Introduction:
A recent study found that one in five girls and nearly one in six boys are married below the legal age of marriage. The study also found that there has been a significant drop in the statistics of child marriages in India from 1993 to 2023. In 1993, the number of girls being involved in child marriages was 49.4% which is now 22.3% and the boys from 7.1% in 2006 and 2.2% in 2021[1].
In India, the current legislation providing for child marriage is The Prohibition of Child Marriages Act, 2006 which states that the legal age for marriage is 18 for women and 21 for men.
The Prohibition of Child Marriages Act, 2006:
The PCMA was an amendment to the Child Marriage Restraint Act, of 1929. In the Act of 1929, the legal age of marriage was 15 for girls and 18 for men. The Act was amended in 1978 to change the legal age for marriage to 18 and 21 to women and men respectively.
The major problem with the 1978 Act was its enforcement. Although it was punitive, it did not create any space for people to complain or capture child marriages on time. A child marriage after solemnised was considered valid and not void or voidable. The only preventive measure that was created was to order a court injunction to stop child marriage before solemnisation[2].
The current legislation provides that:
- Child marriages are voidable as per Section 3 of the Act at the option of either party. They provided that the man or woman before filing the petition should not have attained 20 years of age.
- Female children in child marriages are entitled to maintenance by authorizing the district court to pass an order for maintenance or residence. The maintenance should be either paid by the guardian of the groom or himself if he attains the age of 18. The maintenance should be paid during the decree of annulment of marriage, as per Section 4 of the Act.
- If child marriage is conducted out of immoral practices such as selling the bride or enticing to keep the child away from legal guardians, or marriage through coercion would be considered void as per Section 12 of the Act.
- The solemnization, promotion and permitting of child marriage is a penal offence unless there’s reasonable proof that the marriage was not child marriage. However, no woman shall be punished. Section 9 provides that if a man above the age of 18 marries someone underage, he would face rigorous imprisonment of 2 years or a fine. The nature of the punishments is non-bailable and cognizable.
Enforcement:
In the matters of child marriages, the question arises of whether the customary law supersedes the Act. The absence of a uniform civil code allows differential treatment of children resulting in discrimination. Some victims of child marriage are thus entitled to better legal protection under the national law while others may remain out of this protective net[3].
The Hindu Marriage Act, of 1955 stipulates that both parties must be of legal age to consent. A marriage in which consent is acquired by coercion is void and subject to nullity decrees. Both the bride and the groom must provide their verbal and written agreement to the marriage by Islamic law. According to the Indian Christian Marriage Act of 1872, parental consent is required before marriage if one of the parties to the marriage is a minor. If the father is still alive, the consent of the guardian of the minor, or the mother’s consent in the absence of a guardian, is required[4].
The problem that arises in implementation is that only the parties in the marriage can declare the child marriage voidable, which rarely happens. It should be such that all child marriages are void ab initio. The result of such is that the deterrence purpose of the Act is not justified and becomes purposeless. The officers that are appointed through the provisions of the Act are usually the District magistrates, who on the other hand have so many other responsibilities on their own.
Case laws:
On the protection of the dignity of women, the Supreme Court in the case of Independent Thought v Union of India[5], a landmark judgement, held that any act of sexual intercourse during child marriage would be considered rape under Section 375 of IPC.
The court in furtherance, held that the Prohibition of Child Marriage Act applies to all and the act will prevail over the Hindu Marriage Act and the Muslim Marriages and Divorce Act.
The apex court in the case of Hardev Singh v Harpreet Kaur[6] held that if at the time of marriage if the bride is above the majority, then no punishment would apply to men marrying if he is 18-21 years old.
The court stated that “male adult above eighteen years of age, contracts a child marriage” to mean “male adult above eighteen years of age marries a child”. Further, it held that there is no requirement for consent if both parties are above the legal age.
In the conflicting case of Shalini @ Janvi V State of Uttar Pradesh[7], the bride’s father was trying to sell her and her grandmother had threatened to kill her. At that time, she was 16 years old and she married a man of her own will. She testified to the court that she married the man wilfully.
