Lawpedia: CHILD MARRIAGE IN INDIA

I. INTRODUCTION

Child Marraige is considered to be a violation of human rights, according to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls5.In many parts of the world especially underdeveloped countries parents give consent to child marraiges hoping that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families, the daughter is married off at an young age to relieve the family from her economicresponsibilities.

Many factors are responsible for this practice, the most common ones are poverty,

protection of girls, family honour and the provision of stability during unstable social periods, lack of oppurtunities for girls, lack of awareness about adverse health consequences another big problem is the lack of awareness of law and also inadequate implementation of the existing laws.

It is seen that Child Marriages are caused mainly due to the tyranny of poverty and due to lack of education, so it is no coincidence that the underdeveloped countries of Asia, Africa, Middle East have higher rates of Child Marriage compared to the other parts of the world. Statistics show that the majority of girls in Asia, Africa and Latin America are married by the age of 146. It has been seen that the practice of child marriage is practiced more in countries which have high poverty rates, birth rates and death rates, higher levels of underdevelopment and lack of education.

Unfortunately marriage before attaining adulthood is a reality for many women,

according to UNICEF over 64 million women aged 20–24 years were married or in union before the age of 187. Child marriage has many harmful consequences which include lack of freedom, decreased opportunities of education. Child marriage can also result in enslavement, sexual exploitation and violence against the victims. Not only that, a child bride who is notphysically or psychologically prepared for conjugal life is also exposed to serious health risks such as early unwanted pregnancy which puts a young girl to great risks, increased risks of maternal and infant mortality, increased vulnerability to HIV and other sexually transmitted diseases.

Apart from affecting the health of a girl, Child Marriage has other consequences too.It usually takes away of educational opportunities among girls which limits theiropportunities for employment and income generation. In terms of development, child marriage prevents women from participating fully in the life of the family, the community and society and thus results in social isolation. Child marriage prevents women as well as the society from realising their full potential. It has a negative impact on the position of women in the society and also affects the potential contribution of women to the society.

The society bears a phenomenal cost by allowing the continuation of the practice ofchild marriage. The government and the civil society should play a role to develop and implement systems to prevent or discourage this practice. The existing world order, oftenbased on injustice and unfair economic opportunities, is to a great extent, responsible for thediscriminatory practices against women.

Child Marriage is a very common practice in India, especially amongst the

uneducated sections of the society, which actually forms a large chunk of the population. Infact 40% of the world’s child marriages occur in India. According to UNICEF’s “State of theWorld’s Children-2009” report8 , 47% of India's women aged 20-24 were married before thelegal age of 18, with 56% in rural area. The government has taken several steps to eradicatethis practice, however it is still being practiced all over the country. There are severallegislations on child marriage such as the Child Marriage Restraint Act,1929 and theProhibition of Child Marriage Act, 2006. However there are certain flaws in these

legislations, and also in the implementation of these laws. In the later chapters the legal issuesrelated to child marriages in India have been discussed extensively.

While analysing child marriages in India it can be seen that it is a problem which isaffecting the society in many ways. There are many social, religious, cultural and legalbarriers in prohibiting the harmful practice of Child Marriage in India.

II. CONCEPT AND VARIOUS PERSPECTIVE OF CHILD MARRAIGE.

A. Concept Of Child Marriage

Birth, marriage and death are the standard trio of key events in most people’s lives. But only one – marriage – is a matter of choice. The right to exercise that choice was recognized as a principle of law even in Roman times and has long been established in international human rights instruments. Yet many girls, and a smaller number of boys, enter marriage without any chance of exercising their right to choose. Some are forced into marriage at a very early age. Others aresimply too young to make an informed decision about their marriage partner or about theimplications of marriage itself. They may have given what passes for ‘consent’ in the eyes ofcustom or the law, but in reality, consent to their binding union has been made by others on their behalf 9. The assumption is that once a girl is married, she has become a woman – even if she is only 12. Equally, where a boy is made to marry, he is now a man and must put away childish things. While the age of marriage is generally on the rise, early marriage – marriage of children and adolescents below the age of 18 – is still widely practised and this practice is known as Child Marriage. Child Early Marriage refers to any marriage of a child younger than 18 years old, inaccordance to Article 1 of the Convention on the Right of the Child. While child marriage affects both sexes, girls are disproportionately affected as they are the majority of the victims. Their overall development is compromised, leaving them socially isolated with littleeducation, skills and opportunities for employment and self-realisation. This leaves child brides more vulnerable to poverty, a consequence of child marriage as well as a cause10. While Child Marriage takes many different forms and has various causes, one issue is paramount. Whether it happens to a girl or a boy, early marriage is a violation of human rights. The right to free and full consent to a marriage is recognized in the 1948 Universal Declaration of Human Rights (UDHR) and in many subsequent human rights instruments – consent that cannot be ‘free and full’ when at least one partner is very immature. For both girls and boys, early marriage has profound physical, intellectual, psychological and emotional impacts, cutting off educational opportunity and chances of personal growth. For girls, in addition, it will almost certainly mean premature pregnancy and childbearing, and is likely to lead to a lifetime of domestic and sexual subservience over which they have no control1

B. History of Child Marriage.

As per the Hindu philosophy12, marriage is not just a process of coming together of the Individuals but it is also a holy bond and a commitment which lasts a lifetime. Even the holyscriptures of the Vedas the sacred Hindu texts suggest that an individual should enter thephase of Grihasta " household" after his or her student life. Thus, it can be said that marriageis almost a mandatory custom in the life of all the Hindus. According to the philosophy of theVedas, there is a restriction on child marriage. The age of marriage for a boy is 25 years ormore and that of a girl is 18 years or more.

