“Every Indian is a citizen of the country first and thereafter only he becomes a member of the religion. When the Act 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion.” (Para 23)

Thus, through this judgment, the bench of Justice P. V. Kunhikrishnan held that a person’s primary standing as a citizen of the nation supersedes their religious beliefs. The Court declared that religion comes second and citizenship first. The Court so observed that the Prohibition of Child Marriage Act applies to as well as binds all citizens, irrespective of their religious affiliation—Hindu, Muslim, Christian, Parsi, or any other.

In the said 37-paged judgment of the Court, the bench also mentioned to the psychological impact that marriage has on the child, impacting their education, career and lives, making child brides are more vulnerable to domestic violence and abuse. As per the judgement, marrying a child invoking religious texts and norms denies the child the enjoyment of their basic and fundamental rights. The judgment further emphasised upon the duty of every citizen to see that there is no child marriage.

Background of the case:

An FIR had been filed against the petitioners on the complaint made by Integrated Child Development Scheme Officer (ICDS Officer), Vadakkencherry to the Circle Inspector of Police, Vadakkencherry, in which it had been mentioned that a child marriage happened within the jurisdiction of ICDS Alathur Additional on December 30, 2012. The FIR had been registered at the Vadakkencherry Police Station alleging offences punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006.

As per the FIR, the 1^st accused had conducted the marriage of his minor daughter with the 2^nd accused as per the religious tenets and rites in Islam. Accused Nos. 3 and 4 are the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee. The 5th accused is the witness who signed the record regarding the conduct of the marriage. As per the FIR, all the accused were guilty of committing an offence under Sections 10 and 11 of the Prohibition Act.

The present case had reached the Kerala High Court as the petitioners urged the Court to quash proceedings against them for allegedly committing the offence of child marriage punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act.

Arguments submitted to the Court:

By the petitioners (accused in the FIR) – The petitioners put forth two major arguments. Their first submission was that under Islamic law, a Muslim girl has the ‘Khiyar-ul-bulugh’ or ‘Option of Puberty,’ granting her the right to marry upon reaching puberty, typically at 15 years old. They claimed that the marriage of a minor girl is not considered void, it is voidable at her discretion once she attains puberty. It is stated that Muslim personal law prevails over the Prohibition of Child Marriage Act, and any marriages solemnised before or after the said Act is voidable only at the option of the married girl. Therefore, it is contended that a Muslim girl, who has attained puberty, that is 15 years, could marry and such a marriage would not be a void marriage.

The other argument raised by the petitioners was that the birth date of the minor girl in question had been incorrectly noted by the school authorities. Since the parents of the girl were illiterate and came from a very remote and economically backward village, the mistake was not rectified. It was submitted by the petitioners that the 1^st petitioner’s wife delivered his daughter on November 27, 1994, however, the child did not join the school at an appropriate age. Based on the abovementioned circumstances, the petitioners stated that the girl was admitted to the primary school by giving an incorrect date of birth by the school authorities, and therefore, the wrong entry of the date of birth in the school records occurred.

Lastly, the petitioners also highlighted the issue of there being a delay in filing the complaint, which showed that the same was filed with malafide intention. Based on these submissions, the petitioners urged the Court to quash the case against the petitioners.

By the Amicus Curiae- The Amicus Curiae filed a paper book containing the relevant provisions and also all the decisions of different courts, including the Apex Court on this issue of child marriage permitted under personal laws. The crux of the submission of the Amicus Curiae is that when the Act 2006 is in force, the same will override the personal law of the parties. The Public Prosecutor had also supported the argument of the Amicus Curiae and submitted that there is nothing to interfere with the final report.

Observations of the Court:

The bench discussed the objective and provisions of the Prohibition of Child Marriage Act in detail. Including the important provisions from the 2006 Act, the bench highlighted that the special legislation was brought in response to the mounting calls for strengthening the provisions of the erstwhile Child Marriage Restraint Act 1929 by making it more effective and for making the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriage in the country.

