Child Marriage Act: Examining the Extent of its Adequacy

Child Marriage is one of Indias most burning issues. Child marriage gets explained as a marriage between two people when the female is under 18, and the male is under 21.

Even though our country has had a law prohibiting child marriages for the past 90 years, child marriages are still a reality. According to statistics, child marriages account for 27% of all marriages in India.

Child marriage has been practised in India, with children married off before reaching physical and mental maturity. In India, the problem of child marriage is still rooted in a complex web of religious traditions, social practices, economic factors, and deeply ingrained prejudices.

Regardless of its origins, child marriage is a heinous violation of human rights and akin to child abuse. Moreover, pregnancy and childbirth at a young age can result in maternal and infant mortality. Furthermore, women who marry when they are younger are more likely to experience domestic violence in the home.

According to a recent UNICEF report, India has the world’s second-highest rate of child marriage, with 43 per cent of Indian women married before the age of 18.

Another study found that young women who married before 18 were twice as likely compared to the girls who married later to be beaten, slapped, or threatened by their husbands. They were also three times more likely to have been forced into sexual intercourse without their consent in the preceding six months.

TYPES OF MARRIAGES IN INDIA

Marriage in India is one of the universal social institutions that human society has established and nurtured. It gets inextricably linked to the institution of the family.

Per Gillin and Gillin,“Marriage is a socially sanctioned way of establishing a family of procreation”.

The current legal age of marriage in India is 21 for males and 18 for females. The types of marriages are as under:

Polygyny

Polygyny is a marriage type in which one man marries multiple women at the same time. In ancient civilisations, this was a common practice. At the moment, it might be still in practice in primitive tribes such as the Baigas and Gonds of India.

Polyandry

Polyandry is the marriage of a single woman to multiple men. It gets practised by the Bahama of Africa and Samoa tribes. Still, it’s prevalent in India among the Tiyan, Toda, Kota, Khasa, and Ladakhi Bota tribes.

Monogamy

Its a marriage type in which only one man marries the woman. It is the most common type of marriage found in societies all over the world. Hindus commonly practise it the most.

Group marriages

The marriage of two or more women with two or more men gets referred to as group marriage. Here the husbands are common, and wives are common wives. Children get considered to be the children of the entire group.

EVOLUTION OF CHILD MARRIAGE IN INDIA

Law and order were not universal in the mediaeval ages, and arbitrary powers concentrated in a hierarchy led by a despotic monarch.

The Sultans of Delhi, who held the position of despotic monarch in India, came from a different culture. During their reign, the practice of child marriage and sati got perpetuated.

The presence of young unmarried girls was a potential invitation to disaster amid the sense of insecurity. Even the female birth in the family was regarded as a bad omen, and killing a baby girl by drowning them in a tub of milk was common.

Considering the birth of a female child to be a bad omen and even killing newly born baby girls by drowning them in a tub of milk.

The strong desire to preserve a girl’s purity to uphold the family’s honour is a significant factor contributing to early marriage. A girl’s virginity and chastity are her most prized possessions.

The overemphasis placed on chastity paved the way for society to devise various methods and measures, such as isolating girls from social interaction and early marriage, to protect girls from potential sexual abuse.

Along with this primary reason, a few other factors arose from the nature of feudal society that contributed to the prevalence of this practice. In a feudal society, qualities such as rivalry, personal honour, hereditary friendship, or enmity have high values.

According to the Law Commission, the main reasons for child marriage are poverty, culture, patriarchal traditions and values.

However, one cannot ignore the crippling effect that child marriages have on the overall development of the child, mainly the girl, as her exposure to sex and its related issues has a negative impact on her health.

Legislative History of Child marriage in India

Sarda Act, 1929

On February 1, 1927, Rai Saheb Harbilas Sarda introduced a Bill to prohibit the solemnisation of child marriages among Hindus by declaring such marriages illegal. He first introduced the bill in this regard in the Central Legislative Assembly.

The central legislature in 1929 passed the Sarda Act, which took effect in British India on April 1, 1930.

The Act defined “child” as “a person, if male, under the age of eighteen and, if female, under fourteen”. The Act characterised every person under the age of eighteen, male or female, as a “minor”. Every marriage “in which either of the contracting parties is a child” would be considered a “child marriage” per the Act.

