The laws against child marriage exist but are not enough

The concept of child marriage retains its hold on Indian society, with neither “education” nor “development” being an adequate deterrent. A staggering increase of about 50 per cent in the cases of child marriages has been recorded in 2020 over the previous year, according to recent data. This was Part 2 of this long researched paper carried on July 8, 2023.

 Evolution of laws on child marriage in India

In the late 19^th century, there was emerging opposition from the victim of this practice to mobilise and protest this prevalent social ill as it was contrary to basic human rights. Till the issue of child marriage gained any attention, neither was there any minimum age of marriage nor any point of distinction between “age of marriage” and “age of consent”.

The former refers to the age when the marriage was solemnised according to rights and rituals and the latter mirrors the age at the time of actual consummation of marriage. The effort bore fruit when “Age of Consent Act” was sanctioned in 1860 stipulating minimum age of consent to be 10 years however no minimum age of marriage was introduced.

The minimum age concept was followed by society and rendered its motive futile. The Phulmoni Dasi rape case ¹⁰of 1889 which involved the issue of child marriage and martial rape. This spoke volumes about glaring inequality of age in martial relationship.

The case of Rakhmabai in 1885¹¹ which was instrumental in the drafting of “Age of Consent Act 1891” stipulating minimum age of consent to be 12 years however no minimum age of marriage was introduced. The erstwhile state of Mysore enacted a law¹² in 1894 under which marriage of a girl below 18 to a man more than twice her age was punishable. Yet, again the age of consent was increased to 13 in 1925.

These stark incidents put the spotlight on the issue of child marriage victims, and for the first time, the Child Marriage Restriction Act (CMRA), 1929, was enacted after an intense push by women and men social reformers of that time who wanted the passage of special legislation on child marriage. This law emphasised on the age of marriage to be 14 for girls and 15 for boys.

In 1949, two years after Independence, the age for girls was set at 15 and for boys at 18 then finally in 1978 by a major amendment the age for girls and boys was altered to 18 and 21 respectively.

Though these appeared to be breakthroughs, their societal impact was not felt. The practice persisted unabated for almost 70-80 years after the statute was passed and owing to the vacancy of women in the legislative process, the system of child marriage grew stronger. Their distinct and sensitive needs were never recognised, as their participation in the legislative process was regarded irrelevant. Feminist legal criticism can be advanced to all levels of law formation as well as the legal study of child marriage.

The Hindu Marriage Act, 1955 introduced a passive optimistic change by making it a condition for a valid marriage¹³ that “the bridegroom should have completed 21 years of age and the bride must have completed 18 years of age.” The utter futility of the clause was that its violation invited no legal penalty but was inculcated for a social and decorative purpose only.

The uncodified Muslim personal law in India, being a step ahead, did away with the requirement of any certain age but rather links the age of marriage to the age of puberty. One can legitimately get married after being hit by puberty, this is a rather vague consideration as there is not standard age of puberty but in the general terminology, the age is taken as 15.  As an escape route which permits child marriage, it sanctions the concept of ‘khyar ul bulugh’ or the ‘option of puberty’ which is to  either ratify or revoke the child marriage after attaining the age of 18 provided the marriage was not consummated and can be exercised by both genders.

It was only the Special Marriage Act, 1954, which rendered a child marriage void¹⁴ altogether. The conflicting stand of the government while silently approving child marriage under personal laws but declaring the practice void under special marriage law was an indication that culture, tradition, and patriarchal stereotype overweighed science, ethics and social security in the union legislature.

India being largely a religious country most of the marriages are solemnised under personal laws and the special laws are majorly seen as option of the last resort and even at times an object to culminate marriages without parental permission. Marriages under the SMA are not widely recognised but more the exception.

Child rights activists and women’s rights groups achieved some measure of victory when the Prohibition of Child Marriage Act, 2006 was passed. This was under the UPA-I government.