The bench highlighted that as per Section 1(2) of the Act, the application of the said legislation extends to all citizens of India without and beyond India. Based on this, the bench provided that that the 2006 Act has extra territorial jurisdiction and is applicable to Indian citizens living abroad, regardless of their location. As per the bench, this further clarified that the Act is also applicable to all citizens irrespective of their religion.

“Section 1 (2) of Act 2006 says that, it extends to the whole of India and it applies also to all citizens of India without and beyond India. From the above provision itself it is clear that if a person is a citizen of India, Act 2006 is applicable irrespective of his religion, whether he is a Hindu, Muslim, Parsi, Christian etc. Therefore, from Section 1(2) of Act 2006, it is clear that it extends to the whole of India and it applies also to all citizens of India without and beyond India.” (Para 9)

The Court noted that every citizen, non-governmental organization etc. must inform the Child Marriage Prohibition Officer or Court about any information regarding child marriage.

“So, it is the duty of every citizen of the State to inform the Child Marriage Prohibition Officer if information is received about any child marriage in the State. The citizens of the State should be alert about the above provision and the Child Marriage Prohibition Officers also should be vigilant about their duties and powers as per Act 2006 and Rules 2008.” (Para 15)

The bench further noted that the special law specifies that Judicial Magistrates of the First Class or Metropolitan Magistrates can issue injunctions to prevent child marriages and, under Section 13 of the Act, have suo-moto powers to act on such complaints/information. The Court urged Magistrates to be alert about their powers to take suo moto cognizance on being informed about child marriages.

“Therefore, if any reliable report or information is received about a child marriage, it is the duty of the Judicial Magistrate of First Class/the Metropolitan Magistrate to suo motu take cognizance based on such reliable report or information. There are other procedures also mentioned in Section 13. Therefore, I am of the considered opinion that, all the Magistrate in the State should be vigilant to take cognizance, if any reliable report or information is received about any child marriage.” (Para 18)

The bench additionally pointed to the important role that that print and visual Media can play in spreading awareness regarding the evil of child marriage as well as the laws that exist in India that prohibit child marriages in the country. As per the bench, it is the duty of the print and visual media to publish articles highlighting the evils of child marriage, sharing stories of survivors and victims, creating awareness about the loss and consequences of child marriage, promoting education and empowerment of girls and exposing perpetrators and their actions.

“The visual media should also broadcast documentaries and shows on child marriage, creating public service announcements and awareness campaigns, depicting the negative consequences of child marriage in movies and TV shows, interviewing experts, survivors and activists. The print and visual media should be a platform for voices against child marriage, encouraging public discourse and debate, supporting and amplifying initiatives working towards eradicating child marriage, holding those in power accountable for enforcing laws and policies, educating the public about the physical, emotional and psychological harm caused by child marriage etc.” (Para 19)

Coming to the contentions raised by the petitioners in the present case through which the petitioners have provided that since the personal law of Muslims permits every Mohammedan of sound mind who has attained puberty to enter into a contract of marriage, the provisions of Act 2006 does not apply to Muslims, the Court said that even Mohammedans are not exempted from the applicability of Act 2006.

“I am of the considered opinion that, the provisions of Act 2006, which was subsequently enacted, is applicable to Muslims also as far as child marriage is concerned. This is because of the importance of Act 2006 and also because it is a special Act enacted with a great object. It is true that the Principles of Mahomedan Law by Mulla says that, every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. But, as I observed earlier, every Indian is a citizen of the country first and thereafter only he becomes a member of the religion.” (Para 23)

The bench also clarified that the Prohibition of Child Marriage Act would also override the provisions of the Majority Act of 1875. This is because Section 2 of the Majority Act stipulates that the Act does not affect a person’s capacity to act in matters such as marriage, dower, divorce, adoption, and it also specifies that it does not apply to the religion or religious rites of Indian citizens.

In Para 27 of the judgment, the bench went on to state that it is in disagreement with the decisions of the Patna High Court in Md. Idris v. State of Bihar and Others (1980), Punjab and Haryana High Court in Kammu v. State of Haryana (2010), Delhi High Court in Tahra Begum v. State Of Delhi & Ors. (2012) which held that a Muslim girl can marry upon reaching puberty and that such marriages are not considered void.

