Morigaon, Assam: On a sunny winter morning on 7 February, Ambiya Khatun stood outside her mud house holding her four-month-old son on her hips. Dressed in a long printed maxi dress, a pink scarf tied around her neck, the petite, feisty young woman was teary-eyed and visibly distressed.
On the evening of 3 February 2023, Rabul Hussain, Khatun’s husband, had been taken into custody as part of the Assam government’s mass crackdown on child marriage, the first of its kind in India.
“We weren’t given any notice. They knocked on the door looking for him, asked us a few questions and then took him away,” said Khatun, who put her age at 18. Hussain was taken to the nearby police station in Laharighat in Morigaon district—about 3 km from their house and 77 km east of Assam’s capital Guwahati.
Two years ago, Khatun, then 16 and a standard 9 student, had fallen in love with Hussain, then 28 and from the same village. They ran away from home to start a family, she said. Now, her husband’s arrest has left her bereft and stunned.
“I will kill myself and my son if they don’t release him,” said Khatun. “What future do the two of us have without him?” She added that she continued her studies after marriage, with her husband taking her to school every day on his cycle.
The family, which also includes Hussain’s parents, is entirely dependent on his daily earnings of about Rs 300 to Rs 500, which he earned on farm jobs and other daily wage labour. Some days, he found no work.
“Ghoror obostha bhaal nohoi (the family’s financial situation is bad),” Khatun said, making it clear she wanted no money or help through any government programmes. “I just want my husband back.”
‘A Police Action Directed At Muslims’
Assam’s mass arrests, since 3 February 2023, unfolded in a state that reports one of India’s highest child-marriage rates but also its 10th-lowest female literacy.
As of 13 February 2023, over 3,015 people had been arrested, according to chief minister Himanta Biswa Sarma, whose Bharatiya Janata Party (BJP) government, critics said, had made Muslims the target of the underage-marriage sweeps.
Preliminary media reports quoting official data (here and here) indicated that Muslims were indeed the focus of the arrests, which Sarma denied.
“The Assam government’s crackdown on child marriages is more a police action directed against Muslims than an attempt to address a social problem,” the Deccan Herald wrote in a 10 February editorial.
The same day, the Times of India reported that a third of rural women aged 20-24 in Assam were married before the age of 18, of which 74% had not completed more than 10 years of schooling, with marriages higher in areas where schools had been closed.
Many of those arrested now face child-sexual-abuse and rape charges, which the Guwahati High Court on 14 February described as “all weird allegations, absolutely weird”, adding that no arrests or custodial interrogation were required in child-marriage cases.
National health data show there were states worse off than Assam, and those that had criminalised underage marriage had done so prospectively not retrospectively, as Assam now has.
The data also indicated lack of education and healthcare were correlated with Assam’s high rate of child marriage, and that, experts said, was where the solutions lay, not in imprisoning thousands. Child marriages drop, research shows (here, here and here), when female literacy and female participation in the workforce rise and child and maternal mortality fall.
“This is also why Parliament and Centre haven’t wielded the blunt instrument that is being deployed in Assam today,” a Times of India editorial on 6 February noted. “They have recognised that economic and educational development is very uneven across the country, and that child marriages remain the most common among the most deprived populations.”
‘One Generation Will Have To Suffer’
“Our crackdown against child marriage has entered its second week with 3,015 arrests made so far,” Sarma said on Twitter on 13 February, a day before the High Court’s criticism. “The drive against this social evil will continue. The positive side is that now people are coming out and surrendering before police (sic).”
“We seek the support of the people of Assam in our fight against this social crime,” Sarma said. “In order to save lakhs of girls from this situation in the future, one generation will have to suffer. There is no question of sympathy here… Child marriage has to stop in Assam and action against it will continue.”
Sarma said the drive would continue until the next Assembly election, in 2026, even as national data, quoted by the Hindustan Times in October 2022, showed that 96% of all child-marriage cases were pending in 2021 and no more than 10% ended in conviction.