With this legislation, changes sought under the CMRA were adopted. According to the CMRA, child weddings declared were neither void nor voidable. They have been declared voidable¹⁵ in the PCMA at the discretion of the party who was a child at the time of marriage. The practice has been declared void under certain circumstances¹⁶.

This implies that girls and boys who married as children were vested with the right to petition  the court to get their marriage dissolved. The Act also raised the penalty to up to two years of rigorous incarceration or a fine of up to one lakh rupees, or both¹⁷. The new act did not aim   at doing away with child marriage altogether but rather categorised it and opened avenues for new debates.

Prohibition of Child Marriage Act (PCMA), 2006: a critique

The Prohibition of child marriage act, 2006 grandly promulgated with great pomp and show claiming to eradicate the evil concept subtly supplements its predecessors and is a sneaking validation of this idea makes me to argue on the following questions.

• Why does Prohibition of Child Marriage Act, 2006 render child marriage voidable and not void in the normal course of events?
• Why is Prohibition of Child Marriage Act, 2006 gender biased at certain loci?
• How does the Prohibition of Child Marriage Act, 2006 get along with personal laws?

Under section 3 (i) of PCMA, 2006 a child marriage is rendered voidable at the will of the party who was a child at the time of marriage.

The plea for the same can be registered with the competent court any time before the party who was a child completes two years of attaining majority.

Section 3(ii) If the petitioner is a minor, at the time of filing of the petition, it may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.

The paradox of the entire act lies in its very fundamental, in the benevolent facade of criticising the evil practice of child marriage explicitly it does not altogether render it void but rather voidable in the normal course of events. Clearly, it can be commented that the act is elementarily inefficient, aiming at curbing the social evil without explicitly acknowledging it to be a social evil is just a glittery delusion to evade reality, presenting itself as a social legislation it fails to accost the issue socially. It is insensitive to the real situation and gives no considerations to the plight it inflicts owing to its inefficiency. In a leading case¹⁸ the court observed that¹⁹:

“In other words, a voidable marriage is not invalid. But, at the same time, it cannot be construed stricto sensu that it is a valid marriage as per the classification referred to above. In our considered opinion, so far as the victim of the voidable marriage at whose option the marriage can be annulled is concerned, all rights emanating from a valid marriage will ensure in favour of her / him. But, so far as the other spouse is concerned, the said marriage shall confer only limited rights upon him/her…..”

The irony of the situation lies in the introduction of the concept of child marriage by this act, by this it deems to accept the peril of the social evil and admits that it not evil enough to be scrapped altogether.

In a 2017 Supreme Court Judgement (Independent Thought vs Union of India) a bench of justices M.B. Lokur and Deepak Gupta called it “strange” for the PCMA not to declare child marriage void, while prohibiting and criminalising it.

The court observed²⁰:

“The legislature even made the child marriage a punishable offence by incorporating provision for prosecution and imprisonment of certain persons. At the same time, except in certain circumstances contemplating under Section 12 of the Act, the marriage is treated as voidable. The interplay of this Act with other enactments compounds this anomaly…”

A very popular argument advanced to bolster the concept of voidability is that criminalising and making it entirely illicit under ordinary circumstances will threaten many marriages and will complicate matrimonial relationships, further a social evil like this will eradicate by itself over a period. Drawing a corollary to the same situation, bigamy was also practised in India but with changing times and developing laws it was discarded from the Hindu men rights, also the concept of Triple Talaq was abolished recently in the Shayara Bano case²¹, these instances indicate that to curb a social wrong it must be terminated rather than introducing an option for termination according to personal choice because something which is hazardous should not be allowed to percolate.

The act blatantly fails to consider the fact that child marriage is more prevalent amongst the lower socio-economic strata of the Indian population, where the various factors apart from the immediate become the  justification to solemnise a child marriage disregarding any considerations for health, education, etc. Most of the time the parents convince their children emotionally to get married which end up devastating their lives, now had this been illegal or simply void, fearing the insecure future of the couple especially the girl child the cases would have had reduced immensely. Besides, girls being married off at such an early age mostly lack courage and education to speak up for themselves and many of the times aren’t even acquainted with the fact of having a legal recourse.