In regards to the argument raised by the petitioner on the wrong age of the Muslim girl being mentioned in the school register, the bench provided that the Court cannot accept that version of the petitioners and quash the proceedings at this stage as this is a matter of evidence.

“The petitioners are free to adduce evidence on that before the trial court at the appropriate stage and the court concerned will consider the same in accordance with law based on the evidence adduced by the petitioners.” (Para 28)

The third contention raised by the petitioners was that there was a 1½ years’ delay in filing the complaint after the marriage. Upon this, the bench noted that while it was true that there was some delay in filing the complaint, the bench cannot ignore the purpose of Act 2006 which is to eradicate child marriage. Thus, when a citizen, that also a person belonging to Muslim community, submits a complaint stating that there is a child marriage in his religion, the Court cannot reject the same saying that there is a delay in submitting the complaint. With this, the bench rejected the third contention raised by the petitioner.

The bench underlined the detrimental effects of child marriage, pointing out that it violates fundamental human rights and results in the exploitation of minors. It stated that early marriage and pregnancy create health problems for victims of child marriage. The bench further highlighted that child marriage restricts girls’ access to the workforce, forces them to drop out of school, and keeps them in poverty. It was said that child brides are susceptible to emotional and psychological harm from domestic abuse. The bench continued by saying in its judgment that it is the responsibility of every citizen to stop child marriages.

“Let the children study according to their wishes. Let them travel, let them enjoy life and when they attained maturity, let them decide about their marriage. In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, of course with the blessings of their parents.”

Decision of the Court:

Based on the observations made by the bench as provided herein above, the bench rejected the contentions of the petitioner that their minor daughter can marry upon attaining puberty since she is a Muslim. Accordingly, the Court dismissed the case and stated that the petitioners had not made a case to quash the proceedings.

The complete judgment can be read below:

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The post Kerala HC reiterates that every Indian citizen, regardless of their religion, is bound to adhere to the law prohibiting child marriage appeared first on SabrangIndia.

 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.

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The post The laws against child marriage exist but are not enough appeared first on SabrangIndia.

This expression of Rakhmabai in 1885 is inscribed in the hearts of women and reflects even today. Child marriage, a deeply embedded societal norm, exemplifies severe gender inequality and prejudice, natively an interplay between social and economic reasons it is an alarming global concern and at its core is a string of human rights violation in continuum.

11 states contributed more than 85% of the cases of last decade

The concept of child marriage retains its hold on Indian society, with neither “education” or “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 NCRB data. According to the recent National Crime Records Bureau (NCRB) data of 2020, a total of 785 cases were registered under the Prohibition of Child Marriage Act. The number of cases registered under the Prohibition of Child Marriage Act in 2018 was 501, in 2017 was 395, in 2016 was 326 and in 2015 was 293.

Of the total 3,604 cases registered under the PCM act between 2011 & 2020, 17.2% of the cases were registered in Karnataka alone. With 621 cases registered in the state, the number of cases registered in Karnataka exceeds the total number of cases registered across the country in 2019.

With 514 registered cases, West Bengal accounted for 14.3% of the cases during the ten-year period. Tamil Nadu (480 cases) and Assam (441 cases) accounted for 13.3% and 12.2% of the cases respectively. Together, the four states alone contributed to 57% of the cases registered across the country during 2011 & 2020. Maharashtra, Telangana, Andhra Pradesh, Haryana, Gujarat, Kerala, and Odisha registered more than 100 cases each during this period and together accounted for 26.8% of the cases. Altogether, these 11 states contributed to nearly 87% of all the cases in the last decade.

Each of the five south Indian states registered more than 100 cases each. A total of 1,575 cases were registered in the southern states that accounted for nearly 44% of the cases registered at the national level.  No cases were registered in five (Arunachal Pradesh, Manipur, Mizoram, Nagaland, and Sikkim) out of the total 8 north-eastern states. One case was registered in Meghalaya, 11 cases in Tripura, and 441 cases were registered in Assam during the ten-year period. In other words, 97.4% of the cases registered in the north-east were from Assam alone, while Tripura and Meghalaya accounted 2.4% and 0.2% respectively.

