The government of Bangladesh is presently contemplating a move that would permit girls to marry at 16 with parental consent and/or approval from courts. If the law is passed, it would mark the first occasion that girls are legally permitted to marry below the age of 18 in the Indian subcontinent since the "Child Marriage Restraint Act" came into effect in 1929. 

Despite significant progress in improving gender equality and declining poverty in recent years, Bangladesh has one of the highest rates of child marriage among girls in the world: two-thirds of women marry before the age of 18. The current law forbidding the marriage of minors (below the age of 18 for girls and 21 for boys) is frequently ignored and rarely enforced.

The Bangladesh government argues that denying parents the legal mandate to marry off their daughters can, paradoxically, lead to a higher incidence of child marriage and create further social problems. The logic rests on the idea that with an increasing number of adolescent girls attending secondary school in rural areas and working in the industrial sector, they are more likely to encounter situations where they may be taken advantage of by men, pressured into sexual relationships or persuaded to elope. In traditional society, marriage provides social protection to girls against these threats and, therefore, the reasoning goes, denying parents the legal right to marry off daughters before 18, not only undermines parental agency but also increases the vulnerability of adolescent girls. A junior health minister remarked last year that the government's proposals to modify the existing child marriage laws were a response to an increased ‘tendency to elope’ among girls, and ‘pressure from rural areas’.

The Bangladesh State minister for Women and Children's Affairs, Meher Afroz Chumki, is convinced that a lower age limit, combined with a harsher punishment for breaking the law would be easier to enforce and, ultimately, be beneficial for women. The bill under consideration would increase the maximum penalty from two months to two years in jail. The financial penalty for forcing children into marriage will be increased and changing the bride’s official age using a notary public will be prohibited.  

This is not the first attempt by the Bangladesh government to amend child marriage laws. Only 9 months ago, a bill was introduced in the parliament to lower the legal minimum age of marriage for women from 18 to 16. Following strong opposition from both local activists and international organisations -- including Human Rights Watch -- the Bangladesh government announced last October that the legal minimum age of marriage for girls will remain at 18.

The modified bill currently under consideration was also criticized by human rights activists in Bangladesh on the occasion of International Women’s Day earlier this month.

These repeated attempts to amend the law suggests that Bangladeshi lawmakers are genuinely concerned about the social challenges caused by the practice of child marriage and the laws governing such marriage. At the July 2014 Girl Summit in London, the government of Bangladesh made a commitment to revise the “Child Marriage Restraint Act 1929” by 2015 and eradicate marriage by girls below the age of 15 by 2021, which places it under added pressure from the international community to act on this issue.

Yet, its approach to and reasoning around the issue seems confused and, may ultimately be counter-productive. It is doubtful that increasing parental agency would improve the security of adolescent girls and lower the incidence of child marriage. In 2014, we conducted a nationwide survey of over 6,000 women aged between 20 and 39 years living across Bangladesh which provides a unique perspective to the debate.

About 83% of the married women in our study had their marriages arranged by their parents or other relatives; 38% were married by the age of 15, and 77% by the age of 18. In response to the question ‘what was the most important reason for the marriage?’, only 3% mentioned ‘parental concern about my physical safety’. By contrast, 72% answered that their ‘parents felt it was too good a proposal to refuse’.

Only 14% of women in our sample met their husbands without arrangement by their parents. These women were less likely to marry by age 15 (32%) than those who had arranged marriages (39%); and less likely to say that they ‘would have preferred to delay their marriage’ (32%) than women who had arranged marriages (40%).

If we focus on women from more impoverished backgrounds in our sample – specifically those whose fathers owned less than half an acre of land and were either day-labourers or artisans – the patterns are very similar: a similar proportion met their husbands without the arrangement of their parents; these women were less likely to marry young and less likely to say that they ‘would have preferred to delay their marriage’.

These figures contrast sharply with the narrative of the Bangladesh government that parents tend to marry off their daughters early out of concerns for their safety. Rather, it suggests that women who make their own choice of partners – which access to education and employment opportunities makes possible by providing increased social contact -- are prone to marry later, and more satisfied with their timing of marriage.

In justifying the present bill, the government has pointed out that that legal minimum age of marriage in most developed countries is below 18 years. But it is important to recognise that in most of these societies, arranged marriages are not the norm and the age of marriage is not dictated by social custom. Therefore, children and parents have greater capacity to exercise their agency on the issue. At the same time, functional courts, transparent birth and marriage registration system, life skills training at school, a culture of dialogue at home and child rights protection agencies at the community level further provide check and balances to ensure that the legal right to marry young is not abused. In this setting, the legal sanction of early marry does not infringe on the human rights of adolescents.

These pre-conditions and institutions do not exist in Bangladesh. The country is consistently ranked at the bottom in cross-country ranking in terms of rule of law index. Lack of governance has undermined the credibility of all institutions including those that are supposed to provide checks to the practice of child marriage.

Our figures and reasoning suggest a different approach to the issue. It is not lack of parental agency, but the lack of agency among adolescent girls themselves which is the main source of their vulnerability. Increased agency among adolescent girls regarding marriage decisions is likely to translate into delayed marriage. Furthermore, it is an important goal in its right, consistent with Amartya Sen’s view of ‘development as freedom’.

Therefore, any changes in child marriage law should aim to improve the capacity of adolescent girls to exercise their own choice rather than circumvent it.

M Niaz Asadullah and Zaki Wahhaj

Niaz Asadullah is Professor of Development Economics and Deputy Director of the Centre for Poverty and Development Studies (CPDS) at the University of Malaya. Zaki Wahhaj is Senior Lecturer in Economics at the University of Kent.