From the middle Age to the present day13 the custom of child marriage against

Vedas persists in India.There are many reasons to believe that this custom actually originatedin the medieval time when the political climate was unstable and law and order was not yetfixed on the national level. Arbitrary powers were concentrated in the hands of a hierarchyled by a despotic monarch. The predatory Sarasenic feudal lords and princelings of Sarasenicorigins who ruled all over India in the middle ages were a source of a constant threat. Henceparents would seek to get over with the responsibilities of their daughters by getting themmarried very young.

However, from Middle Age14, as states and government developed, the political

system elaborated and modified the Indian society gradually. It transformed the lifestyle andopinion of it's people from a simple to more complex form, restricting significantly the notionof liberty. Women lost their rights and had to obey rules and respect the code be behaviour.They were now subject to family discipline and the honour of their clan. Since young womenWere considered irresponsible and irrational in love, parents married them early before theygot caught into any scandal. Though, age at which the girl was to be married differed and itwas rare for girls younger than 12 to be married in antiquity. Nevertheless, girl brides becameyounger towards the Medieval period, and it became increasingly common for girls as youngas 6 or 8 to be married as Indian society. The prime concern of negotiating the marriage wasto find out the compatibility between the two families. It was believed during those times thatif two persons know each other right from childhood it enhanced understanding and affection.

Hence parents decided on the marriages of their children at a very early age although thedaughter stayed with her parents until she attained the age of puberty.

C. Quantitative Data Of Child Marriage In India.

Child Marriages continue to be a fairly widespread social evil in India. In a study carried outbetween the years 1998 to 1999 on women aged15-19 it was found that 33.8% were currentlymarried or in a union15. This showed that child marriage was far more prevalent amongstgirls and this highlighted the gender dimension of the problem. The National Family HealthSurvey of 2005- 2006 (NFHS-3) carried out in twenty-nine states confirmed that 45% ofwomen currently aged 20-24 years were married before the age of eighteen years. Thepercentage was much higher in rural areas (58.5%) than in urban areas (27.9%) and exceeded50% in eight states16. The percentage of women aged 20-24, married by the time they are 18,stood at 61.2% in Jharkhand followed by 60.3 % in Bihar, 57.1% in Rajasthan, 54.7% in AP,and 53% in MP, UP and West Bengal. The NFHS-3 findings further revealed that 16% ofwomen aged 15-19 were already mothers or pregnant at the time of the survey. It was alsofound that more than half of Indian women were married before the legal minimum age of 18compared to 16% of men aged 20-49 who were married by age 18. Though NFHS-3 did notcompile data on girls who were married below the age of 15, the 2001 Census of India hadrevealed that 300,000 girls under 15 had given birth to at least one child.

Further in a survey conducted by the Government of Rajasthan in 1993 it was foundthat 56% girls had been forced into marriage before the age of 15 and of these 7% weremarried before they were 10.6 A second survey conducted in 1998 in the State of MP foundthat 14 % girls were married between the ages of 10 and 14. 7 In 2006 the Hindustan Timesreported that 57% of girls in India are married off before they are 18 as per the InternationalCentre for Research on Women17.

D. Socio-economic Cause of Child Marriage.

Child Marriage in India has been practiced for centuries, with children married off beforetheir physical and mental maturity. The problem of Child Marriage in India remains rooted ina complex matrix of religious traditions, social practices, economic factors and deeply rootedprejudices. Regardless of its roots, child marriage constitutes a gross violation of humanrights, leaving physical, psychological and emotional scars for life. Sexual activity starts soonafter marriage, and pregnancy and child birth at an early age can lead to maternal as well asinfant mortality. Moreover, women who marry younger are more likely to experiencedomestic violence within the home18.

The phenomenon of Child Marriage can be attributed to a variety of reasons19. Thechief amongst these reasons is poverty and culture, tradition and values based on patriarchalnorms. These norms do not take into account that in actuality, Child Marriage is a violation ofhuman rights, compromising the development of girls and often resulting in early pregnancyand social isolation, with little education and poor vocational training reinforcing thegendered nature of poverty. Young married girls are a unique, though often invisible, group.Required to perform heavy amounts of domestic work, under pressure to demonstratefertility, and responsible for raising children while still children themselves, married girls andchild mothers face constrained decision making and reduced life choices. Boys are alsoaffected by child marriage but the issue impacts girls in far larger numbers and with moreintensity.

