Child marriage in India

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Child Marriage India by SDRC

Child marriage in India, according to the Indian law, is a marriage where either the woman is below age 18 or the man is below age 21. Most child marriages involve underage women, many of whom are in poor socio-economic conditions.

Child marriages were prevalent in India. Estimates vary widely between sources as to the extent and scale of child marriages. The International Center for Research on Women-UNICEF publications have estimated India's child marriage rate to be 47% from small sample surveys of 1998,[1] while the United Nations reports it to be 30% in 2005.[2] The Census of India has counted and reported married women by age, with proportion of females in child marriage falling in each 10 year census period since 1981. In its 2001 census report, India stated zero married girls below age 10, 1.4 million married girls out of 59.2 million girls aged 10–14, and 11.3 million married girls out of 46.3 million girls aged 15–19.[3] Since 2001, child marriage rates in India have fallen another 46%, reaching an overall nationwide average 7% child marriage rates by 2009.[4] Jharkhand is the state with highest child marriage rates in India (14.1%), while Kerala is the only state where child marriage rates have increased in recent years.[4][5] Rural rates of child marriages were three times higher than urban India rates in 2009.[4]

Child marriage was outlawed in 1929, under Indian law. However, in the British colonial times, the legal minimum age of marriage was set at 15 for girls and 18 for boys. Under protests from Muslim organizations in the undivided British India, a personal law Shariat Act was passed in 1937 that allowed child marriages with consent from girl's guardian.[6] After independence and adoption of Indian constitution in 1950, the child marriage act has undergone several revisions. The minimum legal age for marriage, since 1978, has been 18 for women and 21 for men.[7] The child marriage prevention laws have been challenged in Indian courts,[6] with some Muslim Indian organizations seeking no minimum age and that the age matter be left to their personal law.[8][9] Child marriage is an active political subject as well as a subject of continuing cases under review in the highest courts of India.[8]

Several states of India have introduced incentives to delay marriages. For example, the state of Haryana introduced the so-called Apni Beti, Apna Dhan program in 1994, which translates to "My daughter, My wealth". It is a conditional cash transfer program dedicated to delaying young marriages by providing a government paid bond in her name, payable to her parents, in the amount of 25,000 (US$390), after her 18th birthday if she is not married.[10]

Definitions of child marriage[edit]

India[edit]

Child marriage is complex subject under Indian law. It was defined by The Child Marriage Restraint Act in 1929,[11] and it set the minimum age of marriage for men as 18, and women as 15. That law was questioned by Muslims, then superseded by personal law applicable only to Muslims in British India with Muslim Personal Law (Shariat) Application Act of 1937,[6] which implied no minimum limit and allowed parental or guardian consent in case of Muslim marriages. Section 2 of the 1937 Act stated,

...any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariats)

— Muslim Personal Law (Shariat) Application Act of 1937[6]

The 1929 law for non-Muslims was revised a several times after India gained its independence from the colonial rule, particularly in 1978 when the marriage age was raised by 3 years each for men and women.[7] The applicability and permissibility of child marriage among Muslims under the 1937 Act, under India's Constitution adopted in 1950, remains a controversial subject, with a series of Supreme Court cases and rulings.[6]

The definition of child marriage was last updated by India with its The Prohibition of Child Marriage Act of 2006, which applies only (a) to Hindus, Christians, Jains, Buddhists and those who are non-Muslims of India, and (b) outside the state of Jammu and Kashmir. For Muslims of India, child marriage definition and regulations based on Sharia and Nikah has been claimed as a personal law subject.[6][8] For all others, The Prohibition of Child Marriage Act of 2006 defines "child marriage" means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person - if a male, it is 21 years of age, and if a female, 18 years of age.[12]

The Prohibition of Child Marriages Act,2006 is applicable to Muslims also. It is universal law which does not differentiate between Muslim & Non-Muslim. Some of the Judgments of Hon'ble Supreme Court and High Courts are being cited here to clarify my point of view.'