Those arrested include fathers, husbands and priests, and families have resisted the arrests. On 4 February, police used teargas and batons to disperse hundreds of women protesting outside a police station in the western Assam district of Dhubri.
The Muslim-majority districts of Barpeta, Dhubri, Hojai, Bongaigaon and Nagaon have all seen over 100 arrests each, more than other Assam districts, the website Scroll reported on 7 February. Out of 2,580 people then arrested, 1,560 were Muslim and 1,020 Hindu, the Print reported on 8 February.
Sarma insisted his government was at "war" against child marriage and was not focussed on a particular community.
According to critics, the mass arrests are the latest attempt of the BJP-led government to marginalise Bengali-speaking Muslims in the state even further.
“If you look at some of the last brutal actions taken by the government—be it with evictions and fake encounters—Bengali Muslims have been the prime target,” said Abdul Kalam Azad, PhD, a postdoctoral lecturer and researcher at Vrije University in Amsterdam, the Netherlands.
In multi-ethnic Assam, where Muslims are 34.22% of the population, linguistic identity and citizenship issues have dominated contemporary politics. Bengali-speaking Muslims—who migrated from what was once East Pakistan and is now Bangladesh—face discrimination and marginalisation.
The BJP government, since it came to power in New Delhi in 2014, has announced policies that have been criticised for discriminating against minorities, including the controversial citizenship law, which many say is discriminatory, particularly to Bengali-speaking Muslims. Assam has witnessed evictions, custodial deaths and fake encounters, where the targets were overwhelmingly or substantially Muslim.
“But other marginalised and vulnerable communities such as tribals, Bengali Hindus and the tea-garden community (economically and socially marginalised, the tea tribe community comprises workers originally from Orissa, Madhya Pradesh, Bihar, Andhra Pradesh and West Bengal who settled in Assam permanently) are also the victims,” said Azad.
A Misuse Of The Law: Critics
In making the mass arrests, the Assam government has relied on two laws related to prevention of child marriage and child sexual abuse.
The first is the stringent Protection of Children from Sexual Offences (POCSO) Act, 2012, which makes sexual offences against children a non-bailable, cognisable offence with a minimum punishment of three years for non-penetrative sexual assault and 20 years to death for aggravated penetrative sexual assault.
Under the POSCO, anybody with knowledge of such an offence—a doctor, a parent, an accredited social health activist (ASHA) worker—is obliged to report it or face imprisonment for failure to do so.
The second is the Prohibition of Child Marriage Act, 2006, (POCM), which carries a sentence of two years and a fine. It sets down the minimum age for marriage at 21 for boys and 18 for girls. However, it does not make a marriage with a minor girl void, unless the girl herself applies for annulment within two years of such a marriage taking place.
The government has denied targeting Bengali Muslims in its “war” against child marriage, but Muslim Personal Law recognises that a girl can marry after attaining puberty, a provision currently challenged and being heard in the Supreme Court.
Meanwhile, the Bhartiya Muslim Mahila Andolan, a group seeking reform in personal law, in a press release said that the Assam government’s “vindictiveness and the open targeting of child marriages within the Muslim, Hindu and tribal communities reek of their anti-Muslim and hatred for the poor”.
‘It Is A Bad Idea’: Guwahati High Court
Chief Minister Sarma said the POCSO would apply in cases where the girl is under 14 at the time of marriage (the arrests are taking place with retrospective effect for the past seven years); where she is between 14 and 18, the POCM would be applied.
It is not really clear why or how this distinction is being made. In any event, the POCSO overrides any other law where aggravated penetrative sexual assault is concerned.
The Supreme Court ruled in 2017 (Independent Thought vs Union of India) that sexual intercourse with a wife aged between 15 and 18 while not a crime under the Indian penal code was indeed a crime of aggravated penetrative sexual assault under POCSO.
