This article is written by Simran Kaur Bilkhu, a Law Student of Balaji Law College,Pune University during her internship with LeDroit India.
Introduction
In this conservative and making female a submissive soul starts right from when she is in her puberty. Many aspects come into consideration when talking about a female which mainly includes Marriage. In Indian Ancient culture has a history in child marriage and the concepts behind having an early marriage. Elders believe that girls who get married early; their parents have to give less dowry, comparatively than the girls aged more. According to them, girls are considered as a financial burden and having a girl child brings a risk of sexual violence and a lot of male attention.
Therefore, want them to get married as early as possible. This is how the whole idea of Child Marriage takes a turn. Indian laws and customs have come into a conflict over the past decades. Child Marriage has been declared illegal according to the provisions of The Prohibition of Child Marriage Act, 2006 (PCMA). This law brings in provisions for prohibition of marriage of a girl under the age of 18 and a boy under the age of 21.
Child Marriage
A marriage which is solemnized in infringement with the authorized age of marriage stated by the General Laws. A minimum age of marriage is prescribed which is 18 for Girls and 21 for Boys by the Child Marriage Act, 2006 earlier known as Child Marriage (Restraint) Act, 1929. This age is basically described by International Covenants such as The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and Convention on the Rights of Children (CRC). In India, Child Marriage can be solemnised as per the personal respective laws and to be precise there is no law in relation to the “solemnisation” of a child marriage.
Issues Concerning to Child Marriage
The two basic and the most important issue pertaining to child marriage being:
- Health-related issues: A Study conducted by UNICEF in 2001 on Early marriage and Child Spouse concluded that the risk of premature labour that is the maternal mortality amongst girls aged15-19 have about three times higher, mother under the age of 18 have higher risk to child mortality and never the less the young girl mothers lack parenting skills with none decision making powers.
- Human Rights issue: Child Abuse is the first issue that is faced by young girls after their early marriage as child marriage denies the basic human rights to the spouse especially the girl child. It is a fit case of child abuse by the LCI 205 Report on Child Marriage, 2008 which. Mostly the girl child has Health, Education and well-being issues. The UN Children’s Report on Early Marriage states that a harmful traditional practise has shown that the highest rate of Domestic Violence among the women married by 18 is higher as compared to the ordinary marriages.
- Specific Gender Dimension: It is considered that the girl child is the most unfortified person in a child marriage due to child birth, rearing, bearing, domestic violence and lack of parenting skills. The girl child is also restrained from the basic education especially in India, where the son is somehow always preferred over the girl child.
Abstract of the Act
Initially before this PCMA, 2006 there was The Child Marriage Restraint Act, 1929 which was brought into the laws that didn’t work well and lost its way due to reasons; bringing in that it had a provision in itself, that no complaint could be brought into notice unless one year of marriage, also that the officers required a warrant from the magistrate to arrest the offender.
But as Prohibition of Childs Marriage Act, 2006 was introduced, the old problems were covered but the culture of child marriage is still persistent. In a consultation held in 2019, the remark came that the reasons behind the not working of the Act was due to lack of awareness between the people about the laws existing. There are loopholes in the Act that have not been reported in the case.
This firstly, includes the Burden on the Child for Challenging a Validation. In this both the partners, the child bride and groom can file a petition on their personal basis to nullify the marriage. If the partners are minor i.e. below age of 18 for a girl and below age of 21 for a boy, should take the help of their guardian or next best friend who should be above the age of 18, with the help of Child Marriage Prohibition Officer (CMPO). In this case it doesn’t help either, as the family members force them and threaten to not obligate them.
Secondly, Officers Not Punished for Negligence of Duty. Here the CMPO helps the child while it is always difficult for them to approach the CMPO, and while they do the officer does things in his control. They usually take the signature of their parents on an undertaking statement which clearly mentions that there will be no force used against them for nullifying the marriage. Then they are sent back home, which further leads to the same parental force. After all this, the CMPO also registers a complaint with the Domestic Violence Act Department which again redirected them to the CMPO. Plus the lack of registration of complaints makes the job of the officer more restricted. While in these same cases in other departments the CMPO is punished so that he further performs his duty to the fullest, there are no punishments here for the officer which leads in failing the department.
Thirdly, Registration has not been made Compulsory. Thus, leading into many unreported cases that don’t come into the consideration of the CMPO.
In the 2017 case of Independent Thought vs. UOI it was laid down that women dealing with sexual abuse by his husband also which included the child marriage situations where in the girl is forced to have sexual intercourse, described as Rape by the court. The man who does this in a child marriage is held under IPC, Juvenile Justice Act (JJA), 2000. Women in this child marriage further put a stop to their marriage even if they willfully took this marriage.
Lastly, Inconsistency with Personal Laws. Here there is a hindrance of personal laws in the PCMA, which still allows child marriages. This leads to inefficiently working of the PCMA even after making efficient laws.
For Example: Muslim Laws allow marriage when the kids hit puberty which is at age 15 that violates the PCMA. In Haryana and Punjab HC this case Mohd. Samim vs. State of Haryana and Ors. It was held that such laws are not illegal and do not impact PCMA. Whereas in Gujarat High Court it was stated that Muslims do not over power PCMA and marriage that is done below the age of 18 is illegal and punishable under PCMA.