In Smt. Seema vs Ashwani Kumar, AIR 2006 SC 1158 ::2006 (2) SCR 220, Hon’ble Mr. Justice Arijit Pasayat observed, “The origin of marriage amongst Aryans in India, as noted in Mayne's Hindu Law and Usage, as amongst other ancient peoples is a matter for the Science of anthropology. From the very commencement of the Rigvedic age, marriage was a well- established institution and the Aryans ideal of marriage was very high.”

The childhood of a person is precious: In Abdul Khader v. K. Pechiammal, Child Marriage Prohibition Officer cum District Social Welfare Officer, Perambalur, CRL.R.C.No.1441 of 2012 and M.P.No.1 of 2012,[Judgment dated 03.03.2015] Hon’ble Madras High Court observed, “The childhood of a person is precious. On the child attaining the age of majority, anything may be given to it like the job, house, husband/wife; but what cannot be got back is its precious childhood. What is therefore of paramount importance is that the child should fully enjoy his/her childhood before entering the wedlock. More often than not, it is the girl's happy childhood that would ensure a happy wifehood and happy motherhood. In whatever form it is, the child marriage is a gross violation of human rights of a girl or boy.'… In the instant case what is claimed is a right to practice that which the personal law allows i.e., marriage of Muslim girl upon attaining puberty, on the premise that it has obtained legislative sanction under the Shariat Act, 1937. Rightly, such right is not claimed as a matter of religious faith. The practice would run counter to the social objective of the provisions of the Prohibition of Child Marriage Act, 2006 aimed to prevent the evil practice of solemnization of child marriages in the country towards enhancing the health of child and the status of women. The Act is constitutionally Valid:- In M. Mohamed Abbas vs. The Chief Secretary, Writ Petition (MD) No.3133 of 2015 [Judgment Dated: 31 March, 2015], Hon’ble Madras High Court held that the main issue involved in the writ petition relates to the validity and the legal bar of marriage being performed for any muslim girl below the age of 18 years, in view of Prohibition of Child Marriage Act, 2006. The object of the Prohibition of Child Marriage Act, 2006, as stated in the Act is to enhance the health of children and the status of women in the society, hence, marriage should not be performed below the age of 18 years for a girl child. Considering the maturity of mind required for the bride and the bride groom in understanding their marital life, their health factor and also their right to have proper education and empowerment, the age limit has been fixed for a girl as 18 years… While deciding the age factor of a girl and boy, who are bride and bridegroom in a marriage, the Court cannot ignore the laudable object of the Act, which considers mainly the welfare of the bride and bridegroom. …The provisions of Prohibition of Child Marriage Act, 2006 are in no way against the religious rights guaranteed under Articles 25 and 29 of the Constitution of India. In fact, the same is in favour of all the girl children in getting proper education and empowerment and equal status as that of men in the Society, as guaranteed under Articles 14, 15, 16 and 21 of the Constitution. (NIHAL CHAND ARORA, DEPUTY SECRETARY, RAJASTHAN STATE LEGAL SERVICES AUTHORITY, RAJASTHAN HIGH COURT, JAIPUR)

World[edit]

UNICEF defines child marriage as a formal marriage or informal union before 18 years of age.[13] UN Women has proposed that child marriage be defined as a forced marriage because they believe children under age 18 are incapable of giving a legally valid consent.[14]

Statistics[edit]

Child marriage rate estimates vary significantly between sources, with some based on small local survey samples. The table below provides some of child marriage estimates for India along with the nature of data collection.

Source % Females married
(< 18)
Data Year Sampling method Reference
ICRW 47 1998 small sample survey [1]
UN 30 1999 small sample survey [2]
NFHS-3 44.5 1998-2002 small sample survey [15][16]
Census of India 43.4 1981 Nationwide census [17]
Census of India 35.3 1991 Nationwide census [17]
Census of India 14.4 2001 Nationwide census [3]
Census of India 3.7 2011 Nationwide census [18]

The small sample surveys have different methods of estimating overall child marriages in India, some using multi-year basis data. For example, NFHS-3 data for 2005 mentioned in above table, used a survey of women aged 20–24, where they were asked if they were married before they were 18.[15] The NFHS-3 also surveyed older women, up to the age of 49, asking the same question. The survey found that many more 40-49 were married before they turned 18, than 20-24 age women who were interviewed. In 1970s, the minimum legal age of marriage, in India, for women was 15.[7]

The states with highest observed marriage rates for under-18 girls in 2009, according to a Registrar General of India report, were Jharkhand (14.1%), West Bengal (13.6%), Bihar (9.3%), Uttar Pradesh (8.9%) and Assam (8.8%).[4] According to this report, despite sharp reductions in child marriage rates since 1991, still 7% of women passing the age of 18 in India were married as of 2009. UNICEF India has played a significant role in highlighting the Indian child marriage rate prevalence data from its 1990s study.