Where a girl lives with a man and takes on the role of caregiver for him, the

assumption is often that she has become an adult woman, even if she has not yet reached theage of 1820. The marriage of a minor girl often takes place because of the poverty andindebtedness of her family. Dowry becomes an additional reason, which weighs even moreheavily on poorer families. The general demand for younger brides also creates an incentivefor these families to marry the girl child as early as possible to avoid high dowry paymentsfor older girls. The girl in our patriarchal set up is believed to be parkithepan(somebody’sproperty) and a burden. These beliefs lead parents to marry the girl child. In doing so, theyare of course relieving themselves of the ‘burden’ of looking after the child. The girls areconsidered to be a liability as they are not seen as individuals who can contributeproductively to the family.

Unfortunately, the patriarchal mindset is so strong that the girl has no say in decisionmaking. Texts like Manu Smirti which state21 that the father or the brother, who has notmarried his daughter or the sister who has attained puberty will go to hell are sometimesquoted to justify Child Marriage. Child Marriages are also an easy way out for parents whowant their daughters to obey and accept their choice of a husband for them.There is also a belief that Child Marriage is a protection for the girls againstunwanted masculine attention or promiscuity. In a society which puts a high premium on thepatriarchal values of virginity and chastity of girls girls are married off as soon as possible.

Furthermore securing the girl economical economically and socially for the future has beenput forth as a reason for early marriage22. The institution of marriage in communities orsocieties can be used to serve or strengthen economic and social ties between differentfamilies and even communities. Also a young girl may be offered to a family in order toimprove the financial and social standing of the girl’s family23. Other reasons that have beenlisted for the high prevalence of child marriages in India are lack of education andknowledge, shortcomings in the law, and the lack of will and action on part of theadministration24.

E. Consequences Of Child Marriage

As stated above, Child Marriage is a grave violation of the rights of the child depriving her ofopportunities and facilities to develop in a healthy manner to obtain education and to lead alife of freedom and dignity. It deprives the young girl of capabilities, opportunities anddecision-making powers and stands in the way of her social and personal development.Young brides face the risk of sexual and reproductive ill health because of their exposure toearly sexual activity and pregnancy.

Complications and mortality are common during childbirth for young pregnant girls.Girls who come from poor backgrounds and who are often married at an early age have littleor no access to health care services. Risks associated with young pregnancy and childbearinginclude “an increased risk of premature labour, complications during delivery, low birthweight,and a higher chance that the newborn will not survive25.” Young mothers under age15 are five times more likely to die than women in their twenties due to complicationsincluding haemorrhage, sepsis, preeclampsia/ eclampsia and obstructed labour26. Maternalmortality amongst adolescent girls is estimated to be two to five times higher than adultwomen27. Maternal mortality amongst girls aged 15-19 years is about three times higher28.Young women also suffer from a high risk of maternal morbidity.It has been found that for “every woman who dies in childbirth, thirty more suffer

injuries, infections and disabilities, which usually go untreated and some of which arelifelong”29. Research further indicates that the babies of mothers below the age of 18 tend tohave higher rates of child morbidity and mortality. “Infants of mothers aged younger than 18years have a 60 per cent greater chance of dying in the first year of life than those of mothersaged 19 years or older [UNICEF 2007].” Babies are born premature or underweight or youngmothers simply lack parenting skills and decision-making powers30. Secondly, young girlsface the risk of infection with sexually transmitted diseases including HIV. Young brides whorun away from early marriages may end up as sex workers or eventually resort to use sexwork as a way of earning additional income. Young brides also run the risk of catchingdiseases from their respective spouses, as older husbands often engage in sexual relationswith other women outside the marriage. Young married girls do not have bargaining power inthe marriage and therefore cannot negotiate safe sex and are deemed vulnerable. It has alsobeen found that young girls are physiologically more prone to contracting HIV/AIDS, as hervagina is not well lined with protective cells and her cervix may be more easily eroded.

An analysis of the HIV epidemic shows31 that “the prevalence of HIV infection ishighest in women aged 15–24 and peaks in men between five to ten years later.” Women alsoundergo sexual violence in marriage and young girls are particularly vulnerable. In a studycarried out in Calcutta in 1997 where half the women interviewed were married at or belowthe age of 15, with the youngest being married at 7 years old, findings revealed that this agegroup had “one of the highest rates of vulnerability to sexual violence in marriage, secondonly to those whose dowry had not been paid.” The women interviewed said they had sexualintercourse before menstruation had started, that sex was early and very painful, and “manystill continued to be forced into sexual activity by their husbands.” 25Additionally the younggirls “had made their husbands aware of their unwillingness to have sex or of pain during sex,but in 80 per cent of these cases the rapes continued.” As husbands are often much older thantheir brides, girl brides are likely to be widowed at an early age.

A child bride who is widowed can suffer discrimination including loss of status andthey are often denied property rights, and other rights. Child widows have little or noeducation or other skills to be able to take care of themselves. At a 1994 Conference in Bangalore, India, participants told of being married at five and six years old, widowed a few years later, and rejected by their in-laws and their own families. These widows are, quite simply, left with no resources and nowhere to go32. Young girls who are married early

usually stop going to school. Giving an education to a girl is perceived by both the girl’s and boy’s families unnecessary for becoming a good wife or a mother, if not a deterrent. Those who have a choice are eventually forced to drop out of school because they are forced to assume the responsibility of doing domestic chores and starting a family etc. The loss of adolescence, the forced sexual relations, and the denial of freedom and personal development attendant on early marriage have profound psychosocial and emotional consequences.