The article below explores the untenability of the custom and the urgent need for institutional attention and reform

The peaking number of child marriage cases in India despite the existence of Child Marriage Restraint Act, necessitated it to implement a new and effective legislation to hinder the evil practise by introducing intense change in the way of dealing with the cause. Hence, the Prohibition of Child Marriage Act was enacted in 2006 by the Indian Parliament with the objective of curbing the instances of child marriage in India but the achievement of this act in terms of fulfilling its aim has always been a topic for debate.

The tradition of child marriage had been practiced in India from time immemorial and is righteously viewed as bringing prosperity to the family, protecting, and securing the lives of children, moreover it is viewed as an instrument for evading social stigma, ensuring safety of the girl child and an object to maintain the sexual purity. It is celebrated and labelled as sacred and divine. The practice precipitated misery upon the couple hailing intensely in the long run especially upon the females who were subjected to rough forceful coitus at a tender age.

Child marriage destroys the childhood of the child tampering with their right to health, education, privacy, protection and much more. It affects both the genders in the apt fabricated stereotypical way, for a boy it is an economic obligation and for the girl it is a household obligation in the normal course of events, though there are indicators of decline in the child marriage cases but the bulk of population engaged in such practices is a matter of grave concern demanding serious fortified actions.

Hypotheses

Research asserts that the deficiency in the halt and efficiency in the alarming rate of the child marriage is an outcome of the loopholes in the existent laws to curb the same. It is a product of regressive social norms existing in a still conservative society and is deeply etched in the patriarchal mindset of people. The way of implementation of the laws provides yet another scope for flouting it.

Definition of a child   

According to Article 1 of the United Nations Convention on the Rights of the Child, “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”. ²

 Owing to the diversity of statutes, India has multiple meanings of a child. Under the Indian Majority Act, “Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before”. ³ For this research we are considering the definition of a child as defined under the Prohibition of Child Marriage Act, 2006⁴, which considers a male below the age of 21 years and a female below the age of 18 years as a child.

Definition of child marriage 

According to the universal norms of the United Nations International Children’s Emergency Fund a child marriage is one which is formally or informally solemnised between parties both or either of which are below the age of 18 years.⁵  The Prohibition of Child Marriage Act, 2006 insisted on minimum permissible age for marriage for boys as 21 and for girls as 18 and any marriage solemnised in contravention to this age requirement would be coined as ‘child marriage’⁶ not necessarily both of them must be below the intended age but even if a single party were below this age that would suffice the condition of child marriage.

Stark Statistics

The development of Indians in terms of education, lifestyle, social values, etc. has not been a deterrence in this arena, besides this the statistics indicate an unfortunate deviation.

Ostensibly making an appearance of decline this widespread practice is nowhere close to elimination. The UNICEF’s estimate claim that every year around 1.5 million girls under the age of 18 years get married which makes India the home to maximum number of child brides.

According to NFHS⁷ 5⁸, the situation is much worse in rural India, which accounts for 27% of child marriages, while in urban India, underage marriage accounted for 14.7% of marriages. According to the data, 6.8 percent of females aged 15 to 19 were either pregnant or had already reproduced at the time of the study, a small decrease was though recorded from 7.9 percent between 2015 and 2016 in the rural geography. West Bengal, Bihar, and Tripura account for 40% of the child marriages. The positive achievements in this field are too little and too late to be celebrated. Ostensibly making an appearance of decline this widespread practice is nowhere close to elimination.

Roots and Repercussions

The root of this practice lies in the ideals established by the patriarchal society. In India, the general notation where a daughter is counted as a liability and son as an asset marrying off the girl is even equated synonymous to fulfilment of responsibility. The word responsibility, though small it may appear on paper overweighs education, desire, needs, aspiration, health, and uncountable many factors relating to girl in pragmatic reality.