According to 2011 nationwide census of India, the average age of marriage for women in India is 21.2.[19][20] In the age group 15-19, 69.6% of all women surveyed in India had never been married.[21]

Laws against child marriage[edit]

The Child Marriage Restraint Act of 1929[edit]

The Child Marriage Restraint Act, also called the Sarda Act,[22] was a law to restrict the practice of child marriage. It was enacted on 1 April 1930, extended across the whole nation, with the exceptions of some princely states like Hyderabad and Jammu and Kashmir, and applied to every Indian citizen. Its goal was to eliminate the dangers placed on young girls who could not handle the stress of married life and avoid early deaths. This Act defined a male child as 21 years (originally 18) or younger, a female child as 18 years (originally 14) or younger, and a minor as a child of either sex 18 years or younger (originally 14). The punishment for a male between 18 and 21 years marrying a child became imprisonment of up to 15 days, a fine of 1,000 rupees, or both. The punishment for a male above 21 years of age became imprisonment of up to three months and a possible fine. The punishment for anyone who performed or directed a child marriage ceremony became imprisonment of up to three months and a possible fine, unless he could prove the marriage he performed was not a child marriage. The punishment for a parent or guardian of a child taking place in the marriage became imprisonment of up to three months or a possible fine.[23] It was amended in 1940 and 1978 to continue raising the ages of male and female children.[22]

The Prohibition of Child Marriage Act, 2006[edit]

In response to the plea (Writ Petition (C) 212/2003) of the Forum for Fact-finding Documentation and Advocacy at the Supreme Court, the Government of India brought the Prohibition of Child Marriage Act (PCMA) in 2006, and it came into effect on 1 November 2007 to address and fix the shortcomings of the Child Marriage Restraint Act.[24] The change in name was meant to reflect the prevention and prohibition of child marriage, rather than restraining it.[22][24] The previous Act also made it difficult and time consuming to act against child marriages and did not focus on authorities as possible figures for preventing the marriages.[24] This Act kept the ages of adult males and females the same but made some significant changes to further protect the children. Boys and girls forced into child marriages as minors have the option of voiding their marriage up to two years after reaching adulthood, and in certain circumstances, marriages of minors can be null and void before they reach adulthood. All valuables, money, and gifts must be returned if the marriage is nullified, and the girl must be provided with a place of residency until she marries or becomes an adult. Children born from child marriages are considered legitimate, and the courts are expected to give parental custody with the children's best interests in mind. Any male over 18 years of age who enters into a marriage with a minor or anyone who directs or conducts a child marriage ceremony can be punished with up to two years of imprisonment or a fine.[25]

Applicability[edit]

Muslim organizations of India have long argued[9][26] that Indian laws, passed by its parliament, such as the 2006 child marriage law do not apply to Muslims, because marriage is a personal law subject.[6][8] The Delhi High Court, as well as other state high courts of India, have disagreed. The Delhi Court, for example, ruled that Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs each and every citizen of India[27] The ruling stated that an under-age marriage, where either the man or woman is over 16 years old, would not be a void marriage but voidable one, which would become valid if no steps are taken by such court as has option[s] to order otherwise. In case either of the parties is less than 18 years old, the marriage is void, given the age of consent is 18 in India, sex with minors under the age of 18 is a statutory crime under Section 376 of Indian Penal Code.[27]

Various other High courts in India - including the Gujarat High Court,[28] the Karnataka High Court[29] and the Madras High Court[30] - have ruled that the act prevails over any personal law (including Muslim personal law).

