CHILD MARRIAGE IN INDIA – A CRITICAL STUDY BY - ANKITA PATEL
CHILD MARRIAGE IN INDIA – A CRITICAL
STUDY
AUTHORED BY -
ANKITA PATEL
“If you make
the children erode then the world will explode.”[1]
The word child is the
most innocent and valuable word in the world; yet this innocence is ruined by
the society and ultimately devastating the child’s most essential part of life
i.e. childhood as well as adolescence. This study is wholly based on the issue
of child marriage; the evilness which prevalent upon the children in current
era as well.
Everybody knows marriage
is the sacred ceremony amongst the two individual but when we heard of a child,
married to another child or an old man it will shook our souls. For know the depth child marriage lets
discuss what exactly it is?
Child marriage is a union
in which one or both spouses are under 21 years of age. Previously under Indian
law the child marriage should constitute when the boy is below 21 years and the
girl is below 18 years of age but through the Prohibition Of Child Marriage
Amendment Bill, 2021 the minimum age for women increases to 21 and this bill
came into effect after two years of implementation i.e. 2023. So from 2023
onwards the legal age of marriage of a boy and girl would be considered as
equal.[2]
Through deep analyzation
this can be commented that child marriages specifically took place in the rural
areas or where the illiteracy among the people is high. If such alliance of
children constitute than it will generate dangerous consequences to education
as well as health of child mainly to girls such as early age pregnancy. It will
not only affect the physical health but also create a mental torture to both
the gender, especially when they become mature or they entered into their
adulthood. The child marriage not solely destroys the period of adolescence but
it will shatter the future of a child.
Child marriages have
existed in India from the times of Delhi sultanate when the monarchy system was
frequent and continues at very wide range before Independence from British
rule. However after independence, nations took many measures to remove such
evil rituals through legislations. Still, it is sad to assert that today also
in some part of our country this practice is prevalent.
Child marriage is deemed
as one of the critical and controversial issues of Indian society. In India
girls and boys are equally victim of such social issue but the early marriages
mostly affect the girl child because they have to deal with untimely gestation
period which they are not mentally prepared for. Child marriages constitute a
gross violation of human rights, leaving physical, psychological and emotional
scars for life.
The prevalence of this
issue is more prominently seen in Northern India particularly in the state of
Rajasthan, Uttar Pradesh, Bihar, Madhya Pradesh, Chhattisgarh and Gujarat. It
is found that child marriage has been practice mostly in rural areas rather
than in other parts of India[3].
The main reason behind it as follows:
1. Poverty: One
of the central grounds of child marriage is poverty. Lack of access to
resources such as education, employment, health issues may lead to such
circumstances which create poverty and highly impact on child marriage. In many
situation girls are considered as economic or financial burden; a status that
often leads families to marry their daughter or sister for economic benefits.
2. Patriarchy and Gender inequality: No doubt in India many people even now have a prospective
that girl is born for doing the
household chores and the men and boys can only do the field work. This
phenomena leads to the early marriage of children hence they don’t even get the
opportunity of proper study.
3. Illiteracy:
The most effectuate factor is illiteracy. People are still relying on the old
customs as well as superstitions. They follow the rule of their antecedents and
think of that if their children couldn’t get marry after attaining puberty then
they have to bear the curse of god.
4. There are countless factors which
lead to increase in such affairs and ultimately children are devoid from their
rights such as Right to equality, Special Laws and Safeguard of the children
rights enshrined in Article 14 &15. Right to survival, Right to protection,
Right to development all are inherent rights given to each and every citizen
including children under Article 21 of the Constitution of India which says,
“No person shall be deprived his life or personal liberty except according to
the procedure established by law.”[4]
The Constitution of India has many more laws enshrined in for the betterment of
children under Article 16, 17, 21A, 23 & 24 and provides the duty to the
state to direct its policy toward securing the rights of children under article
39. Yet we are lacking somewhere behind.
Of course there is no
advantage of such immoral custom it will only leads to death of child
innocence. The age in which almost every child is developing and learning new
things but there are few who struggles for their rights.