Researchers on Child Marriage in Rajasthan and Madhya Pradesh state that young married girls suffered more than boys due to the abovementioned consequences of Child Marriage33.

III. The HINDU MARRIAGE LAW IN INDIA

The Hindu Marriage Act 1955 was enacted by the Indian Parliament in the year 1955 with the intention of regulating the personal life among the Hindus, especially their institution ofmarriage, its legitimacy, conditions for divorce and applicability etc. There are many significant features in the provisions of the Act that lay down the very foundation of marriage. The basic essence of the act is that it appropriately recognizes the religious ethics and morals of the Hindus. Therefore, the Hindu Marriage Act is applicable to all Hindus, taking within its ambit various offshoots like followers of Prarthana, Arya and BrahmoSamajas and Sikhs, Buddhists and Jains.

1. The Concept Of Void And Voidable Marriage Under The Hindu Marriage Law In India:

a. Concept of Void Marriage:

A Void Marriage34 is one that will be regarded by the every court in any case in which the existence of marriage is in issue as having not been taken place and can be so treated byboth the parties to it without any necessity of any decree annulling it. A decree is nonetheless advisable. It can be obtained by either party to marriage or by person having sufficient interest in it.

A Void Marriage is no marriage. It is a marriage which exist from its beginning. Itis called a marriage because two persons have undergone the ceremonies of marriage. Since they absolutely lack capacity to marry,they cannot, by just undergoing ceremonies, become husband and wife in the eyes of law35. For instance, if a brother and sister perform all the ceremonies of marriage and start living as man and wife, that will not make then husband and wife in the eyes of law. So in case of void marriage parties have no status of husband and wife . Thus, if one of them or both of them take another spouse the offense of bigamy will not be committed. For instance , A and B are two brothers. A marries W, but the marriage is void. A dies leaving behind his brother B , and his widow W. B claims that he is entitled to inherit A’s properties because W was not A’s wife .If he files a suit claiminginheritance to his brother’s property, he can prove in these proceedings that marriage of A with W was void, hence W is not entitled to succeed to. A void marriage confers no status oflegitimacy and therefore children of void marriage are illegitimate36.

In respect of a void marriage no decree of court is necessary. Even when the court

Passes a decree, it merely declares that marriage is null and void. It is an existing fact thatmarriage is void and the court merely makes a judicial declaration of the fact37. Moreover a void marriage cannot be approbated. It cannot be ratified later.

b. Concept of Voidable Marriage:

A Voidable Marriage is one that will be regarded by every court as a valid, subsistingmarriage until a decree annulling it has been pronounced by a court of competentjurisdiction38. However , in English Law, the form of the decree was the same as in the case of void marriage : pronouncing the marriage to have been and to be absolutely null and void to all intends and purposes in the law whatsoever. This lead to a great deal of confusion and conflict. This confusion has been now avoided by the Nullity of marriage Act, 1971. Section 5 lays down, decree of nullity granted after the commencement of this Act on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree , be treated as if it had existed upto that time.

A Void Marriage is a perfectly valid marriage so long as it is not avoided. A

Voidable marriage39 can be avoided only on the petition of one of the parties to the marriage.

If one of the parties does not petition for annulment the marriage will remain void. If one og the parties dies before the annulment of the marriage the no challenge the marriage. The marriage will remain valid forever.So long it is not avoided all the legal consequences of a valid marriage flow from it, such as: it confers the status of husband and wife on theparties,thechildrens are legitimate and all mutual rights and obligation arises from it.

2. Prescribed Age For Marriage Under Hindu law.

Almost all systems of law have permitted marriages at an early age, and age of marriageand age of majority have been different. The Hindu Sages have enjoined that a girl should be married before she attained puberty though they laid down the age of 25 for the boys – the age when a child returned from Guru’s ashram after completion of his education. Under ancient Hindu law the age of majority was much less, under the Dayabhaga School it wascompletion of 5th year, while under the Mitaksharaschool it was completion of 16 years40.

The Hindu sages like Manu and Gautama enjoined that it was the religious duty of the fatherto give the daughter in marriage before the signs of puberty made appearance. Some sages even declared that if a girl was married after she attains marriage-age, she was at liberty to choose a husband for herself41. The Hindu Marriage Act,1955 originally laid down the age of 15 for girls and age 18 for boys. These ages were raised to 18 and 21 of respectively by the Child Marriage Restraint (Amendment) Act,1978. Section 5 (iii) of the Hindu Marriage

Act,1955 lays down that a marriage may be solemnised between any two hindus if“bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage42”.But such a policy of law that non- age does not render the marriage void orvoidable. The marriage remains valid. The 59th Report of the Law Commission felt that “thegeneral understanding that the breach of that conditions does not effect the validity of marriage” should remain undisturbed43. The rationale behind this policy is that minormarriages in our country are still so rampant that if we would lay down that non-agerendered a marriage void, probably 80 percent of marriages: to put a damper on them. But if performed, the validity of the marriage will not be effected in pursuance to policy of discouraging child marriages.