The POCSO applies to anyone who is accused of sexually exploiting a child below 18. “Under POCSO, there is no consent in the legal sense among those below 18,” said Guwahati-based advocate Aman Wadud, adding that the police had started applying the POCSO in most child-marriage arrests in Assam.
On 14 February, the Guwahati High Court granted anticipatory bail in nine cases of child marriage. “What is the POCSO [offence] here?” Justice Suman Shyam said. “These are serious allegations” and not “matters for custodial interrogation”.
“This is causing havoc in the private life of people," said Justice Shyam. "There are children, there are family members, there are old people. This [child marriage] may not be a good idea– obviously it is a bad idea– but we will give our views when the right time comes.”
Outside the courtroom, several arrests have been made invoking both the POCSO and the POCM. At the Laharighat police station in Morigaon district, a policeman, speaking on condition of anonymity, said men such as Khatun’s husband Hussain had indeed been booked under both laws.
The girls and women Article 14 spoke to claimed that they “married for love and wanted their husbands back”. In such a scenario, the marriage was still valid under the provisions of the POCM.
If a wife does not wish to nullify the marriage which took place when she was a minor, then the marriage remains valid, according to Swagata Raha, head of research and co-head of restorative practices at Enfold India, a child rights advocacy based in Bengaluru. "She is entitled to all the rights as a lawfully wedded wife. She will have rights over her husband’s property, and her children will have the right to succession.”
In other words, while a person can be penalised under the POCSO as well as the POCM for marrying a girl below the age of 18, it is still possible for the marriage to remain valid.
The Karnataka Amendment
Karnataka is the only state in India that introduced an amendment in 2016 to the POCM following what are called the Justice Shivraj Patil recommendations, which suggested making every child marriage void or invalid.
But even this has not stopped child marriages in Karnataka, where the number of child marriages doubled over the past two years, particularly during the pandemic, when schools were shut or shifted to online learning, according to data tabled in the legislative council by the women and child development department.
Police by and large do not get involved in Karnataka, unless it is, for instance, to prevent a child marriage before it takes place or when someone actually files a complaint, in which case those responsible, including the priest and others who helped organise it, can be booked.
“It’s not an offence in itself if the marriage is declared void by either of the parties," said Raha. "In that sense, there is no involvement of the police just because a marriage is void."
There is also a danger in declaring these marriages void, warned Raha. “If we say that this marriage is void, tomorrow the man can turn around and say that the marriage is invalid,” she said. "We have not yet attained a status as a society where girls are aware or empowered enough to access their rights."
Raha said declaring such marriages void would make them more vulnerable because it would be easy for a husband to say ‘I have no responsibility towards you because you are not my lawfully wedded wife’.
"It looks attractive to say that let’s make all child marriages void but the implications will be severe for the girls who are part of these marriages,” said Raha.
According to the 2019-2021 National Family Health Survey (NFHS)-5, 31.8% of women in Assam in the age group of 20-24 years were married before the age of 18 compared to the national average of 23.3%. Moreover, 11.7% of women in Assam in the age group of 15-19 years were already mothers or pregnant when NFHS-5 was carried out, compared to 6.8% nationwide.
Hindus account for 23.5% of underage marriages in Assam, closer to the national average (23.2%); Muslims account for 45.8% and Christians (23.8%), substantially higher than their respective national averages of 26.4% and 15.2%, respectively.
Acquittal Likely If Women Acknowledge Consent
Families of men arrested in Assam fear they will have to face charges and court appearances. But if the wives say they married for love and with their consent, acquittal is likely, said Raha.
Samima Akhtar's story was similar to Khatun's. Akhtar, like Khatun, is from Laharighat in Morigaon district. She, too, claimed that she was 18-years-old and was 17 when she married Muzaffar Ali in the summer of March 2022. Ali was 34 then.