LATEST
SURVEY ON CHILD MARRIAGE
According to the National
Family Health Survey-5 (2019-21), the problem is much bigger in rural India
where the percentage was 27%, whereas in urban areas underage marriage
accounted for 14.7% of marriages.[5]
The data shows that 6.8%
females aged between 15-19 years were already mothers or pregnant at the time
of the survey. The rural- urban difference was prominent, with 3.8% women
falling in this category in urban areas and 7.9% in rural areas. NFHS-5
reflects an overall marginal decline from 7.5% from 2015-16. Man aged between
25-29 years who were married before the legal age of 21 years was 21.1% in
rural areas and 11.3% in urban India. Overall, such men accounted for 17.7% in
2019-21 as compares to 20.3% in 2015-16.[6]
A critical survey of
UNICEF in 2023 indicates that at least one in a three child bride lives in
India.[7]
How far one can say this
that they are living in a modern era where evil rituals are constantly followed
by few people. Through the above survey, it should be drawn that there is quite
decline in underage marriages yet the percentage is more. The present concerned
is over that how people are so fiercely forcing the child to marry; naturally a
child under 10 years of age couldn’t have the ability to think of themselves
over what the marriage actually is. For that purpose we need such harsh law
against those individual who is involved in doing activities like this, so that
they would be deterred to carry out such wrong in future.
Roles of Government And Judiciary to
Eradicate this social issue-:
Our legislature took
great effort to draw many laws over child marriage which is of gross importance
to reduce such malign custom. Let’s discuss such legislation and precedent for better
understanding how our government and judiciary together worked on it and still
giving span of time to abolishing it completely.
Legislations through the years are as follows:
1.
CHILD MARRIAGE RESTRAINT ACT, 1929
(CMRA):[8]
·
The
first and the foremost Act which was made for reduction in child marriage was
came from British era. In 1929, Rai Sahib Hariblas Sarda introduced a Bill in
parliament seeking the declaration of child marriage invalid for Hindus.
However, when it became the Act, it will apply over every citizen of India i.e.
Secular in nature.
·
The
Act placed the age bar boys and girls 18 and 14 respectively and this was
raised upto 18 years for girls and 21 for boys in 1978.
·
This
Act played an important role in penalising the adult male of age 18-21 and also
the guardian on the part of their negligence for doing such crime.
·
The
punishment for the crime was extending upto 3 months of simple imprisonment and
a fine but the major drawback arise that the Act did not comment on the
validity or voidability of such marriages.
2.
THE PROHIBITION OF CHILD MARRIAGE
ACT, 2006 (PCMA):[9]
This Act was passed to
override the effect of CMRA, 1929 because of its inadequacy and
ineffectiveness. The NCW and HRC put consistent efforts to bring the Act like
PCMA which was progressive and much refined version of previous Act.
·
As
per Section 3 of PCMA, a chid
marriage is voidable at the option of either contracting party i.e. ‘children’
during the marriage. If the child was minor at the time of filing petition
according to Majority Act, 1875 then they do so only through there guardians.
Hence, if a child is not attained the age of majority his/her marriage
voidability would be entirely depends on their guardian. The limitation period
for the petitioner is set at 2 years post the attainment of his/her majority.
·
Section 9 of the Act talks about the punishment for a male
adult marrying a minor girl child was increased from simple imprisonment of 3
months to rigorous imprisonment of 2 years along with Rs. 1 lakh as fine.
·
Section 12 of the Act makes the marriage null and void of
the minor child who is kidnapped, abducted or trafficked.
·
Section 13 and 14 informs about issue of an injunction
without necessarily sending a prior notice, with the District Judge conferred
with the powers of a Child Marriage Prohibition officer to prevent mass
marriages on date of Akshaya Tritya. Any marriage solemnised in contradiction
of an injunction order to be void ab initio.
·
Section 15 made prospective rule for all the
offences of child marriage under the Act have been made non-bailable and
cognizable.
·
Section 16 grants a significant power to Child
Marriage Prohibition Officer to stop a child marriage, where he may take any
action deemed fit to prevent the child marriage.
·
The
PCMA, 2006 set a benchmark to prohibit a child marriage as in comparison to
CMRA, 1929 as because it reduces countless loopholes contained under the Act of
1929.
3.
BHARATIYA NYAYA SANHITA,2023 (BNS)
and INDIAN PENAL CODE,1860 (IPC):[10]
In this year the Indian Penal Code, 1860 is substituted
with Bharatiya Nyaya Sanhita, 2023 with
effect from 1st July 2024. So
from this particular date onwards all the provisions existed in IPC will be
dealt by the new set of law collectively known as BNS. Child marriage is not specifically mentioned in the BNS and IPC
but provides somewhat idea related to this issues which are as follows:
·
Section 87 of BNS and Section 366 of
IPC talks on forced
marriage established by the kidnapping or abduction of a woman to compel her to
marriage.
·
Section 83 of BNS and Section 496 of
IPC establishes that
going through a marriage ceremony with fraudulent intent is a punishable
offence.
·
Section 143 of BNS and Section 370 of
IPC which was
amended in 2013 to address human trafficking for the purpose of sexual exploitation,
slavery and servitude.
·
The
comparative study of both the old and the new one specifies and establish that
these provisions covering the wider scope i.e. available for all citizens
including the children.
4.
