SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Indonesia’s Law on Marriage requires the consent of both Parties to a marriage. The age of
consent for marriage under the law is 21. 257 However, with parental consent parties to a
marriage have not attained the age of 21 may be married. 258 The law further states that a
marriage shall not be considered valid unless the man has attained 19 years of age and the
woman, 16 years of age. 259 However, persons below these ages may be married with the
dispensation of the court or an authorized official agreed to by both sets of parents. 260
Forced Marriage: In Bangladesh, in Dr. Shipra Chaudhary and another v. Government of
Bangladesh and others, 261 the High Court Division of the Supreme Court considered a case
of forced marriage before it. The facts of the case involved a doctor practicing in England
who was consistently pressured by her family in Bangladesh to get married. On one of her
visits to Bangladesh she was confined by the family and was allegedly married by force; a
relative along with Ain-O-Sailesh Kendra, an NGO approached the High Court asking for the
doctor to be produced in court.
The Court on ascertaining the facts and speaking to the doctor herself when she was finally
presented in court determined that she had indeed been “illegally detained without any lawful
authority and in an unlawful manner.” While the court did not rule on whether the marriage
was valid or not [not a subject matter of the Rule which to produce the woman in court] and
asked the parties to approach the appropriate fora, it did rule on the matter of forced
marriages. The court held,
“Forced marriage is not at all permissible in our country. But the line between
forced and arranged marriages is often not drawn in our culture with a deeply
traditional respect for the family hierarchy. Article 31 of the Constitution of
Bangladesh provides, among other, that no action detrimental to the life, liberty,
body reputation or property of any person shall be taken except in accordance
with law. Article 32 provides that no person shall be deprived of life or personal
liberty save in accordance with law. Those inalienable fundamental rights
enshrined in the Constitution cannot not only be taken away by anybody including
the parents of the detenu.”
In determining the content of the fundamental rights in the Bangladeshi Constitution, the
court noted that it could look to international covenants as an aid to interpretation of these
rights, particularly to determine the rights implicit in the rights like the right to lie and the
right to liberty but not enumerated in the Constitution. The court thus referred to the
Convention on the Elimination of All Forms of Discrimination against Women, highlighting
in particular Article 16 and the equal right of men and women to “choose a spouse and to
enter into marriage only with their free and full consent.” It also referred to the Declaration
on Elimination Against Women, the Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriages, the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social And Cultural Rights and again
257 Article 6, Law on Marriage, 1974 (Indonesia)
258 Ibid. The provision also specifies who should give consent where the parents are not alive or where consent
is not given or there is a difference of opinion among those who have to give consent in which case the courts
would step in.
259 Article 7, Law on Marriage, 1974 (Indonesia)
260 Ibid.
261 29 BLD (HCD) 2009
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