The Act made every “child marriage” an offence for which the following people would get punished:

1. Anyone who contracted a child marriage, if not under the age of eighteen;
2. Any lawful guardian of minor who permitted or did not prevent the child marriage.
3. Anyone who intentionally conducted child marriage.

The persons between 18-21 were only to get punished with a fine and no imprisonment.

Child Marriage Restrain Act, 1929 (CMRA)

The Act got enacted to bring about social reform by reducing the social evil of child marriage, and it applied to all citizens of India, regardless of religion.

The act defined child marriage as one in which the girl is under the age of 14 or the boy is under 18, regardless of the parties religion.

To discourage such marriages, the Act imposed an Rs. 1000 fine on a man between the ages of 18 and 21 who married a girl under 14. If the man in question was over 21, he faced a 30-day simple imprisonment sentence and/or Rs. 1000 fine. The parents of the girl and the person performing the marriage would be liable in the same way.

The act only aimed to prevent the solemnisation of child marriage but did not declare such marriages as void or voidable.

A subsequent amendment to the CMRA in 1949 raised the minimum age of parties and increased the penalties for violations.

The age for girls was raised to 15, while the age for boys remained at 18. A boy between 18 and 21 who marries a girl under 15 would face a 15-day Simple Imprisonment and Rs. 1000 fine under the enhanced punishment.

A man over 21 who commits the same offence shall face three months in simple imprisonment and an unspecified fine. The same penalty would apply to the girl’s parents, custodian or guardian, and the person performing the marriage.

The CMRA was amended again in 1978, raising partie’s ages to 18 for girls and 21 for boys. It corresponds to the current HMA minimum marriage age. The CMRA got repealed with the introduction of the PCMA in 2006.

The Prohibition of Child Marriage Act, 2006 (PCMA)

The act defined the term “child marriage” as a marriage in which either of the contracting parties is a “child”, with “child”, denoting a person who has not reached the age of 18 in the case of females and 21 in the case of males.

The Act got enacted with three goals in mind:

(1) to prevent child marriages,

(2) to protect the children involved, and

(3) to prosecute offenders.

Its ultimate goal was to eradicate from society the evil practice of child marriage.

The act provides that the marriage remains valid till a party choose for annulment.

Per Section 3 of the act, the child forced into marriage can appeal to the district court for the annulment through a guardian.

Punishment under The Prohibition of Child Marriage Act

Male contracting parties to the marriage over the age of 18 face imprisonment for up to two years or fines of up to one lakh rupees.

The same punishment gets prescribed for those who perform or intentionally conduct child marriages. Parents will get punished as well if they promote or allow child marriage. Women, on the other hand, are exempted from imprisonment under the Act.

Child marriages have been declared a cognisable and non-bailable offence under the act. The court has the power to issue an injunction either at the complaint of the party or suo-moto.

The act declared child marriages as voidable and not void-ab-initio

Karnataka is the only state which declares child marriages under the state as void.

Inconsistency in Provisions under The Prohibition of Child Marriage Act

Section 3

Section 3(1), which makes the marriage voidable at the option of the child party, is a step forward from the previous act.

However, Section 3(1) practical application is hampered by Section 3(3). According to the latter provision, a petition under Section 3(1) must get filed before the child completes two years of attaining majority. It implies that a petition must get filed before the person reaches the age of 20. Ordinarily, the term majority refers to the age of 18 years.

The definition of “child” under Section 2(a) of the Act, on the other hand, is as follows:”(a)’child’ means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age”.

The inconsistency created by reading these provisions together is apparent. A female ceases to be a child when she reaches the age of majority, which is 18 years.

A male between the ages of 18 and 21 is legally a major, but he is a child by statutory definition. Thus, a male of 20-and-a-half would get barred from filing a petition under Section 3(1) because two years would have passed since he attained the majority.

As a result, Section 3(3) creates a situation in which a person who is still statutorily a child cannot avoid the marriage, effectively defeating the Act’s entire purpose.

Section 9

Section 9 of the Act punishes a male adult over 18 who enters into a child marriage. And so will get punished up to two years in prison and/or a fine of up to Rs. one lakh.

Notably, no equivalent provision punishes a female adult party who enters into a child marriage. As a result, Section 9 has the effect of punishing only the adult male party under the PCMA.