“Neither of our families were agreeing to our marriage," said Akhtar, who has been living at her maternal home since her husband’s arrest. "I ran away from home twice to be with him. It was only when I threatened to take my own life, he decided to marry me, and we fled to Nagaland.”
Now with a month-old daughter, Akhtar worries that she will "have to be dependent on my brothers."
Experts agreed that child marriage must be curbed, but not at the cost of poor families. “The process applied by the government is not right,” said Ratul Hoque, a local youth leader and social worker from Morigaon.
India is home to the largest number of child brides in the world with 1.5 million girls under 18 married every year, according to Unicef.
Assam is certainly a high-prevalence state when it comes to underage marriage. But Bihar, West Bengal, Rajasthan, Tripura and Andhra Pradesh report a larger proportion of underage marriages, with over 40% of women between 20 and 24 married before their 18th birthday, according to the 2019-2021 National Family Health Survey (NFHS) data.
But over a decade, there has been a 20 percentage point decline in child marriages in India, from 47% in 2006 to 27% in 2016, the United Nations International Children's Emergency Fund (UNICEF) reported in 2018.
Assam has India’s fifth highest maternal mortality rate (MMR) and third highest infant mortality rate (IMR). Its MMR of 14, almost double the national average of 7.3. The state’s IMR of 40, too, is higher than the national average of 30.
Sarma is reported to have said that child marriage was the principal cause of maternal mortality and teenage pregnancy and that arrests were the only way forward.
Meanwhile, crackdowns such as the one that Assam is witnessing would push girls further away from the healthcare system, warned Raha.
“Even if they need medical attention, they might be scared to avail it," she said. "Nobody would want to push their family members into a situation where they are getting arrested.”
Child marriage is a social problem under discussion for years, said Rahul Bais, a child rights activist and a social expert in community-based rehabilitation of persons with disabilities in Maharashtra.
As the secretary of Swarajya-Mitra Samajik Sanstha, which works in 20 districts of Maharashtra, Bais said he had seen first-hand how marginalised communities benefited from government schemes.
Education and better transport facilities in rural areas should be made accessible to girls, he said, to keep them in school longer and delay marriage.
“In conflict affected, displacement and disaster-prone areas and amongst all marginalised communities, young girls are seen as a burden,” said Azad of Vrije University. Child marriage prevalence is highest in states that lack education facilities and employment opportunities for its girls.
‘You Can’t Criminalise A Social Problem Overnight’
There’s the worry, too, that Assam's crackdown would lead to adverse affects on women, said Guwahati-based social activists Anurita Pathak and Jennifer Liang.
While stopping child marriage was important, “you can’t arbitrarily solve this problem because the poorest are going to get the most affected”, said Liang. "You can’t criminalise a social problem overnight like this.”
Assam-like crackdowns would also lead to distrust in ASHAs, anganwadi workers and other last-mile health care providers, said Pathak, as many girls would be scared to speak to them, fearing retribution.
“Women are vulnerable and this will lead to further abuse and marginalisation,” said Pathak. Police action only takes care of accountability in law enforcement, said experts, not beyond.
“Now, since the conversation has come to the fore, it is time to think about it holistically,” said Assam-based child rights activist Miguel Das Queah.
“But it also means that all the other stakeholders such as the child protection unit and social welfare departments will have to come together,” said Queah. “Will it solve the problem? We don’t know.”
Shaking up families that are already settled, married and have children, is not the solution, Raha noted.
Meanwhile, women like Khatun and Akhtar said they wanted their husbands back. So, too, did Husnara Khatun, heavily pregnant, as she lowered herself carefully into a plastic chair in the remote village of Phaliamari Pothaar in Morigaon district.
Husnara said she was 19 and her 25-year-old husband, who worked as a labourer at a brick kiln, was arrested by the police on 3 February.
“Eku nalage, bas shaami lage,” she said. I don’t want anything, just my husband.
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(Sanskrita Bharadwaj is an independent journalist from Assam.)