The most erroneous and challenging dilemma created by voidability is categorisation of child marriages, the former and the more prevailing one where parents force their children to marry prior to the requisite age, it is criticized at every echelon by the vocalist society but the latter category when children themselves opt for marriage without consent of parents it is at times labelled as the right to love which is wrong because child marriage as a concept is not just a moral wrong but it is a social, physical, educational and vocational wrong whose definition remains unchanged by fitting it into different stencils.

In the case of Amninder Kaur v State of Punjab²² the court declared the marriage as void concluding that the girl who was a minor at the time of marriage was enticed and observed²³

“This Court is flooded with the petitions filed by runaway couples in which the girls, who have just attained the majority, are filing petitions seeking protection for life and liberty allegedly threatened by their parents, who could be seen wailing helplessly and haplessly chasing their daughters in the corridors of this Court, who out of infatuation, are marrying young boys who could hardly provide them any future….”

The judicial stand however has been fluctuating while dealing with elopement cases according to the circumstances and merits of the case, all this is just an outcome of the term voidability because the court is bound to be reasonable and prudent and not read the law literally but pragmatically, for instance in the case of Kawalijeet Kaur v State of Punjab²⁴ the court has observed:

“It is the bounden duty of the State as per the Constitutional obligations casted upon it to protect the life and liberty of every citizen. Right to human life is to be treated on much higher pedestal, regardless of a citizen being minor or a major. The mere fact that petitioner No.2 is not of marriageable age in the present case would not deprive the petitioners of their fundamental right as envisaged in Constitution of India, being citizens of India….”

In yet another judgement²⁵ the court reiterated the need to reconsider and modify the existing laws on child marriages otherwise this so-called practice of social security and surety will ripen into social segregation. The court remarked²⁶:

“The sooner the legislature examines these issues and comes out with a comprehensive and realistic solution, the better, or else courts will be flooded with habeas corpus petitions and judges would be left to deal with broken hearts, weeping daughters, devastated parents and petrified young husbands running for their lives chased by serious criminal cases, when their “sin” is that they fell in love….”

The judiciary has always been critical of the way in which PCMA aims at tackling child marriage and has expressed disenchantment at times.

In another leading judgement²⁷ the court made a sceptical remark about the intention of the government with respect to child marriage:

“It is quite clear from the above that Parliament is not in favour of child marriages per se but is somewhat ambivalent about it. However, Parliament recognizes that although a child marriage is a criminal activity, the reality of life in India is that traditional child marriages do take place and as the studies (referred to above) reveal, it is a harmful practice. Strangely, while prohibiting a child marriage and criminalizing it, a child marriage has not been declared void and what is worse, sexual intercourse within a child marriage is not rape under

the IPC even though it is a punishable offence under the Protection of Children from Sexual Offences Act, 2012. Protection of Children from Sexual Offences Act, 2012 (POCSO)….”

The concept of voidability gives child marriages a subjective tone rather than an objective one, the legislature by this concept seems to accept the violation of human rights and fails miserably to remedy from this disaster which the inefficiency of the state showers upon people. There is an urgent need to reconsider and amend the provisions of this act to buttress the motives of it.

The second segment of this critical analysis focuses on some provisions of the act which explicitly and vocally advocate the stereotypical mindset which is again a product of patriarchal norms and beliefs. The first and the foremost gender differentiation of the act lies in its very foundation as it prescribes a higher marriage age for boys but lower for girls which clearly reflects discrimination, and reason for the same lies in the social bifurcation of gender roles, where men being the economical unit require more time to complete education and mature to maintain a family and women being associated to the household chores mature early which barely does synchronise with the prevailing circumstances as of now.

