Child Marriage: Legal Dilemmas and Cultural Clash

Child marriage is the marriage that an individual performs without reaching the physical and mental maturity necessary to act as an adult. Child marriage usually means the marriage of a 18-year-old child. Early marriage, these minors are from their families, friends and future; education, deprives the school of life and pushes it under very difficult responsibilities. We see such marriages more especially in developing and underdeveloped countries.

In our country’s legal system; According to the Turkish Civil Code, the Turkish Penal Code and the Turkish Child Protection Law, it is possible to come up with different definitions as girls who are not over the age of 17 and who are not over 18 years of age respectively.

The United Nations (1989) has classified child marriages as an application that should be eliminated in which women and children are exploited for the benefit of men. 

If we look at the factors that prepare the girls’ early marriage; it is thought that the economic level of the family, educational status, unrest in the family, the perspective of the family and the individual stereotypes and the traditional practices provide an environment for early marriage of girls. Early marriages have been observed more frequently in families with poor socio-cultural structure. In such families different early marriage plans are made for boys and girls. While the marriage of boys depends on the minimum level of education and military service, girls do not need to be educated and the limited income of the family is spent on the education of boys. For this reason, girls are engaged immediately after they begin to enter adolescence and then they are married.

Violations of women’s basic human rights and freedoms and gender inequalities that cause unequal power relations between men and women are a reason for the continuation of early marriages. There is a share of women’s perspective on early marriages, mostly under the exposure of girls. In traditional societies, women are considered to be predisposed to innate domestic roles, and there is a widespread belief that no matter how old they are, they can fulfill their household’s mistress and partner duties. One of the reasons that differ in the regions where early marriages are most common is the wars and natural disasters that occur.

The famine in Kenya, the war and drought in Afghanistan, the tsunami in Indonesia, as well as the emergence of early marriages in natural disasters appear as effective events. Some post-disaster marriages are seen as an act of economic income, while others are aimed at protecting individuals who are left alone after the disaster. The choice of early marriage of girls is a protection goal from rape events. By marrying daughterS to a “good” family, parents also establish social ties between tribes or clans and improve their social status. Parents also believe that marrying their daughters young protects them from rape, premarital sexual activity, unintended pregnancies, and sexually transmitted infections, especially human immunodeficiency virus (HIV) and AIDS.

Parents believe that marrying their daughters early protects them from HIV/AIDS. Research has shown the opposite: marriage by the age of 20 years is a risk factor for HIV infection in girls. Risks for Infants Mothers under the age of 18 have a 35% to 55% higher risk of delivering a preterm or low-birthweight infant than mothers older than 19 years. The infant mortality rate is 60% higher when the mother is under the age of 18 years. Data demonstrate that even after surviving the first year, children younger than 5 years had a 28% higher mortality rate in the young mothers cohort.

Religion, Culture and Civil Law Although the general age of marriage in most countries is 18, most countries may allow young people under the age of majority, or even a person who is 16 years of age, with the consent of their parents or legal representative, to obtain a dominant marriage in exceptional circumstances under Turkish Civil Code. In some countries, a religious marriage is not enough and civil marriage is not done. In this case, although the Turkish civil code allows children under the age of 16 to be married by listening to them together with legal representatives and guardians, but these early marriages are legitimized by relying on religion and society in the areas in which minors under the age of 16 are married. Mothers do not have any right to speak on marriages held at a child’s age.

In fact, this is a cultural problem that has come from the past and is still continuing. The woman who has been married without her consent and who is a mother when the time comes does not make any statement of the future of her own daughter. There is no statement of opinion on the future of the child. In the Turkish Grand National Assembly’S report , another reason for child marriages is tradition, traditions and religious belief: ‘traditional family sees the girl as an entity entrusted to the family for a certain period of time, and believes that the real home of the girl is the home of the wife. As a result of discrimination created by gender inequality, it is thought that girls should be married without being aware of sexuality. Marriage at a young age is believed to be easier for the husband to obey and adapt to the new home.

Male families also want to get a bride as young as possible in order to make it easier for them to adapt. It is believed that girls can be protected from sexual harassment and violence that can occur when they are put under the protection of a man as soon as possible. In addition, it is seen as a common belief that these marriages will prevent young girls from getting pregnant and getting pregnant with the opposite sex. In a study conducted in our country, it was reported that early marriage was nourished by traditional practices such as protecting the reputation of the woman, transferring the economic burden of the woman to another, and gaining the prestige of the marriage for women and family.

