“This wicked practice of child marriage has destroyed the happiness of my life. It comes between me and the things which I prize above all others – study and mental cultivation”.1
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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