In the case of Hardev Singh vs Harpreet Kaur²⁸ the Supreme Court pitched:

“although both men and women are deemed to have attained majority at eighteen years of age under other laws, a differential metric has been adopted for the purposes of defining child marriage. A higher age is prescribed for men, based on the prevailing societal notions that the age of eighteen years is insufficient for a boy to attain the desired level of education and economic independence, and that an age gap ought to be maintained between the groom and the bride……”

A comprehensive examination of the bare act revealed some more gender-bigoted elements. For example, Section 9 of the legislation specifies a penalty for a male adult marrying a child.— Anyone, who is a male adult over the age of eighteen, enters into a child marriage is penalised by rigorous imprisonment for up to two years or a fine of up to one lakh rupees, or both., again Section 11 of the act which talks about the punishment for promoting or permitting solemnisation of child marriages entirely discounts women from any kind of imprisonment. Although, there is a strong reasoning behind such provisions as delineated in a Supreme Court case inferring²⁹:

“Thus, it can be inferred that the intention behind punishing only male adults contracting child marriages is to protect minor young girls from the negative consequences thereof by creating a deterrent effect for prospective grooms who, by virtue of being above eighteen years of age are deemed to have the capacity to opt out of such marriages….”

Though there may be strong moral justification behind the same which is pragmatically true but with the world changing apace this doesn’t seem to fit in anymore and beside judicial scrutiny it requires a legislative amendment. In the above judgement the apex court pronounced a verdict stating that the act does not punish a male between the age range of eighteen to twenty-one for marrying an adult female, this torched light upon the subtle incompetency and necessity of the act, the court observed³⁰:

“The 2006 Act does not make any provision for punishing a female adult who marries a male child. Hence, a literal interpretation of the above provisions of the 2006 Act would mean that if a male aged between the years of eighteen and twenty-one contracts marriage with a female above eighteen years of age, the female adult would not be punished, but it is the male who would be punished for contracting a child marriage, though he himself is a child….”

Preventive measures

There have been a sequence of efforts and attempts to curb the occurrence of child marriage but to end a social evil we need to empower the basic building block of the society that is an individual, innumerable legislation and social drives would be a sheer wastage if the mindset of the society does not change, it is not the laws which bring the change but the people who bring an optimistic change, a legislation is a mere reflection of the society it comes from, the demerits symbolise the limitations of outlook because it is the people who make law and an inverse is unfeasible. Individual actions to prevent child marriages entails:

• Inform the appropriate authorities about any child marriages that occur in your
• Educate your friends, family, and community about the dangers of child
• Take a vow to never participate in any event that encourages child

The crucial government measures aiming at prevention of this social upheaval encompasses the following³⁴.

• The Ministry of Women and Child Development runs the ‘Beti Bachao Beti Padhao (BBBP)’ scheme, which educates women and society at large on gender equality and the negative consequences of child
• The Government of India, in collaboration with police and others has launched CHILDLINE with the short code 1098, a 24X7 telephone emergency outreach service for children in crisis that responds with appropriate interventions to calls for any form of assistance that a child requires, including child marriage
• To deal with the issue of child marriages, The National Commission for the Protection of Child Rights (NCPCR) runs a variety of programmes in collaboration with relevant parties such as Child Welfare Committees (CWC), police, the Women and Child Development Department, and civil society organisations.

The United Nations Children’s Fund (UNICEF)³⁵ is partnering with India to prevent child marriages and assist the victims. They encourage social change through empowering teenagers and enhancing aid for victims of abuse in their rehabilitation. In 2016, UNICEF and the United Nations Population Fund (UNFPA) launched the Global Plan to End Child Marriage. Since 2016, the campaign has reached nearly 14 million adolescent females with life-skills training, comprehensive sexuality education, and school attendance support. UNICEF³⁶ assisted the ‘Beti Bachao Beti Padhao (BBBP)’ initiative in expanding its coverage from 16 to 80 districts, allowing 5.4 million girls and 2.4 million boys to receive access to information, gender-responsive services, and life skill programmes.