PREVENTION OF CHILDERN FROM SEXUAL OFFENCES
ACT, 2012 (POCSO):
This Act
establishes to protect the children from sexual assault, sexual harassment and
pornography. But somehow conflict raise between IPC and POCSO Act in issue of
child marriage.
The POCSO
Act has a multiple sections against non consensual sexual activity against a
girl under the age of 18 years, and it does not draw distinction between
married or unmarried girl. But Section 5
& 6 of POCSO Act which
states that if a husband of a girl chid commits penetrative sexual assault on
his wife then he will be punish for rigorous imprisonment of 10 years which may
extend upto imprisonment for lifetime and fine is in contradictory with exception 2 to Section 375 of IPC
stated that “sexual intercourse by a man with his own wife not being under 15
years of age is not rape.”[11]
To resolve
above dispute the Supreme Court in Independent
thought v. Union of India[12] , In
the landmark judgement; The Supreme court of India ruled that sexual
intercourse or sexual act by a man with his minor wife would amount to rape for
the purpose of section 375 of Indian Penal Code, 1860. Further the court has read down exception 2
to Section 375 and ruled that Exception will not be applicable in cases where
the wife is between the ages of 15-18.
5.
Personal Laws and Child Marriage in
India
These laws
highlights the issues like the minimum legal age of marriage, punishment for
child marriage etc. according to the personal laws of the individuals.
HINDU MARRIAGE ACT, 1955 (HMA):[13]
There are no
such express provisions to prohibit Child marriages in HMA. But early marriages
would be inherent under some provisions which is as follows:
·
Under
Section 5 (iii) of HMA requires that
bridegroom should have completed 21 years of age, and the bride should be of 18
years at the time of marriage.
·
Section 18
(a) of HMA assigns penal consequences to the contracting parties, in a
child marriage, which in this case would be
children, for 2 years rigorous imprisonment along with a fine.
MUSLIM PERSONAL LAWS:[14]
It is not
codified in India, but derived from multiple sources such as the Quran, Hadis, Ijmas and Qiyas.
According to these sources the age of marriage as interpreted as follows:
·
The
valid age of marriage is said to begin post the onset of puberty, or 15 years
of age whichever comes earlier.
·
Any
marriage under 7 years is considered as void ab initio.
·
If
someone who has not attained puberty can be married with the consent of
guardian
Section 2 (viii) of the Dissolution
of Muslim Marriages Act, 1939 read with Section 275
of Mulla’s Principle of Mohamedan Law provided a girl child the option of
puberty where if she is given marriage by her father or other guardian before
attaining age of 15 years, then in such case, she should seek dissolution of
the marriage provided that she repudiates the marriage before attains the age
of 18 years, and also that it should occur prior to the consummation of the
marriage.
Hence we see from above
two personal laws which is highly demanded in India is in contradiction with
each other in marital status.
JUDICIAL
INTERPRETATION
Since from earlier times
the various high court uphold the child marriage as valid because of various
personal laws. Except few decisions one can find judgment in against of child
marriage.
In Lajja v. State[15];
the Delhi High court held that the PCMA prevails over the personal laws of the
country. Therefore, if any personal laws include any customs or traditions that
could be harmful to a section of society, secular laws such as PCMA are
available to counter it.
In Amrinder Kaur v. State of Punjab and Haryana[16];
the court refused the couple to be granted protection from the girl’s family
who threatening them. It held that the bride who was 16 at the time of marriage
was enticed out of lawful guardianship and therefore, the PCMA rendering the
marriage void.
The question of age of
discretion i.e “will a girl is capable enough for deciding herself” came up in
2011 in front of Madras High Court in T.
Sivakumar v. Inspector of Police,
Thiruvallur Town Police Station & others;[17]
the Court held that the marriage is not valid in a strict sense, and not
invalid. However with respect to the age of discretion the court believed that
the age may be determined as per facts and in the present case, where the girl
can be said to be capable of making decision, then it cannot compel the girl to
live with her parents and may entrust her in the custody of a person subject to
her volition.
In Mrs. Tahra Begum v. State of Delhi & ors[18];
the court upheld that the ‘option of puberty’ or khiyar-ul-bulugh must apply in
consonance with PCMA. In this case, the minor girl expressed her choice to
reside with her parents and the court upheld the agency and choice, over her
age and minority status.
In Hardev Singh v. Harpreet Kaur & ors[19];
the Supreme Court has held that a male between 18 to 21 years though is a child
and his marriage with a female adult will be treated as a child marriage, he
cannot be subjected to punishment for contracting child marriage.
Apart from the odd
judgement, the courts have largely held child marriages to be valid under
Indian Law and not attempted to present anything binding to prevent this social
evil from continuing.