INDIAN PENAL CODE, 1860 (IPC)

Section 375 of the IPC specifies the age of consent as 18 years, which clarifies that a girl under the age of 18 is incapable of consenting to sexual intercourse, thereby recognising the child’s vulnerability.

In the case of Independent Thought v. Union of India, the Supreme Court held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape.

According to the 205th Law Commission Report, all child marriages performed between the ages of 16 and 18 should be voidable at the request of the minor party, whereas all child marriages performed before the age of 16 should be void ab initio. The basis for recommendation entailed the fact that the age of consent was 16 at the time.

However, the Criminal Law (Amendment) Act of 2013 increased the consent age to 18 years.

PERSONAL LAWS INVOLVING CHILD MARRIAGE

Personal Laws are the laws that govern religious marriages and divorces in India.

Hindu Marriage Act, 1956

The Hindu Marriage Act of 1955 is a personal law that applies to most of India’s population, who are Hindus.

Section 5 of the Act deals with the conditions for a Hindu marriage. It states that for a valid Hindu marriage, the bridegroom must be twenty-one years old, and the bride must be eighteen years old, and a marriage that violates this section is either void or voidable.

According to Section 13(2)(iv) of the Hindu Marriage Act, the wife can seek divorce if her marriage was solemnised before she reached the age of fifteen years or before reaching the age of eighteen, regardless of whether she consummated her marriage or not.

The Muslim Law

According to Muslim law, any Muslim of sound mind who has reached puberty gets eligible to contract a marriage.

A marriage of a person under puberty must get solemnised by a guardian and is not void.

However, a minor can annul such a marriage by exercising the “option of puberty.” Still, this option is only available if the girl challenges the marriage before reaching eighteen and has not yet been consummated.

Parsi Marriage and Divorce Act, 1936

According to Section 3(1)(c) of the Act, the bridegroom and bride must be 21 and 18 years old, respectively, for a valid Parsi marriage. As a result, the marriage of a girl under the age of 18 is invalid.

However, the Act does not mention a girl’s right to leave such marriages, and there is no specific provision of penalties for failing to meet the minimum age requirement.

Special Marriages Act, 1954

The Special Marriage Act, 1954, applies to all Indian citizens, regardless of religion, and was initially enacted to allow inter-religious or inter-caste marriages.

Section 4(c) establishes the minimum marriage age for men and women as 21 and 18 years of age, respectively, and any marriage that violates this condition is void under the Act.

As a result, child marriages are void under the Act.

Case Study under Child Marriage Act

Independent Thought vs Union of India ((2017) 10 SCC 800)

On October 11, 2017, the Supreme Court of India issued a landmark decision, ruling that sexual intercourse or sexual acts between a man and his minor wife constituted rape for Section 375 of the Indian Penal Code, 1860. The Court has struck down Exception 2 to Section 375, which reads as follows:

“Sexual intercourse by a man with his wife not being under 15 years of age is not rape.”

And held that sexual activity with a minor would constitute rape, and the exception will not be applicable in cases where the wife is between the ages of 15-18.

Seema vs Ashwani Kumar (2008 1 SCC 180)

Marriage registration is not required under the PCMA, resulting in a large number of unreported child marriages. In 2017, the Law Commission issued a report titled Compulsory Registration of Marriages.’

In this case, the Supreme Court observed that Marriage registration would be a step in the right direction if mandatory in each state. They claimed that child marriage was still common in many parts of the country.

Now that states have made marriage registration mandatory, marriage officers and registrars must notify the CMPO of any child marriages.

Better coordination and communication between agencies concerned with protecting children’s rights and the statutory authorities established under the PCMA is thus clearly needed.

Conclusion

Child marriage is illegal because it violates the girl child’s human rights by subjecting her to exploitation and endangering her health and life.

Despite this, the evil practices get prevalent in our society because of socio-cultural norms and loopholes in various legislations on child marriages that grant them legal status. Even the Prohibition of Child Marriage Act of 2006 considers a child marriage valid unless either party chooses to have it annulled.

Furthermore, the criminalisation of sexual intercourse in child marriages is evidence that child marriages should be declared null and void. The penalties for performing child marriages should get strengthened. The laws governing maintenance, children born in child marriages, and so on should get amended to conform to the laws governing void marriages.

In addition, all other laws, including personal laws, should be harmonised to declare child marriages null and void. The need of the hour is the implementation of these laws.