These policies will only be effective if there is societal push for change at the individual and community levels. But in the India of 2023, no matter how worrying the statistics are, is it a surprise that child marriage (which are on the increase) is not a priority?

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

– Nelson Mandela

An egalitarian society can be envisioned only when children in India are treated equally. There must be a transition from a superficial feeling of equality to one that is genuine and unwavering. Every single child marriage is a threat to true equality and must thus be avoided.

The trajectory of this study began with the introduction of the topic of child marriage to then position the study within the legal and rights framework. It moved into a discussion of the statistics in India and the laws floating around it. It winds up at suggestions of preventive measures and polices.

Child marriage is a social evil that can harm a female child’s life and health wreaking havoc in her life, as they are unable to endure the stresses and strains of marriage, and it leads to the premature death of such minor mothers. It also showcases the Indian society’s misogynistic attitude.

This menace is depicted in the following lines from a song sung during marriages in Rajasthan³⁷:

“Choti si umariya main parnanaya o babosa, kain main tharoo kario kusoor”

 “Oh father why had you given me off in the marriage at such a tender age, for what sin did I commit.” 

“These lines itself symbolize the mixed pain of leaving the father‟s house and at the same time the anguish as to why was she being married off at such a tender age. Such situation is unprecedented and the inner pain unimaginable. The word „Child Marriage‟ is itself contradictory in itself as one would wonder how marriage and child could go together.”

The severity associated with this violation of human rights is trivial. Law enforcement agencies are unmotivated to take action on this issue. This is visible from the number of cases formally recorded under the Act each year. The obvious disparity between the number of unions and the number of recorded cases³⁸ is the brutal reality.

An article³⁹ published in a newspaper revealed that a study conducted by Kailash Satyarthi Children’s Foundation concluded that the conviction rate in child marriage cases in India is “extremely poor” at 10%, at least 96% such cases were pending trial across the country by the end of 2021. This is alarming because with the growing population the inequality shoots which reinforced with such negligent controllable factors would result in rising cases of child wedlock’s, with no fright of accountability it will prosper more.

The more daunting fact is the extent to which this evil has its root despite people being acquainted with the fact that it is legally wrong and even punishable.

In one case the court observed⁴⁰

“Sociologists even argue that for variety of reasons, child marriages are prevalent in many parts of this country and the reality is more complex than what it seems to be. The surprising thing is that almost all communities where this practice is prevalent are well aware of the fact that marrying child is illegal, nay, it is even punishable under the law. NGOs as well as the Government agencies have been working for decades to root out this evil. Yet, the reality is that the evil continues to survive….” 

Social and biological hazards of child marriage are paramount which demand stringent and coinciding laws to deal with it the drawbacks must be considered in the light of changing social circumstances and suitable alterations must be introduced for the desired effectiveness.

In yet another leading case the Supreme Court remarked⁴¹

“The social cost of a child marriage (and therefore of sexual intercourse with a girl child) is itself quite enormous and in the long run might not even be worth it. This is in addition to the economic cost to the country which would be obliged to take care of infants who might be malnourished and sickly; the young mother of the infant might also require medical assistance in most cases. All these costs eventually add up and apparently only for supporting a pernicious practice….”

I have analysed and studied this topic deeply and I humbly pour few suggestions of mine to evade and end this global social wrong.

• The loopholes in the PCMA, 2006 must be immediately discussed and
• In Seema v. Ashwani Kumar⁴², the Supreme Court imposed mandatory marriage registration and directed all state governments to implement laws or guidelines at the state level to enforce it. Although the judgement has been in effect for a decade, its execution is not uniform throughout the states. Each state government must investigate this to verify that every marriage is To ensure that marriages are formally recorded, a severe penalty or a penalty that discourages non-registration must be applied. Marriage registration might be allocated to one officer at the Panchayat level.
• The Children’s Right to Free and Compulsory Education Act of 2009 must be properly enforced. The obligatory education age should be raised to 18 years old in order to encourage girls to seek education.
• The government’s numerous programmes to reduce child marriage and postpone the age of marriage must reach the recipients on the ground. The same initiatives must be migrated to the Gram level. Information should be disseminated at the panchayat level and through Anganwadi
• The police and other enforcement authorities must be trained in the value of enhancing vigilance over the incidence of child marriages within their jurisdiction and pushing for the official registration of FIRs so that those responsible for promoting and holding a child marriage do not go
• The National Human Rights Commission (NHRC) should instruct state governments to maintain and submit an annual report on the state’s status of child
• The Central Government must properly allocate funds to states to facilitate programmes to discourage child marriages. In exchange for it, a record of the utilization must be delivered.