Conclusion:
The practice of child
marriage has historical roots in India and it remains prevalent today in some
states of our country. One of the main reason of child marriage arise from the
part of illiterate parents who do not think of the future of their child and
end up ruining precious part of their life
At the same time our laws
having very broad escape clause regarding child marriages, even so it doesn’t
prohibit it but only provide the validity or invalidity of child marriage. The
punishments meted out under PCMA do not serve the purpose of deterring child
marriage which leads in continuing of such rituals in today’s era.
If we talk about judicial
pronouncement than we clearly saw that judiciary also deals with ambiguity when
the marriages were held according to the individual personal laws.
From the survey of NFHS-5
(2019-21) it will be conclude that there is slight drop in child marriages but
it cannot be curbed or prevented.
Though above-stated
research denotes us an idea about legislations as well as judicial
pronouncement against early marriages yet our country has been lacking behind
to abolish such issue.
Recommendations:
The child marriage is
undoubtedly a major issue in developing country like India. Following are the
suggestions to deal with such crucial phenomenon:
a) There is plethora of laws concerning
child marriage which create conflicts in dealing with such matter which can be
avoided by introducing Uniform Civil Code (UCC) so there will be no
interference by personal law of individual.
b) Harsh or rigorous punishment should
be implemented, thus perpetrator of such crime is feared before committing it.
c) State government and NGOs can play a
major role in educating people in the rural area.
It does not matter how many laws had
or have been made against child marriage; it will not work unless ‘we the
people’ take the initiative to suppress it as mere legislations won’t help if
there is no support and backing from the society. Hence, as an educated person
it will be our duty to be more precautious and become vigilant over this
matter.
LIST OF REFERENCES
Statute Referred:
a. The Constitution of India, 1950.
b. Child Marriage Restraint Act, 1929.
c. The Prohibition of Child Marriage
Act, 2006.
d. Bharatiya Nyaya Sahinta, 2024 and Indian
Penal Code, 1860.
e. Prevention of Children from Sexual
Offences Act, 2012.
f.
The
Hindu Marriage Act, 1955.
Websites Referred:
1.
Research Paper:
2.
Articles:
[2] Anamika Pathak , Over one third of Indian
women married in childhood: UN Report, Deccan Herald, https://www.deccanherald.com/india/over-one-third-of-indian-women-married-in-chilhood-un-report-3088305
[3] Palak Poddar, Prevalence of child
marriages as a part of customs in India, The Times of India Readers Blog, https://timesofindia.indiatimes.com/readersblog/some-thoughts/prevalence-of-child-marriages-as-a-part-of-customs-in-india-37796/
[4] India Const. art 21.
[5] Ambika Pandit, Child marriage down
but still remain area of concern , Times of India , https://timesofindia.indiatimes.com/india/child-marriages-down-but-still-remain-area-of-concern/articleshow/87899928.cms
[6] Ambika Pandit, Child marriage down
but still remain area of concern ,Times of India, https://timesofindia.indiatimes.com/india/child-marriages-down-but-still-remain-area-of-concern/articleshow/87899928.cms.
[7]
Anamika Pathak,
Over one third of Indian women married in childhood: UN Report, Deccan Herald, https://www.deccanherald.com/india/over-one-third-of-indian-women-married-in-childhood-un-report-3088305
[8] Chetna Soni, A critique of child
marriage law: A Legal Lacuna?, Acadmike , https://www.lawctopus.com/acadmike/critique-of-child-marriage-law-legal-lacuna/
[9] Chetna Soni, A critique of child
marriage law: A Legal Lacuna?, Acadmike, https://www.lawctopus.com/acadmike/critique-of-child-marriage-law-legal-lacuna/
[10] Centre for Reproductive Rights, Ending
Impunity for Child Marriage in India, page cited 16, https://reproductiverights.org/sites/default/files/documents/Ending-Impunity-for-Child-Marriage-India-WebUpdate-0218.pdf
[11]
Chetna Soni, A
critique of child marriage law: A Legal Lacuna?, Acadmike, https://www.lawctopus.com/acadmike/critique-of-child-marriage-law-legal-lacuna/
[13] Hindu Marriage Act,1955, No.25,
Act of Parliament, 1955(India).
[14] Chetna Soni, A critique of child
marriage law: A Legal Lacuna?, Acadmike, https://www.lawctopus.com/acadmike/critique-of-child-marriage-law-legal-lacuna/
[16] Amrinder Kaur v. State of Punjab
and Haryana, LQ 2014 HC 2832.
[17] T. Sivakumar v. Inspector of
Police, Thiruvallur Town Police Station & others, LNIND 2011 Mad 4101.
[18] Mrs. Tahra Begum v. State of Delhi
& Ors, LNIND 2012 Del 1139.