3. Conditions For Valid Marriage Under Hindu Marriage Act,1955.

A marriage may be solemnized between any two hindus, if the following conditions44 arefulfilled, namely:-

I. neither party has a spouse living at the time of the marriage;

II. at the time of the marriage, neither party-

a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;or ,

b) though capable of giving a valid consent, has been suffering from mental disorderof such kind or to such an extent as to be unfit for marriage and the procreation of children;or,

c) has been subject to recurrent attacks of insanity or epilepsy;

III. the bridegroom has completed the age of twentyone years and the bride the age of eighteen years at the time of the marriage;

IV. the parties are not within the degrees of prohibited relationship unless the customor usage governing each of them permits of a marriage between the two;

V. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

IV. CHILD MARRIAGE LAW IN INDIA – AN ANALYSIS.

A. The Child Marriage Restraint Act,1929.

a) Legislative History Of The Child Marriage Restraint Act,1929.

Child marriage existed historically in India, it is believed that child marriage was prevalent in the ancient as well as medieval times45.Some Indian scholars question the existence of child marriage in ancient India, butin most religious texts the father was urged to marry of his daughter at a very young age.Most religious texts recommend46 ages between 8 to 10 as the ideal age for marriage. Sage Manu, in his Manusmritihas categorically written47 that if a girl remains unmarried afterReaching the puberty, the father has failed in his duty towards her. Similarly, another sage,Parasara, said that the parents or guardians of a girl who reaches puberty before marriage will definitely go to hell. Amongst the Yadavs, Guptas ,Thahare, Kurmis, Mourya it was believed that if a daughter is married before the start of her menstrual period the blessings that will accrue will be akin to the donation of 7.800 cows. On the other hand, if the marriage is solemnized after a daughter’s menstrual period, it will have the same effect as killing 7,800 cows. One thing that must be kept in mind when tracing the religious and cultural roots of child marriage is that in 400 BC the average life span of a woman was between thirty five and forty years; if this was a rationale for early marriage at one time, this is no longer an issue.

According to Customary Muslim Law Child Marriages are permitted. A person can enter into a valid marriage after reaching puberty, that is once he or she attains the age of 15.Even in the medieval times Child Marriage was prevalent, according to studies48

the predatory feudal lords and the princes who stalked all over India in the medieval age werea source of constant threat. Hence parents would seek to get over the responsibilities of their daughters by getting them married off before they reached marriageable age. According to some scholars the practice of child marriage did not exist in ancient India and started in the medieval age along with other evil practices like Sati and dowry.The practice of Child Marriage was prevalent even during the British period. Two significant cases in the nineteenth century brought the issue of Child Marriage into limelight. The Rukhmabai case49 in Maharashtra and Phulmonee case50 in Bengal as they are popularly known raised significant questions about the age and issue of consent in Hindumarriage. In the case of Phulmonee the girl child aged eleven years died because of a haemorrhage from a rupture of the vagina caused by her husband who had forcible sexual intercourse with her, but the court acquitted her husband as the girl was above ten years and according to the law sexual intercourse with a wife who was above the age of ten was not rape. This case galvanised public support for the Age of Consent Bill and in many ways silenced the opposition. Both the cases marked the tension between the Hindu orthodoxy on one hand that upheld child marriage and perceived any opposition to it as an affront to tradition and social reformers opposing such religious bigotry on the other hand. For the latter.such blind adherence to social norms meant the continuation of harmful practices in the name of tradition and therefore necessitated immediate challenge of such socially sanctioned practices including Child Marriage. While the debate on Child Marriage is often understood as a tradition-modernity dichotomy, it is also important to bring to the fore the struggle by women themselves in these cases to challenge patriarchal values and practices, albeit in their limited ways.

The issue of Child Marriage was first addressed in the 1860’s when the Indian

Penal Code laid down laws related to Child Marriage. The minimum age for marriage was not laid down, laws were made to punish those who had sexual intercourse with their wives below a particular age. The change was intended to give protection to young girls from sexual abuse within the institution of marriage. In 1860 the India Penal Code was drafted, according to Section 375 of the IPC sexual intercourse by a man with his wife who is under the age of 15 is considered to be rape. This was the first step taken in the direction of making childmarriage illegal, however this law could not be successfully implemented and the practice of child marriage still continued all over the country. In 1929 the Child Marriage Restraint Act

or the Sarda Act came into force with the objective of eliminating the practice of child marriage. The minimum age of marriage was raised to 14 years for girls by this Act, later it was amended in 1978 by which he minimum age was raised to 18 years for girls. However this Act has several loopholes and weaknesses, and very few persons have been prosecuted under this Act. It can be said that the enactment of this Act was only a perfunctory gesture by the government, without serious commitment to prohibiting Child Marriages.

2. The Objective And Reasons Of The Act.

The Child Marriage Restraint Act, 1929 was passed during the tenure of British rule on prepartitionIndia. It forbade the marriage of a male younger than twenty-one or a female

younger than eighteen. A marriage fell under the scope of this Act if either of the contracting parties met the established criterion of a child.

