traffic accident.

    Bam.

    Bad luck for the child.

    A constructed case of course, and I’m not 100% sure my legal assumtions are correct on this. But one may see that anullment can have really, really wacky consequences that nobody thought of.

    A „forced“ divorce would have less of these, I assume.

  26. SaveTheChildren Do 27 Apr 2017 at 13:09 - Reply

    „Bad luck for the child.“

    How about the luck of a child whose father is convicted for murder and is sent to jail for 15 years? Would it not be better if the father is around?

    In any kind of jurisdiction you have potential undesirable secondary effects, so put an end to jurisdiction?

  27. george Do 27 Apr 2017 at 14:17 - Reply

    @Adeel: Thank you for your answer. Not even I had expected your article to solve the problem once and for all. But if your only (and in itself justifiable) argument is basically that we have to leave possible disadvantages for the girls aside and do the right thing , what does the Indian experience contribute to this conclusion?

    @Savethechildren: Oh, come on. I’ve not even expressed an opinion on the problem. With regard to the discussion in general, let me rephrase: Nobody is defending *the institution of child marriage*. Nobody argues that a girl under 16 should be allowed to marry. The only question is how to treat existing marriages.
    Circumvention is a different problem that could be tackled separately. Child marriage tourism to Turkey is not a very likely scenario though as the legal age to marry in Turkey is 17 (16 in „exceptional cases“ and with court approval).

    @Madison: Read carefully. The anti-abolitionist argument paraphrased above is about implications for the political community as a whole, not about the alleged well-being of the slave. And by the way: Nobody is arguing against the girl’s right to get a divorce. Compare that to the anti-abolitionists‘ position.

    Two things are clear to me in this discussion: Firstly, if a girl wants to get away from her husband, the authorities have to provide every assistance she needs. Secondly, she should be legally entitled to alimony after the marriage ends (whether the marriage is divorced or annulled). Beyond that I still struggle to form an opinion. I don’t feel comfortable assessing the consequences of both decisions based on the knowledge I have. And maybe a court hearing could provide me (and/or the judge) with the knowledge necessary.

  28. Madison Do 27 Apr 2017 at 15:27 - Reply

    „The anti-abolitionist argument paraphrased above is about implications for the political community as a whole, not about the alleged well-being of the slave.“

    Anti-abolitionists argument argued from both perspectives!! a) the well being of the slave, who would otherwise lose the „opportunity“ of making a living b) that the political community would fall into pieces because suddenly too many slaves would be freed.

  29. schorsch Do 27 Apr 2017 at 15:39 - Reply

    Again, read carefully. I was talking about „the anti-abolitionist argument paraphrased above“. And I did so for a reason.

  30. Madison Do 27 Apr 2017 at 15:44 - Reply

    Come on, the context pretty much clarifies where the author wanted to go with this!! But if you have to be anal about it…you win. 🙂

  31. schorsch Do 27 Apr 2017 at 15:50 - Reply

    The reference to the argument is preparing the ground for a similar argument in the Indian discussion that was about societal consequences as well: „It was widely held that unmarried women would swamp Indian cities, and with no strong patriarchal hand putting them in their place, ultimately indulge in prostitution, illicit sex, and crime.“ That was the context.

  32. Leser Do 27 Apr 2017 at 17:07 - Reply

    „How about the luck of a child whose father is convicted for murder and is sent to jail for 15 years? Would it not be better if the father is around?“

    Depends on the father. 😉 On a general basis, I’d say that murderers probably have a tendency not to be good fathers. But yes, I see your point.

    As I said: It may be okay to break a few eggs to make an omelet here, or – to say it in a more dramatic way – to destroy the lives of a few to save those of the many.

    But one should keep in mind that we’re stepping into dangerous territory here. Just as we don’t convict people for murder except after a very careful consideration of all the facts and circumstances.

    If we’re okay with a few suicides by former child brides who – in their confused perspective – lost their only family to make a moral point – okay, I’m with you, in all honesty. But that still is quite a decision. I’d welcome it if nobody will criticise the law when and if any ugly consequences arise.

  33. Leser Do 27 Apr 2017 at 17:09 - Reply

    PS @ SaveTheChildren:
    You asked:

    „In any kind of jurisdiction you have potential undesirable secondary effects, so put an end to jurisdiction?“

    May I refer you to the statement I made in anticipation of your question:

    „I don’t argue that the occasional bad result should stop us from enacting such a law.“

  34. Madison Do 27 Apr 2017 at 18:22 - Reply

    „to destroy the lives of a few to save those of the many.“

    I scream foul!! Article 1 of GG 🙂

  35. Leser Fr 28 Apr 2017 at 08:49 - Reply

    My Spock is greater than your consitutional reservations.

  36. jansalterego Fr 8 Feb 2019 at 19:23 - Reply

    Dear Verfassungsblog,

    this doesn’t sound like me; I tend to shy away from exclamation points and – if I say so myself – I have a better command of the English language. Could you check if the mail address used is identical with mine and if not take the appropriate action (ideally deletion, I wouldn’t want that to show up in a google search for my nick)?

    Thanks.

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