The path to child abuse opened by our civil laws

According to the Turkish Civil Code (TMK), any child who turns 16 can be allowed to marry if their family appeals to the family court for permission. In 2011 for instance, 20,000 families have gone to court demanding permission to marry their 16-year-old daughters.  

As a matter of fact, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Istanbul Convention, both of which we are a party to, do not allow early marriages.

International agreements have the force of law. Article 90 of the constitution, amended in 2004, says, “In case of contradiction between international agreements regarding basic rights and freedoms approved through proper procedure and domestic laws due to different provisions on the same issue, the provision of international agreements shall be considered.”

A law can be taken to the Constitutional Court on grounds that it is unconstitutional but international treaties cannot. In this sense, these agreements are even stronger than laws. In this case, we can say that the articles in the TMK about early marriage are against the constitution. 

Academic studies and researches have shown that early marriage damages the psychological and physical health of the child. Early pregnancy may result in death. Because the genital area of the child is not suitable for birth, the mortality rate during child birth is high. Even if the child is born, its mortality rate until the age of 5 is 70 percent higher than other children. 

Early marriage deprives the child of education. The child leaves or forced to leave school. Even though the child’s psychical and spiritual development is a constitutional right, a child who is married early is deprived of this self-development right. 

The married child is made to work at home and in the field; they are seen as human resources. 

Why does our civil code have a clause tolerating early marriage and why has this clause not been changed until now? 

General Coordinator of Çaçav, a network of lawyers defending children, Şahin Antakyalıoğlu has this answer: “It is because, in our country, neither legislators nor the justice regards this as abuse. They see it as a ‘tradition.’ Family courts do not demand the psycho-social examination report that reveals the child’s development.” As a matter of fact, no court, without this report, is able to know whether there is an abuse or negligence regarding the child. Without knowing this, it cannot understand whether a child wants to get married based on their free will.” 

For the child to appear in the court sessions and say “I want to get married” is not a declaration of intention by itself. The child could have been influenced, threatened or forced. 

The Gündem Children Association will make a first in Turkey. It has opened a case. They asked the case of the incident of the family that appealed for their child to be married (I wrote on this on March 26) and the case they opened about early marriage to be merged. 

They have asked the court to determine that the child’s rights were violated and prevent this. They asked the Constitutional Court to rule that early marriage is a violation of rights, thus the articles 124 and 128 allowing early marriage in our civil code should be annulled. 

The files have been merged. Now, the court will review the demands. 

Let us hope that this court does not regard the matter as “tradition” and proceed on the road to annul this violation of the rights of children and these laws that support child brides.