To eradicate the evil of Child Marriage51, the Child Marriage Restraint Act was

passed in 1929. The object is to eliminate the special evil which had the potentialities of dangers to the life and health of a female child, who could not withstand the stress and strains of married life and to avoid early deaths of such minor mothers.

3. The Main Provisions Of The Act.

1.The penal provisions of the Child Marriage Restraint Act,1929 do not invalidate the fact of marriage nor do the penal provisions apply to a child. However the Act lays52 down punishment for male adult below twenty one years of age and for male adult above twenty one years of age who contracts a Child Marriage and also for the person who performs conducts and directs a child marriage.

2. Section 6 of the Act, provides53 that where a minor contracts a Child Marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful orunlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine.

3. Section 7 provides54 that the Code of Criminal Procedure, 1973 shall apply to offences under the Act as if they were cognizable offence for the purpose of investigation.

The Act provides that only a Metropolitan Magistrate or a Judicial Magistrate of the First Class can take cognizance of, or try any offence under this Act.

4. The Act lays down55 the period of Limitation of cognizance. It lays down that no Court can take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. This further dilutes the efficacy of the law.

5. The Act lays down the provisions56 for injunction, Section 12 empowers the Magistrate to issue injunction prohibiting marriage in contravention of this Act. The Court may issue an injunction against any of the persons mentioned in Section 3, 4, 5 and 6 of this Act prohibiting such marriage.

An injunction shall not be issued against any person unless the court has previously given notice thereof to the person concerned and has afforded him an opportunity to show cause against the issue of the injunction. This requirement of the law may defeat the purpose of social justice where there is imperative need of judicial intervention to save the welfare and interest of the child.

B. The Prohibition Of Child Marriage Act,2006.

In 2006 the parliament approved a bill outlawing Child Marriages and voiding

those that have taken place. “Sixty-five percent of the girls married in India are below the age of 18. We need to remove this biggest obscenity of child-child and child adult marriages”,

Minister of State for Women and Child Development declared while moving the Prevention of Child Marriage Bill, 2004 that the Rajya Sabha later adopted57. The supposed goal of this Act is to amend the laws that are in force in relation to child marriage, and to abolish the evil practice. However it can be said that the legislature has not really tried to abolish the practiceof Child Marriage, Child Marriages have been merely discouraged. The legal position has not changed a great deal even after the passing of this Act. The present legal position after the passing of the Child Marriage Prohibition Act, 2006 has been discussed in detail in the subsequent chapters.

541. The Objective And Reasons Of The Act.

The Child Marriage Restraint Act,192958 was enacted with a view to restraining

solemnization of child marriages. The Act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of Marriage; The Act, though restrains solemnization of child marriages yet it does not declare them to be void or invalid. The solemnization of child marriages is punishable under the Act.

There has been a growing demand for making the provisions of Act more effective and the punishment there under more stringent so as to eradicate or effectively prevent the evil practice of solemnization of child marriages in the country. This will enhance the health of children and the status of women. The National Commission for Women in its Annual Report for the year 1995-96 recommended59 that the Government should appoint Child Marriage Prevention Officers immediately. It further recommended that— (i) the punishment

provided under the Act should be made more stringent; (ii) marriages performed in contravention of the Act should be made void; and (iii) the offences under the Act should be made cognizable.

The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. The Central Government, after consulting the State Governments and Union territory Administrations on the recommendations of the National Commission forWomen and the National Human Rights Commission, has decided to accept almost all the recommendations and give effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929. Thereafter the Prohibition of Child Marriage Act,2006 has been passed.

The Prohibition of Child Marriage Act,2006 was enacted to provide for the prohibition of

solemnisation of child marriages and for matters connected therewith or incidental thereto.

2. The Main Provisions Of The Act,2006.

(i) Section 3 of the Act lays down a provision that a petition can be filed for annulling a Child marriage at the option of the either party.The act states that a Child Marriage isvoidable at the option of either party to the marriage.

(ii) Section 4 lays down provision for mantainance and residence to the female

contracting party to Child Marriage.

(iii) Section 5 of the Act lays down custody and mantainance of the children born out of Child Marriage.

(iv) Section 6 of the Act lays down the provision as to legitimacy of Children born out of Child Marriage. (v) Section 9 of the Act lays down the punishment of the male adult marrying a child.

(vi) Section 10 of the act lays down punishment for solemnisation of Child Marriages.

(vii) Section 12 of the Act lays down the provision as to when a Child Marraige shall be deemed to be void

(viii) Section 13 of the Act lays down the provision as to the power of the court to issue injunction prohibiting Child Marriage.

(ix) Section 15 of the Act lays down provision making the offence of Child Marriage cognizable and non-bailable.

(x) Section 16 of the Act lays down provisions for appointment of Child Marriage

prohibition officer by the state government

V. The LEGAL STATUS OF CHILD MARRIAGES IN INDIA.

One of the main reasons for the existence of child marriage is weak legislations and lack of implementation of the existing laws. This results in child marriages being conducted with impunity. In India age of marriage is 18 for a female and 21 for a male60. Any marriage of a person below this age is punishable in India.