Legal Action on Legal Confusion[edit]

There is a standing legal confusion as to Marital Rape within prohibited Child Marriages in India. Marital rape per se is not a crime in India; but the position with regard to children is confusing. While the exception under the criminal law (section 375, Indian Penal Code, 1860) applicable to adults puts an exception and allows marital rape of a girl child between the age of 15–18 years by her husband; another new and progressive legislation Protection of Children from Sexual Offences Act, 2012 disallows any such sexual relationships and puts such crimes with marriages as an aggravated offense. A Public Interest Litigation filled by Independent Thought - www.ithought.in an organization working on child rights law, is being heard in the Hon'ble Supreme Court of India for declaring the exception allowing marital rape within prohibited child marriages as unconstitutional; Independent Thought vs. Union of India [W.P(civil) 382 of 2013].

CEDAW[edit]

The Convention on the Elimination of All Forms of Discrimination Against Women, commonly known as CEDAW, is an international bill attempting to end discrimination against women. Article 16, Marriage and Family Life, states that all women, as well as men, have the right to choose their spouse, to have the same responsibilities, and to decide on how many children and the spacing between them. This convention states that child marriage should not have a legal effect, all action must be taken to enforce a minimum age, and that all marriages must be put into an official registry.[31] India signed the convention on 30 July 1980 but made the declaration that, because of the nation's size and population, it's impractical to have a registration of marriages.[32]

Origin and causes of child marriage[edit]

The origin of child marriages is a controversial subject. In Manusmriti, a father is considered to have wronged his daughter if he fails to marry her before puberty. He has no further right to her. The daughter may take steps to seek a husband if she is not married within three years of reaching maturity. Medhātithi's Bhashya states the most suitable age for marriage of a girl is eight-years-old, this can also be deduced from Manusmriti. According to the Tolkāppiyam, a boy must be married before he is sixteen-years-old and a girl before she is twelve. The Greek historian Megasthenes though talks about early puberty of girls in South India.[33]

A New York Times report and some scholars say the Gujjars and similar groups trace the origin of child marriages in India to the Muslim invasions that began more than 1,000 years ago. Per the legend, invaders raped unmarried Hindu girls or carried them off as booty, prompting Hindu communities to marry off their daughters almost from brith to protect them.[34][35][36] Others suggest child marriages were common everywhere in the world before the 19th century.[37]

Parents of a child entering into a child marriage are often poor and use the marriage as a way to make her future better, especially in areas with little economic opportunities.[38]

Poor educational opportunities for girls, especially in rural areas, increase girls’ vulnerability to child marriage. When girls aren’t in school, marriage is often considered the next best alternative for them but in reality, marrying girls traps them in cycles of poverty and insecurity[39].

Dowry is a practice in India where the bride's family transfers wealth to the groom; in many cases, it is a demand and condition of marriage from the groom's family. Dowry is found among all religious faiths in India, and the amount of dowry demanded and given by the bride's family has been correlated to the age of girl. Nagi,[40] in 1993, suggested that the practice of dowry creates a fear and pressure to avoid late marriages, and encourages early marriage.

Poverty in India has been cited as a cause of early marriages. Child marriages of girls is a way out of desperate economic conditions, and way to reduce the expenses of a poor family.[41][42]

In some parts of India, the existence of personal laws for Muslims are a cause of child marriages. For example, in Kerala, 3400 girls of 13-18 age were married in 2012 in the district of Malappuram. Of these, 2800 were Muslim (82%). Efforts to stop this practice with law enforcement have been protested and challenged in courts by Indian Union Muslim League and other Islamic organizations, with the petition that setting a minimum age for marriage of Muslim girls challenges their religious rights.[8]

Consequences of child marriage[edit]

Early maternal deaths[edit]

Girls who marry earlier in life are less likely to be informed about reproductive issues,[43] and because of this, pregnancy-related deaths are known to be the leading cause of mortality among married girls between 15 and 19 years of age.[44] These girls are twice more likely to die in childbirth than girls between 20 and 24 years of age.[45] Girls younger than 15 years of age are 5 times more likely to die in childbirth.[46][47]

Infant health[edit]

Infants born to mothers under the age of 18 are 60% more likely to die in their first year than to mothers over the age of 19. If the children survive, they are more likely to suffer from low birth weight, malnutrition, and late physical and cognitive development.[13][47]