Further there is a strong emphasis on the virginity of brides before marriage and therefore it acts as an instrument for hormonal control satisfying retrograde social standards. Poverty is undoubtedly the most dominant cause leading to child marriage and many a times the younger siblings are married along with the elder on to save funds.

The practice of dowry is yet another social ill that encourages the practice of child marriage. In a society where “well-educated and competent” men desire larger amounts of dowry, impoverished parents, simply to evade excessive dowry and execute the responsibility of marrying daughters, often marry young girls to incompetent partners. Marriage is unfortunately presumed to provide stability and safety to women and fearing the mounting crimes against girls and women, parents find it easier and “safe” to marry them off and do away with their duty. The irony behind this being that rather than focusing on making the girl child/ young woman independent, a conservative society ensures every step possible to make her dependent on the other gender in the misguided understanding that this is necessary for her own advantage.

The repercussions of child marriage adversely affect both genders and impacts various spheres of their, social, cultural, educational life.

The Right to a Safe and Secure Childhood is lost: child marriage destroys childhood compelling both partners to act as adults in the normal course of events undertaking responsibility and standard gender roles.

Right to Education is lost: Barely do educated people support child marriage and those who do are majorly the ones having a patriarchal mindset who believe in confining the girl child to the boundaries of household chores, and for the boy’s marriage offers distraction affecting their education.

Right to Health is lost: there is a high probability of coitus at an immature age subjecting them to ill effects on body such as early pregnancy and exposing them to range of physical ailments.

Right to Autonomy is Lost: privacy, independence, overall development is done for by this evil.

Domestic Violence and Abuse: it is the most common outcome of this practice that hardly requires an elaboration, forceful sexual intercourse at a tender age, physical, mental, and economic abuse are the basic characteristics of it. 

Categorisation of child marriage

Indian law is clear when it categorises and classifies child marriages into void, voidable and valid. Indian social perspective categorises it into two branches. A couple of lines from the verdict in the case of Jitender Kumar Sharma v. State⁹, can be quoted for a better understanding of the same.

“We would like to point out that the expression “child marriage” is a compendious one. It includes not only those marriages where parents force their children and particularly their daughters to get married at very young ages but also those marriages which are contracted by the minor or minors themselves without the consent of their parents. Are both these kinds of marriages to be treated alike? In the former kind, the parents’ consent but not the minor who is forced into matrimony whereas in the latter kind of marriage the minor of his or her own accord enters into matrimony, either by running away from home or by keeping the alliance secret…”

The first type is where the parents are the driving force behind the marriage and the children are either not mature enough to understand the repercussions of the ceremony or sometimes despite understanding they are not able to evade it. Often, due of lack of courage to go against an enforced practice or due to social vulnerabilities when they may be against it but their verbal protests are subdued by their own family members and they are pushed into marriages.

The second type is where the children themselves opt for marriage, with or without the consent of the parent. The former kind is clearly a scourge as it shuts out the development of children and is an affront to their individualities, personalities, dignity and, most of all, life, and liberty. The working of the Prohibition of Child Marriage Act, 2006 along with the personal laws has been quite clear and in most of the cases the former being a special social legislation prevails over personal laws and has an overriding effect. In the case of Abdul Khader vs K. Pechiammal court observed³¹

 “It is manifestly clear that this Act is secular in nature which has crossed all barriers of personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are prohibited….”

The Delhi High Court ruled in a 2012 decision, Mrs. Tahra Begum V. State of Delhi & Ors. ³², that the ‘choice of puberty’ or khiyar-ul-bulugh must apply in accordance with the PCMA. In this case, the minor girl was desirous of living with her husband instead of her parents. The court affirmed her agency and choice, despite her age and minority status.

The Delhi High Court in Jitender Kumar Sharma V. State³³ and Another, held that the PCMA is in fact a secular law and has an overriding effect over personal laws. Further, with respect to the application of section 12, the court read Sections 6 and 14 of the Hindu Minority and Guardianship Act and presented a tolerant view where it held that the girl is capable enough for deciding for herself and hence, cannot be forced into living with her parents or in a Nari Niketan.