The court held that the marriage is not void under PCMA as she wilfully married the guy and she was neither abducted or kidnapped. It stated that :
“She hails from a disturbed and broken family. It is under such circumstances; she got married to Anil and wants to live with him as his wife. She has neither been kidnapped nor abducted. In such circumstances, it would be against the interests of substantial justice to rule that petitioner No.1 had been kidnapped or abducted by accused Anil/petitioner No.2”
The primary issue of most cases is whether the consent of a minor child is significant. The court in the case of “Ranjeet Singh vs State of Punjab and Ors” analysed the facts as the bride ran away from home and married a man of her own volition. The high court held that the consent of a minor in a case of child marriage is insignificant. However, she refused to go back to her parent’s house. Therefore the court directed to stay at her husband’s house but if she wishes to go back to her parent’s house, such should be allowed until she attains a majority.
The pattern of prosecuting men for child marriages solely rely on the testimonies given by the brides. It will be challenging to take back the allegation and then try to reach a compromise if she is accused of sexual assault. As a result, the girl’s evidence and oral declarations are crucial in situations when her parents can pressure her to make up a case against her husband. Consent should be taken into account as a mitigating element in situations involving allegations of statutory rape, and the judiciary should have more opportunities to clear young men who have eloped with adolescents who are near to reaching adulthood on their own free will.
The Prohibition Of Child Marriage (Amendment) Bill, 2021 :
The bill was passed in the Lok Sabha in December 2021. The key highlights are:
- The bill amends the Act in the provisions of legal age. The minimum age of marriage for both men and women is said to be 21.
- The bill also ensures that upon enforcement, it will override any other law, custom and practice.
- For annulment of marriages, the parties are entitled to file an application for 5 years (23 years) of attaining majority as opposed to 2 years[8].
The conflict that comes to light is the fundamental right to marry after attaining majority. The Indian Majority Act stipulates that a person attaining the age of 18 is a major. There is no clear rule on which of the two Acts should be followed in the instances of marriage. The Supreme Court has held that the right to marry is a fundamental right under Article 21 of the Constitution[9]. In another case, it was held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, which is recognised under Articles 19 and 21 of the Constitution[10]. If this Bill were passed, it would be legal to have sexual relations but illegal to marry for those between the ages of 18 and 21 years as consensual intercourse is not prohibited by law.
Conclusion:
There is a slow decrease in the number of child marriages day to day but the evil still exists. The conflict of the age of majority should be addressed by the lawmakers. If for example, marriage under muslim law is a contract and the legal age to enter into a contract is 18. But if the Act stipulates 21 as the age of marriage, the provisions of law contradict each other.
The implementation of the PCMA is still something that should be worked upon. Most people do not recognize child marriage as an offence and aren’t aware enough to oppose it. Unless the contracting parties contend it, the marriage is valid as per the Act. It is highly important to understand the health and overall implications child marriage has on the young population. Child marriages should be prohibited irrespective of customary practices.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Written by- Sanjana Ravichandran
[1] Anuradha Mascarenhas, One in 5 girls in India still married below legal age, finds new study, INDIANEXPRESS (Dec 17,2023) https://indianexpress.com/article/cities/pune/one-5-girls-india-married-legal-age-find-new-study-9070841/ .
[2] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf
[3] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf
[4] Enakshi Ganguly Thukral and Bharti Ali, Child Marriage in India: Achievements, Gaps and Challenges, OHCHR, https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/ForcedMarriage/NGO/HAQCentreForChildRights1.pdf
[5] 2017 SCC 10 800
[6] AIR 2020 SC 37
[7] 2019 SCC ONLINE ALL 4310
[8] The Prohibition of Child Marriage (Amendment) Bill, 2021, PRSINDIA (https://prsindia.org/billtrack/the-prohibition-of-child-marriage-amendment-bill-2021)
[9] Shafin Jahan vs Ashokan and Others, (2018) 16 SCC 368
[10] Shakti Vahini vs Union of India and Others, (2018) 7 SCC 192