Fertility outcomes[edit]

A study conducted in India by the International Institute for Population Sciences and Macro International in 2005 and 2006 showed high fertility, low fertility control, and poor fertility outcomes data within child marriages. 90.8% of young married women reported no use of a contraceptive prior to having their first child. 23.9% reported having a child within the first year of marriage. 17.3% reported having three or more children over the course of the marriage. 23% reported a rapid repeat childbirth, and 15.2% reported an unwanted pregnancy. 15.3% reported a pregnancy termination (stillbirths, miscarriages or abortions).[48] Fertility rates are higher in slums than in urban areas.[49]

Violence[edit]

Young girls in a child marriage are more likely to experience domestic violence in their marriages as opposed to older women. A study conducted in India by the International Centre for Research on Women showed that girls married before 18 years of age are twice as likely to be beaten, slapped, or threatened by their husbands[46] and three times more likely to experience sexual violence.[50] Young brides often show symptoms of sexual abuse and post-traumatic stress.[46]

Prevention programmes in India[edit]

Apni Beti, Apna Dhan (ABAD), which translates to "My daughter, My wealth," is one of India's first conditional cash transfer programmes dedicated to delaying young marriages across the nation. In 1994, the Indian government implemented this programme in the state of Haryana. On the birth of a mother's first, second, or third child, they are set to receive 500, or US$11 within the first 15 days to cover their post-delivery needs. Along with this, the government gives 2,500, or US$55, to invest in a long-term savings bond in the daughter's name, which can be later cashed for 25,000, or US$550, after her 18 birthday. She can only receive the money if she is not married. Anju Malhotra, an expert on child marriage and adolescent girls said of this programme, "No other conditional cash transfer has this focus of delaying marriage... It's an incentive to encourage parents to value their daughters."[10]

The International Centre for Research on Women will evaluate Apni Beti, Apna Dhan over the course of the year 2012, when the program's initial participants turn 18, to see if the programme, particularly the cash incentive, has motivated parents to delay their daughters' marriages. "We have evidence that conditional cash transfer programmes are very effective in keeping girls in school and getting them immunised, but we don’t yet have proof that this strategy works for preventing marriage," said Pranita Achyut, the program manager for Apni Beti, Apna Dhan. "If Haryana state’s approach proves to be valuable, it could potentially be scaled up to make a significant difference in many more girls' lives – and not only in India".[10]

See also[edit]

References[edit]