Child Marriage And The Law Turkish Law According to Article 10 of the Turkish Civil Code numbered 4721, which regulates the general conditions of the act of competence, each person who has the power to differentiate and who is not limited has the capacity to act. According to article 11 titled adolescence 18, adolescence begins with the filling of 18 years of age. Marriage makes the person mature. According to Article 12 of the Turkish Civil Code, the age of 15 years of age can be made available to the court with the consent of the parents.

The Turkish Civil Code regulates the age issue, which is one of the conditions of marriage license, in Article 124. According to this, male or female cannot marry unless they are seventeen years old. However, the judge may allow the marriage of men or women who have reached the age of sixteen in exceptional circumstances and for a very important reason. The parent and father or guardian will be heard before the decision is made. According to the first paragraph of Article 103 of the Turkish Penal Code, the offense of sexual abuse against children under 15 years of age, whether with or without the consent, is between three years and eight years; will be punished. In our society, families marry girls under fifteen years of age.

If this situation is noticed in some way, the defendant and his mother and father and the victim’s mother and father due to the involvement of the judicial proceedings. Even if the victim is seventeen and has a formal marriage with the accused, an arrangement similar to the article 434 of the Turkish Penal Code No. 765 does not exist in the new Turkish Penal Code. Therefore, it is not possible to get rid of this penalty. Therefore, the victim’s husband (defendant), his mother, his father, his father-in-law and his mother-in-law are put on trial for this crime and are being punished. According to Article 104 of the Turkish Penal Code entitled sexual intercourse with minors; “The person who has sex with a child who has completed his fifteen years of age without coercion, threats and deceit shall be sentenced to imprisonment of six months to two years upon complaint.”

In this article, when an unofficial marriage of a child over the age of fifteen is defined as an independent crime, the spouse who has sexual relations with that child is not punished unless the complaint is made. Why Is It Important For Countries To Set 18 As The Minimum Legal Age Of Marriage? A minimum age of law is an important way for boys and girls to protect them from being ready for marriage. In some cultures, the concept of child recognized by the constitution may conflict with the perception of child recognized by the culture that has the Constitution. Therefore, the government must have a consistent and clear legislation.

Age was defined as 18. The primary aims of the law should be to protect children, taking into account the public perception. especially for people who force girls to marry, imposing sanctions must be among the priorities of the law. What Does International Law Say About Child Marriages? The Universal Declaration of Human Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women all directly or indirectly forbid the degrading and mistreatment of girls, inherent in child marriage.

Nevertheless, child marriage is common in many parts of the world, claiming millions of victims annually—and hundreds of thousands of injuries or death resulting from abuse or complications from pregnancy and childbirth. Child Marriage Restraint Act, 1929, Section, “Child” means a person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age. Early marriages have been accepted as a child right, women’s rights and human rights violations. An analysis of descriptive and multivariate data can be used to find out who is married as a child. Data from demographic and health surveys are used when doing this. This gives us reliable results. Education is a very important obstacle in preventing child marriages.

The more educated a girl is, the less likely she is to marry as a child. Improving access to education is an important strategy for both girls and boys in finishing child marriages. Legislative, free and mandatory education as well as programmed and advocacy efforts to expand should demonstrate the strong importance of education in reducing the number of married girls. International and regional agreements prohibit child marriage and set controllable rules for governments to protect children who are not ready physically and mentally from marriage. In this way, governments should report to the committees to ensure that they are able to effectively control how they implement these standards.

According to the laws adopted by some governments, preventing children from getting married requires international protection. Instead of the West, we come across child marriages in Eastern countries, and in countries like Pakistan, we learn that the age of child marriage is 6 years old. It is stated that the increase in child marriages in some regions increased from 25% to 75% and this increase was possible to achieve this degree among regions due to some economic reasons. Because a person is missing from the family and this situation is seen as an advantage for the family. Among the reasons for parents ‘ misunderstanding of child marriage is the misinterpretation of religion. We see that a lot of people are inclined to learn religion from the clergy.

For this reason, as a solution, it is possible for many children to get rid of this situation and continue their lives in a manner that is worthy of human dignity by explaining that child marriages are wrong, convincing people that religion does not promote child marriages, and informing people of criminal sanctions along with the laws. Another reason why child marriages can not be prevented is that these marriages do not take place under the legal framework. Child marriage occurs in rural areas where there is little resources to implement the law. As a solution to this, child protection systems should be created and strengthened, as well as supporting legal aid systems and services.

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