A. Position Under Child Marriage Restraint Act,1929.

Under the Child Marriage Restraint Act,1929 the policy of the government was to discourage child marriages by punishing those who promoted or engaged in the act of marrying underage girls and boys, however the new spouses were not liable for any action under the Act despite both parties being under the prescribed age, and such a marriage was considered to be valid and legally enforceable. The reason behind such a policy was that it was in the best interests of the girls involved in such a marriage; for under the existing cultural and social ethos of the land a married girl was no more considered to be a part of the family of her birth and instead a part of the family of the groom. More importantly, since non-recognition of such marriages would imply that the off-springs of such marriage would be ill-legitimate, it was considered important to consider such under-age marriages valid.10

Under the Hindu Marriage Act, 1956 even marrying parties persons were liable to be punished. However child marriages were not declared to be void or voidable, they were still valid and legally enforceable, and a person could not render it void after attaining adulthood if a valid marriage had taken place during his or her childhood.

B. Position Under Prohibition Of Child Marriage Act,2006.

Under the Prohibition of Child Marriage Act,2006 child marriages were not made void but voidable, that is the parties to an underage marriage could declare it void after attaining adulthood. However the girl still had the right to maintenance from her husband even if the marriage was declared to be void, hence the right of the girl was protected. Another changethat was brought about by the act is that the punishment for encouraging child marriage was increased. Before the passing of this Act the punishment was a meager simple imprisonment upto three months and fine. Under the new Act the a male adult marrying a child can punished with rigorous imprisonment which can extend to two years and also liable to pay a fine up to 2 lakhs. Persons solemnising the marriage, abetting the marriage or taking part in the marriage in any way can also be punished in a similar fashion.

Under Section 12 of the Prohibition of Child Marriage Act,2006 certain marriages can also be declared to be void61.

The marriage of a minor child is rendered to be void if the child :-

(a) is taken or enticed out of the keeping of the lawful guardian; or(b) by force compelled, or by any deceitful means induced to go from any place; or

(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

The court has also been given more powers under this Act. Prevention is always

better than cure, the Act envisions situations wherein conducting of the child marriages should be stopped. The court has the power to issue injunction prohibiting child marriages62. If, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged oris about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. Under this Act provisions are made for the maintenance of the girl even if themarriage is annulled later, so the rights of the girl to get maintenance is protected. Thechildren born out of such a marriage are also deemed to be legitimate for all purposes. Hencethe rights of the a child born under such a marriage has also been protected under this Act.

At present, an a child marriage is considered to be a valid marriage, although it canbe annulled at the option of one or both the parties63. Recently it was held64 by the Delhi High Court that the marriage between an 18 year old boy and a 16 year old girl is valid since it is not declared to be void or voidable under any Act, and although both are underage for the purpose of marriage the marriage is legal and binding. After the passing of the Child Marriage Prohibition Act such marriages are made voidable, but nobody other than a party to the marriage can file a petition for the annulment of the marriage.

However in another case the same High Court has held a child marriage as a human right violation, and a minor girl and her forty year old husband were restrained from consummating their marriage till she attains the age of majority. The girl was ordered to staywith her parents till attaining the age of majority. However the court refused to declare the marriage void.

Hence, the courts have given conflicting judgements and as a result the legal position is not very clear, and in many cases it has been seen that the offenders have gone unpunished inspite of committing the offence.

VI. CONFLICT OF CHILD MARRIAGE LAW IN INDIA WITH OTHER STATUTES

IN INIA

The intention of the legislature to .approve the validity of the child marriage is evident in

other enactments also. It is distressing to note that the Indian Penal Code, 1860 acquiesces

child marriage65.The exception to section 375 specifically lays down that sexual intercourse

of man with his own wife, the wife not being under fifteen years of age is not rape, thus

ruling out the possibility of marital rape when the age of wife is above fifteen years66. On the

other hand, if the girl is not the wife of the man, but is below sixteen, then the sexual

intercourse even with the consent of the girl amounts to rape? It is rather shocking to note the

specific relaxation given to a husband who rapes his wife, when she happens to be between

15-16 years. This provision in the Indian Penal Code,1860 is a specific illustration of

legislative endorsement and sanction to child marriages. Thus by keeping a lower age of

consent for marital intercourse, it seems that the legislature has legitimized the concept of

child marriage. The Indian Majority Act, 1875 lays down eighteen years as the age of

majority but the non obstante clause67(notwithstanding anything contrary) excludes marriage,

divorce, dower and adoption from the operation of the Act with the result that the age of

majority of an individual in these matters is governed by the personal law to which he is a

subject. This saving clause silently approves of the child marriage which is in accordance

with the personal law and customs of the religion.