  1. ^ a b "Child Marriage Facts and Figures". 
  2. ^ a b "United Nations Statistics Division - Demographic and Social Statistics". 
  3. ^ a b Table C-2 Marital Status by Age and Sex Subtable C0402, India Total Females Married by Age Group, 2001 Census of India, Government of India (2009)
  4. ^ a b c d K. Sinha Nearly 50% fall in brides married below 18 The Times of India (February 10, 2012)
  5. ^ R Gopakumar, Child marriages high in Kerala Deccan Herald (June 19, 2013)
  6. ^ a b c d e f g Hilary Amster, Child marriage in India University of San Francisco (2009)
  7. ^ a b c Child Marriage in India: Achievements, Gaps and Challenges OHCHR, United Nations
  8. ^ a b c d e M.G. Radhakrishnan and J. Binduraj, In a league of their own India Today (July 5, 2013)
  9. ^ a b Muzaffar Ali Sajjad And Ors. vs State Of Andhra Pradesh on 9 November, 2001 Andhra Pradesh High Court, India
  10. ^ a b c "Child Marriage Facts and Figures". International Center for Research on Women. 
  11. ^ The Child Marriage Restraint Act, 1929 British India
  12. ^ The Prohibition of Child Marriage Act of 2006 The Gazette of India, Ministry of Law and Justice, Government of India (January 11, 2007)
  13. ^ a b "Child marriage". UNICEF. 22 October 2014. 
  14. ^ "Definition of forced and child marriage". UN Women. 2012. 
  15. ^ a b A Handbook of Statistical Indicators of Indian Women Ministry of Women and Child Welfare, Govt of India (2007)
  16. ^ Raj, A.; Saggurti, N.; Balaiah, D.; Silverman, J. G. (2009). "Prevalence of child marriage and its effect on fertility and fertility-control outcomes of young women in India: a cross-sectional, observational study". The Lancet. 373 (9678): 1883–1889. PMC 2759702Freely accessible. PMID 19278721. doi:10.1016/s0140-6736(09)60246-4. 
  17. ^ a b Jasodhara Bagchi et al., The Changing Status of Women in West Bengal, 1970-2000: The Challenge Ahead, SAGE Publications, ISBN 978-0761932420, Table 1.10, page 29, rows for India totals
  18. ^ Percentage of Female by age at effective marriage and by residence India and bigger States, 2011 Chapter 2, Population Composition, Table Statement 12, India totals for < 18, 2011 Census of India, Government of India (2013), page 26
  19. ^ Mean age at effective marriage of Female by residence India and bigger States, 2011 Chapter 2, Population Composition, Table Statement 13, India totals for All ages, 2011 Census of India, Government of India (2013), page 27
  20. ^ Women and men in India 2012 Archived 12 October 2013 at the Wayback Machine. CSO/Census India 2011, Government of India, See page xxi, Highlights item 5
  21. ^ National Family Health Survey - India, International Institute for Population Sciences and Government of India (2009), see Table 6.1
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  26. ^ Mrs. Tahra Begum vs State Of Delhi & Ors. on 9 May, 2012 Archive of Legal Proceedings, Delhi High Court, India
  27. ^ a b 2012 [Volume No. 3] JCC [Journal of Criminal Cases] Page No. 2148
  28. ^ "Prohibition of Child Marriage Act to prevail over personal laws: HC". The Indian Express. 25 September 2015. 
  29. ^ "Child Marriage Act overrides Muslim Personal Law: Karnataka high court". The Times of India. 
  30. ^ "Madras HC says anti-child marriage act prevails over Muslim Personal Law". dna. 1 April 2015. 
  31. ^ "CEDAW 29th Session 30 June to 25 July 2003". 
  32. ^ "UNTC". 
  33. ^ Allan Dahlaquist. Megasthenes and Indian Religion: A Study in Motives and Types. Motilal Banarsidass. pp. 113, 114. 
  34. ^ Though Illegal, Child Marriage Is Popular in Part of India, The New York Times (May 11, 1998)
  35. ^ H Ralston (1991), Religious Movements and the Status of Women in India, Social Compass, vol. 38, no. 1, pages 43-53
  36. ^ Sophie Tharakan and Michael Tharakan (1975), Status of women in India: a historical perspective, Social Scientist, Vol. 4, No. 4/5, pages 115-123
  37. ^ Abgeliki Laiou (1993), Coercion to sex and marriage in ancient and medieval societies, Washington, DC, pages 85-190
  38. ^ Sanyukta, M.; M. Greene and A. Malhotra (2003), Too Young to Wed: The Lives, Rights, and Health of Young Married Girls, ICRW, Washington D.C.
  39. ^ "Child Marriage In India - Everything You Should Know To Stop This Evil!". www.jodilogik.com. Retrieved 2017-09-01. 
  40. ^ B Nagi, Child Marriage in India: A Study of Its Differential Patterns in Rajasthan, ISBN 978-8170994602
  41. ^ Child Marriage and Poverty ICRW
  42. ^ Targeting Girls in the Name of Tradition: Child Marriage Melanne Verveer, Ambassador-at-Large for Global Women's Issues, US Department of State, (July 15, 2010)
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  45. ^ "Early marriage: A childhood interrupted". UNICEF. 
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  48. ^ Raj, A; Saggurti, N; Balaiah, D; Silverman, JG (2009). "Prevalence of child marriage and its effect on fertility and fertility-control outcomes of young women in India: a cross-sectional, observational study". Lancet. 373: 1883–9. PMC 2759702Freely accessible. PMID 19278721. doi:10.1016/S0140-6736(09)60246-4. 
  49. ^ Chandrasekhar, S (2010). "Factors Affecting Age and Marriage and Age at First Birth in India". Journal of Quantitative Economics: 86. 
  50. ^ United States Agency for International Development, 2007, "New Insights on Preventing Child Marriage: A Global Analysis of Factors and Programs," pg. 9