The issue of child marriage requires attention and coordinated action. Every single child marriage draws a dispute into the freedom and equality values enshrined in the Constitution of India. It is therefore vital that we make all required efforts and change current structures to explore what can be practically achieved on the ground to build an India free of child marriages.

Concluded Part 2, Evolution of Child Marriage Laws in India, first published in Legal Lock Journal but has been edited here)

(The author is an intern with cjp.org.in)

¹⁰ https://en.wikipedia.org/wiki/Phulmoni_Dasi_rape_case.

¹¹ https://blog.forumias.com/rakhmabai-case-of-1884/.

¹² Mysore Infant Marriage Prevention Act, 1894.

¹³ The Hindu Marriage Act, 1955, section 5 (iii).

¹⁴ Special Marriage Act, 1954, section 24 (i).

¹⁵ Prohibition of child marriage act, 2006, section 3.

¹⁶ Prohibition of child marriage act, 2006, section 12.

¹⁷ Prohibition of child marriage act, 2006, section

¹⁸ T.Sivakumar vs The Inspector Of Police, AIR 2012 Mad 62 FB.

¹⁹ T.Sivakumar vs The Inspector Of Police, , AIR 2012 Mad 62 FB, Para 24.

²⁰ Independent Thought v. Union of India, (2017) 10 SCC 800.

²¹ Shayara Bano v. Union of India, (2017) 9 SCC 1.

²² Amninder Kaur v State of Punjab, MANU/PH/1115/2009.

²³ Amninder Kaur v State of Punjab, MANU/PH/1115/2009, Para 1.

²⁴ Kawalijeet Kaur v State of Punjab, AIR 2019 P&H 148.

²⁵ Jitender Kumar Sharma v. State, 2010 SCC OnLine Del 2705.

²⁶ Jitender Kumar Sharma v. State, 2010 SCC OnLine Del 2705, Para 26.

²⁷ Independent Thought v. Union of India, (2017) 10 SCC 800.

²⁸ Hardev Singh v. Harpreet Kaur, (2020) 19 SCC 504, Para 7.6.

²⁹ Hardev Singh v. Harpreet Kaur, (2020) 19 SCC 504, Para 7.8.

³⁰ Hardev Singh v. Harpreet Kaur, (2020) 19 SCC 504, Para 7.2.

³⁴https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1796829#:~:text=The%20Government%20has%20ena

cted%20the,connected%20therewith%20or%20incidental%20thereto.

³⁵ https://data.unicef.org/topic/child-protection/child-marriage/.

³⁶ https://www.unicef.org/protection/child-marriage.

³⁷ Court On its own Motion (Lajja Devi) v State & Ors, 2012 SCC OnLine Del 3937.

³⁸ NCRB Data on child marriage.

³⁹ https://www.hindustantimes.com/cities/chandigarh-news/96-child-marriage-cases-pending-trial-across-india- by-2021-rights-body-101664912525692.html.

⁴⁰ Court On its own Motion (Lajja Devi) v State & Ors, 2012 SCC OnLine Del 3937.

⁴¹ Independent Thought v. Union of India, (2017) 10 SCC 800.

⁴² Seema v. Ashwani Kumar, (2008) 1 SCC 180.

Related:

The reality of child marriage in India

25 million child marriages averted in the past decade: UNICEF

Increase in child marriages, a side effect of Lockdown?