The Prohibition of Child Marriage Act, 2006
The present law is gender neutral in providing to both the boy and the girl child who are forced into the marriage and is viewed as General and Secular legislation (that is applicable to all the citizens of India), Penal legislations, Social and Progressive legislation, Matrimonial legislation that is only to regulate child marriage having a uniform application.
The Act is aiming to:
- To punish the ones involved in the production of child marriage, and
- To also provide legal possibility to both the spouses of child marriage to forswear that said marriage, by the way of a decree of nullity (void and voidable).
The Matrimonial Gradient of The Prohibition of Child Marriage Act, 2006
In any situation child marriage is not something that has been declared invalid. But one thing that very specifically been stated is that of the legal validity of marriage in India. There are some provisions of this Act which may be taken into consideration as far as the legal validity of a child marriage is concerned. The said Act has rules relating to the maintenance and the legitimacy of the child of these child marriages.
The section 3 of the Act is voidable marriage, which states that the child marriage is voidable at the option of both the parties and then the petition may be filed two years before attaining the age of majority, before the District Court.
Although the status of child marriage as per Section 12 of The Prevention of Child Marriage Act, 2006 is considered as void marriage. The circumstances under which a child marriage is a void marriage is when:
- The minor is taken or allured out of the keeping of the lawful guardian; or
- The minor is sold for the purpose of marriage; or was made to go through a forceful marriage procedure after which the minor was sold or trafficked or may be used for an immoral purpose; or
- The minor by force was compelled, or by any mendacious means was induced to go from any place, such marriage shall be null and void.
The Prohibition of Child Marriage Act, 2006 also provides Section 4 and Section 5 for the maintenance and legitimacy of the girl child that is thus born out of child marriage. Section 4 specifically states that the district court may make maintenance, residence, and custody of the child order during petition in favour of the female spouse until her remarriage. Section 5 on the other hand states that the child born of such a marriage is deemed to be a legitimate child.
Personal Law and Child Marriages
There are certain personal laws about child marriage that we need to put an eye on:
- Child Marriage in Hindu Marriage Act, 1955
Child Marriage in the said Act is neither void nor voidable. The silence thus on the part of legislature in Section 11 and 12 are express rule in the form of provision of Section 13(2) (iv), renders it as valid. As a result to which there is silence on the part of the legislature in Section 5, 11, and 12. A provision from Hindu Marriage Act, a child marriage is valid by Section 18.
In Neetu Singh vs. the State & Ors. The High Court of Delhi held that the marriage of a minor is nether void or voidable, but is Punishable.
In the said Act the child marriage by way of decree of nullity. It was stated in the case of Sushila Gothalal v. State also directed that the State should take necessary steps to stop the menace of child marriage by punishing all involved in such marriages. To which a special appeal was made to the people of the state to prevent child marriages. Nonetheless, a female child has been given right to repudiate the marriage u/s Section 13 (2) (4), by the way of divorce.
In Roop Narayan Verma v.Union of India, the HC upheld the constitution validity of the mentioned sections of the Hindu Marriage Act. By terming the exercises of power by the legislature under Article 15 (3) of the Indian Constitution.
- Child Marriage in Muslim Personal Law
The capacity in which a muslim can get married is of being: a. sound mind b. majority age.
To be specific of what majority in muslim personal law means is being the age of 15, but the Privy Council in Nawab Shadiq Ali Khan v. Jaya Kishori stated that the majority age of a girl is 9 whereas Heyda Law states that the earliest period for a boy is 12 and for a girl is 9.
The marriage of a Muslim is effectuated when the Muslim is below the age of 9 of the girl and 12 of the boy and is a minor. The marriage of a minor, may only be solemnized with the consent of the guardian.
Law Commission of India, 205 Report on Child Marriage, 2008
The Law Commission of India Report in 2005 recommend a list of things to follow:
- The child marriage below the age stated that is 18 years for both the boys and girls should be prohibited.
- The marriage below the age of 16 to be made void and while those between 16 and 18 to be made void.
- The provisions relating to maintenance and custody should apply to both be void and voidable
- Registration of marriage be made compulsory
The Prohibition of Child Marriage (Amendment ) Bill, 2021
The Prohibition of Child Marriage Amendment Bill 2021 seeks to amend the “ Prohibition of Child Marriage Act, 2006 “ which comprises of total 31 members, including only one women representative. The Bill seeks to raise the legal age of marriage for women in India from 18 to 21 to bring it to par with men.
Conclusion
Child marriage affects the basic right of the children that are being forced to get married and the girl in particular, as it affects the reproductive health. At a very young age they are forced to get married and get sexually engaged. The problem is basically in child marriage where there is more infant mortality rate than anywhere else. Plus forcing children who are young enough to study causes stress and prematurity in them at such an early age, which hampers their mental health. Women whereas suffer more stress than men due to the treatment they get after getting married, the humiliation, overload of household work, abuse from all the family members , sexual assault. The elementary problem of sexual abuse of children is detrimental and prevents society from protecting their children. The laws and the authorities must be kept in check. Land makers and law enforces must address the former vital important aspects in relation to children in need to be kept safe from all the social evil.
