Bangladesh Allows Child Marriage for “Best Interests” of the Child
On February 27, 2017, Bangladesh’s Parliament approved a bill that permits children of any age to be married under “special circumstances,” and on March 11, 2017, Bangladesh’s President signed the bill into law. Under the Child Marriage Restraint Act of 2017, parents or guardians can obtain a court order to allow their children to marry if it is in the child’s “best interests.” The child’s consent is not required.
The exception for “special circumstances” makes previous minimum age protections for children toothless. While the minimum legal age for marriage in Bangladesh is 18 for women and 21 for men, there is no minimum age for marriages sanctioned under the new law, nor does the law define “special circumstances” or “best interests.”
Child marriage is a serious concern in Bangladesh, which has one of the highest child marriage rates in the world and the highest rate of marriage involving girls under age 15. According to figures published by UNICEF in 2016, 52% of girls are married by the age of 18, and 18% by the age of 15. The numbers are even more troubling in rural areas, where 71% of girls are married before the age of 18, compared to 54% in urban areas.
Members of Parliament claim that their aim in creating the exception under this new law is to protect unwed pregnant girls from ostracism, a move that has been praised by Prime Minister Sheikh Hasina and some religious groups. Rebecca Momin, the head of the Parliamentary Committee on Ministry of Women and Children Affairs, said, “Our rural society is very cruel. They will point their finger at the pregnant girl. She will be an outcast in school and elsewhere. People will say nasty things to the girl’s parents.”
In reality, however, “the Parliament is coopting and misappropriating the notion of ‘best interests’ of the child to suit its own ends,” observed Rangita de Silva de Alwis, Associate Dean of International Affairs at the University of Pennsylvania Law School. Article 3, paragraph 1 of the Convention on the Rights of the Child gives a child the right to have his or her best interests taken into account as a primary consideration in all decisions concerning the child. General Comment 14, issued by the Committee on the Rights of the Child, recognizes that the ‘best interests’ standard is vulnerable to manipulation by governments.
As such, General Comment 14 also obligates state parties, with the ultimate purpose of the child’s best interests, to ensure the full and effective enjoyment of the rights recognized in the Convention, including the right to an education and the right to information about his or her reproductive health. Associate Dean de Silva de Alwis notes, “The ‘best interests’ standard is rendered meaningless if not seen in the context of all rights in the Convention. The rights to education, access to health care services, and protection from physical and mental violence are in no way promoted, and are in fact impeded, by child marriage.”
Bangladesh’s Parliament fails to appreciate that child marriage cannot be in the best interests of the child because it undermines the very rights that the “best interests” standard is meant to protect. Indeed, the law encourages sexual violence against children. “Basically, [the law] provides a leeway for sexual predators to buy their way in,” said Khushi Kabir, Coordinator of women’s rights NGO Nijera Kori. Perpetrators of sexual violence will be able to essentially escape punishment by marrying their victims. Meanwhile, victims will continue to suffer at the hands of their perpetrators after marriage.
The law also does nothing to prevent unwanted pregnancies or protect unwed pregnant girls from ostracism, which sponsors of the law claim is its very purpose. Bangladesh has a documented history of failing to help girls prevent unwanted pregnancies. A 2015 Human Rights Watch report found serious deficiencies in children’s information about family planning and access to reproductive health services. Schools in Bangladesh, for example, do not provide education on family planning, nor do they provide students with assistance in obtaining contraception.
Additionally, the law risks perpetuating cycles of poverty and economic insecurity. Girls that are forced to marry at a young age have less access to formal and informal education. Social norms on the incompatibility of marriage and education, restrictions placed on a wife’s mobility, domestic burdens, and childbearing duties all make it more difficult for a girl to get an education and to better her life. In fact, a survey revealed that in Bangladesh only 5% of married adolescents were in school.
The law might face legal challenges after drawing the ire of human rights activists and organizations across the country. Salma Ali, Executive Director of the Bangladesh National Women Lawyers’ Association, said that the organization plans to challenge the law in the High Court.
While there is hope that the law will be successfully challenged, there should be an immediate focus on minimizing damage resulting from this new law now that it is in effect. Heather Barr, senior researcher on women’s rights at Human Rights Watch, urged, “Nothing can change the fact that this is a destructive law. But carefully drafted regulations can mitigate some of the harm to girls.”
Accordingly, Bangladesh’s Parliament should pass regulation banning children under the age of 16 from marrying, without exception, in accordance with interpretations of international law that prohibit marriage before the age of 16 under any circumstances. The Parliament should also clarify the “special circumstances” exception under which children under 18 can marry and provide guidance for judges in their consideration of child marriage requests. The exception should be construed very narrowly to protect a child’s best interests. A social worker should be appointed in each case and given the responsibility of ensuring the child’s best interests, including providing the child with access to reproductive health services and assessing whether the marriage is occurring with the child’s full and free consent. Judges should be trained to recognize cases of sexual violence and instructed to deny requests for marriage where there is any indication that sexual contact was non-consensual.
Further, communities and families should be educated on the long term effects of child marriage on the child’s educational attainment, socioeconomic advancement, and physical and mental wellbeing. Local governments should support groups like Wedding Busters, which inform parents considering marriage for their children of the risks and consequences of child marriage. These steps are key to truly protecting the best interests of boys and girls.