What is a Child marriage?
A marriage in which either the girl is below 18 years of age, or the boy is below 21 years of age, is a child marriage in India.
The essential condition for the validity of an Indian marriage is solemnization or conduct of the religious ceremonies prescribed by the religion to which the parties belong.
Child marriage is prohibited in India but such a marriage is not held as unlawful as of now by the courts.
Prohibition of Child Marriage Act
The Prohibition of Child Marriage Act, 2006 (PCMA) is the key law that puts some restraints on child marriages. The act aims at preventing child marriages, with provision for enhanced punishment of rigorous imprisonment for two years and/or fine of Rs one lakh.
It defines that a child is a male below 21 years, or a female below 18 years, for the purpose of marriage. The legal status of a child marriage is that it is voidable at the option of the partners engaging in it. A girl, engaged in a child marriage, can apply for declaring a child marriage a nullity within 2 years after she attains the mature age of 18 years.
However, child marriage is null and void when it involves kidnapping, abduction or trafficking of the minor. If the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void.
The act prescribes punishments for anyone who performs, conducts, directs or abets any child marriage. The same punishment is prescribed for anyone who gets the child marriage solemnised or promotes the solemnization of such marriage or permits it to be solemnized or negligently fails to prevent such marriage. The guardian of the minor in the marriage will also be held responsible for child marriage.
Child marriage is a reality
Despite having a law against child marriages for the last nine decades, child marriages have become a reality in our country. The society in fact gives more importance to the institution of marriage than the age of its parties.
There exists a implied consent to the continuance of customary child marriages despite having no legal sanction for it. Parliament is not in favour of child marriages per se, but is somewhat ambivalent about it.
Hindu Marriage Act
As per Hindu Marriage Act, 1955 (HMA), the parties to a child marriage alone are punishable under Section 18 of the act. The punishment is two years rigorous imprisonment or with a fine which may extend to one lakh, or with both. There is no provision in the act to punish the parents or people who solemnised the Hindu child marriage under the act.
There is no express provision to prohibit child marriage per se in the Hindu Marriage Act.
Muslim personal law
Muslim personal law is not codified in India. Its provisions are derived based on the interpretation of Quran.
There is no bar to child marriage under Muslim law. A guardian has a right to get a child married. However, a minor cannot legally enter into a marriage contract. Similarly, a contract of marriage entered into by a guardian of a minor on his or her behalf, is not binding on the minor. The minor on attaining puberty may ratify or revoke such a contract if he or she chooses to do so. This right is called Khayar-ul-Bulugh or the option of puberty. They must seek for declaration of nullity before turning 18 years of age, if the marriage has not been consummated. The age of marriage under Muslim law is the age of puberty which is 15 years.
A marriage before the age of 7, even if contracted by a lawful guardian, is void ab initio.
Christian child marriages in India
Indian Christian Marriage Act (ICMA) provides that a preliminary notice is to be issued 14 days prior to the marriage, if the marriage is to be contracted between minors.
After the expiration of the said period, the parties can go on with the marriage without the consent of their guardians.
Some anomalies/contrary provisions in law
The Hindu Minority and Guardianship Act, 1956, explicitly declares that in case of a minor married girl, her husband is her natural guardian. This provision endorses child marriage.
The Dowry Prohibition Act, 1961, also incorporates the validity of occurrence of child marriage. It provides that the dowry of a minor wife shall be held in trust for her benefits by any person who receives it and it shall be transferred to her within one year after she attains 18 years of age.
The Indian Majority Act, 1875, lays down 18 years as the age of majority. But the non-obstante clause which saves certain matters from the applicability of the act, paves the way for lots of ambiguities. The clause saves the matters of great importance in an individual’s life like marriage, adoption, divorce and dower from the operation of the Act. Consequently, the age of majority of an individual in these matters is governed by his/her personal law.
Such legislative endorsements of child marriage certainly diminish the mandate of the Prohibition of Child Marriage Act,2006 in discouraging the child marriages. Such legal provisions give an impression that the legal rights of the minors are secured.
Inconsistencies in judicial pronouncements
The judicial pronouncements show considerable inconsistencies among the high courts. However, the judiciary, in general, approves the validity of child marriage.
The courts in general held that a marriage is a sacred tie and once it is completed by solemnisation that cannot be untied. A child marriage, which was solemnized, could not be undone by reason of legal prohibitions to the contrary.
The Delhi High Court in Lajja Devi v State noted that there is a great departure from the position of HMA with the passing of Prohibition of Child Marriage Act, 2006. The court held that the Parliament has intended to allow PCM Act to override the provisions of HMA to the extent of inconsistencies between these two enactments and the PCMA will override the personal law.
In Jitender Kumar Sharma v. State and another and in Association for Social Justice & Research v. Union of India the Delhi High Court noted that PCM Act is of secular character and has an overriding effect on HMA. The Karnataka High Court followed the same dictum in Seema Beghum v State.
The High Court of Andhra Pradesh in P A Sarramma v G Ganpatalu held that a child marriage is void ab initio and, in such an event, the parties need not go to the court for getting it declared null and void.
the High Court of Andhra Pradesh has again deviated from the settled trend of holding child marriage valid, in Katari Subba Rao v Katari Seetha Mahalakshmi held that if there is a marriage of a girl, who is below 12 years, it is a void marriage and cannot be treated as a marriage at all.
the Madras High Court case of Abdul Khader & Ors v K Pechiammal Child Marriage Prohibition Officer where the court held that the Prohibition of Child Marriages Act is not against the Muslim Personal Law. The act, which was enacted to provide protection and for the welfare of the girl children, takes precedence over the personal law.
POCSO Act is gender neutral
The Protection of Children from Sexual Offences Act,2012 which afford better protection to the girl children and make no discrimination among them on the basis of their marital status.
Child marriage is a social menace
Child Marriage is a menace that needs to be curbed. There have been demands to make child marriage void ab initio under the Prohibition of Child Marriages Act.
But making child marriages void may jeopardise the rights of women who are victims of child marriage. Enacting and enforcing the Uniform Civil Code may help in preventing child marriage to a great extent.
Additional reading
- Report No 205 of the Law Commission of India on Proposal to amend the Child Marriage Act, 2006 & Other allied Acts. New Delhi , Government of India, 2008