The judiciary has been crystal clear with respect to the implementation of PCMA, 2006 when personal laws are involved and the above judgements make it all the way more evident that PCMA, 2006 finds an edge to the personal law and has superseding powers. The stand of the judiciary can be said to be very wise considering the religious atmosphere prevalent in the Indian society. Most of the child marriage are performed under personal laws and to curb the same having a special legislation that proceeds above them was a necessity.

The people need to understand that not all practices prevalent in society were meant for the upliftment of the people. With time some of them were needed to be changed. Child Marriage is one such practice that should be stopped at any cost. It might register protest, and many may think that their religion is tampered with but resentment can never overweigh the plight it could render on the young generation and there is a shimmering hope that with the passage child marriage will cease and the mindset of people advocating for this evil would change too.

To be continued, 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)

¹ https://scalar.lehigh.edu/…/infant-marriage-and-enforced-widowhood-rukhmabai-june-1885.

² Convention on the Rights of the Child [G.A. Resolution 44/25 of 20 November 1989].

³ Indian Majority Act, 1875, section 3(1).

⁴ Prohibition of Child Marriage Act, 2006, section 2(a).

⁵ https://data.unicef.org/topic/child-protection/child-marriage/.

⁶ Prohibition of child marriage act, 2006, section 2(b).

⁷ National Family Health Survey report published by ministry of Ministry of Health and Family Welfare.

⁸ https://india.unfpa.org/sites/default/files/pub-pdf/analytical_series_1_-_child_marriage_in_india_-

_insights_from_nfhs-5_final_0.pdf.

⁹ Jitender Kumar Sharma v. State, 2010 SCC Online Del 2705, Para 25

³¹ Abdul Khader vs K.Pechiammal, MANU/TN/0934/2015.

³² Tahra Begum v. State of Delhi, 2012 SCC Online Del 2714.

³³ Jitender Kumar Sharma v. State, 2010 SCC Online Del 2705.

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The post Unveiling the Harsh Truth of Child Marriage in India appeared first on SabrangIndia.

Minister of Women and Child Development, Smriti Irani, has stated in her answer in the Rajya Sabha that there is no information regarding data on increase in cases of child abuse due to the Covid-19 related lockdown situations.

In addition to this, the Minister said that according to the National Crime Records Bureau (NCRB), the Centre also has no data on the increase in child marriage cases across the country due to financial difficulties owing to Covid-19.

The Minister was also posed questions pertaining to the number of complaints registered with the Commission for Protection of Child Rights both at Centre and State level or suo moto taken up and inquiry completed during the last five years.

In her written answer dated July 22, Ms. Irani provided that the total number of complaints received by the Commission from 2016 to 2021 was 50,857. Out of these complaints, the Commission has managed to dispose of only 20,836 cases.

Among all States, the highest number of complaints have been received from Madhya Pradesh at 9,572 followed by Uttar Pradesh at 5,340, Chhattisgarh at 4,685 and Odisha at 4,276. Over the past 5 years, Bihar has also received a high number of complaints at 2,032, along with Gujarat at 1,663, Delhi at 1,730 and Jharkhand at 3,205.

Ladakh has recorded no cases. Lakshadweep has received 3 complaints and three have been disposed of. Kerala recorded the highest number of cases either registered by the Commission or taken up suo motu at a whopping 10,723. This was followed by Delhi at 9,897 cases and Tamil Nadu at 3,046. The Uttar Pradesh State Commission for Protection of Child Rights has provided data from 2018 to 2021, which states that the number of cases registered by the commission suo motu stood at 2,134.

On July 19, the Minister of Education had answered questions about how online education has been disrupted due to the Covid-19 lockdown. Bihar has suffered the worst in this category with 1,43,36,007 children without digital devices to access online education, followed by Jharkhand with 32,52,255 children deprived of an education due to the digital divide, and Karnataka with 31,31,098 students.

The answers may be read here:

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The post No data on increase in child abuse cases due to Covid-19 lockdown: Centre appeared first on SabrangIndia.