Another glaring instance of legislative endorsement of Child Marriage can be seen in

the Hindu Minority and Guardianship Act, 1956, which clearly says that the natural

guardian68 of a minor girl is her husband. This section does not envisage the impact when the

husband of the minor girl also happens to be a minor himself. This acceptance of

guardianship of the minor wife itself indicates the legislative intention of giving legitimacy to

such marriages. It is to be specifically noted that the other legislations like the Indian Penal

Code and Indian Majority Act are pre independence legislations whereas the Hindu Minority

and Guardianship Act is one enacted in the post independent era Another post independent

social welfare legislation, the Dowry Prohibition Act, 1961 also contains provisions which

give implied validity to minor's marriages. The words 'when the woman was minor' used in

section 6(1)(c)69. reflects the implied legislative acceptance of the child marriage. CriminalProcedure Code, 1973 also contains a provision which incorporates the legislative

endorsement of Child Marriage. The Code makes it obligatory for the father of the minor

married female child to provide maintenance to her in case her husband lacks sufficient

means to maintain her70.

The insertion of option of puberty to Hindu Law through an amendment in 1976 indicates the

silent acceptance of child marriages. The option of puberty provides a special ground for

divorce for a girl who gets married before attaining fifteen years of age and who repudiates

the marriage between 15- 18 years. Legislative endorsement and acceptance which confers

validity to minor's marriage in other statutes definitely tarnishes the very purpose and object

of the Child Marriage Restraint Act,1929 - to restrain and to prevent the solemnization of

Child Marriage. These provisions containing legal validity provide an assurance to the

parents and guardians that the legal rights of the married minors are secured. The acceptance

and acknowledgement of such legal rights itself and providing a validity of Child Marriage

defeats the legislative intention to curb the social evil of Child Marriage.

VII. AN ANALYSIS OF THE JUDICIAL TRENDS IN INIDA REGARDING CHILD

MARRIAGES.

Solemnization of Child Marriage is an offence under the Child Marriage Restraint Act, 1929.

The Act was simply designed to restrain solemnization of child marriage without affecting

the validity of marriage. The Preamble of the Act specifically states that the aim of the Act is

'to restrain' the solemnization of Child marriage. How far this object has been achieved, poses

a debatable issue. The word 'restrain' means to keep in check, under control, or within bounds

and is different from "prohibit, - avoid or invalidate." Hence, it is doubtful whether the

validity or invalidity comes within the scope of the Act. Even before the enactment of the

Act, the marriage of a minor duly solemnized had been considered as valid. Marriage under

Hindu Law is a religious ceremony and a sacrament or samskara. Hence when the marriage

rituals are completed by Saptupadibefore the consecrated fire it creates a religious tie, which

once created cannot be undone. Thus completion of the marriage ceremony with rituals is

enough to confer validity to the marriage .

1. The Madras High Court categorically upheld the legal status of Child Marriage even

in 1891. In Venkatacharyulav Rangacharyula71 ,Vaishnava Brahmin girl got

married without the consent of her father. Her mother falsely informed the priest, that the father had given his consent.

Accordingly he performed the marriage with all rituals. The validity of the marriage was questioned on the ground of lack of consent of the father. Declaring the validity of that marriage, the Division Bench pointed out that the person married may be a minor or even of unsound mind, and yet if the marriage rituals are duly solemnized, it is a valid marriage.Thusthe duly solemnized marriage was valid even if the parties to marriage were incapacitated. A perusal of the provisions of the Child Marriage Restraint Act,1929 reveals that it is silent about the validity aspect of child marriage.It only penalizes the solemnization of the child marriages. Whether the judicial response is in tune with the legislative intention is a much discussed issue in various judicial decisions.

2. In Munshi Ram v. Emperor 72, he daughter of one Ram Chander was married to one Munshi Ram's minor son. The marriage ceremony was completed with the observance of all rituals connected with the marriage. The Court painted out that the gaund

ceremony is not a part of the marriage ceremony, and the failure to perform it doesnot affect the completion or performance of the marriage. Considering the validity ofchild marriage,Justice Ganga Nath stressed his view in the following words:

“The Act aims at and deals with restraint of the performance of the marriage. It has nothing to do with the validity or invalidity of the marriage. The question of validity and invalidity of the marriage is beyond the scope of the Child Marriage Restraint Act,1929”. Hence the judges are constrained by the limitations in the Act. Even if the judge feels the omission in the legislation he has no power to fill the gap. The judicial creativism is restricted by the express words used in the statute or by necessary implication. If the omission of the legislature is intentional, the courts have nothing to do with it. The Courts have to delve deep into the words to find out the true purpose and object of the Act at the time of enactment.

3. In the same year, the Andhra High Court also discussed this issue. In Moti v. Ben i73 made a complaint against one Chhotulal that he had kept Beni's daughter Chamelia in wrongful confinement. Chamelia was taken from the custody of Chhotulal and was given into the custody of the mother as per the request of Beni. During the

proceedings it was known that the girl was married to Moti.

Then the Magistrate directed to produce the girl before the court and handed her over to the husband. Against this order an application for revision was filed before the District Magistrate. The District Magistrate had ordered Chamelia to the custody of the mother saying that she was yet a girl of thirteen years and she cannot be legally married and therefore the proper guardian is the mother. 'the matter was referred to the High Court.

While setting aside the order of the District Magistrate, Justice Thomobo observed thatthe court below acted without jurisdiction. He vehemently criticized the remark of the District Magistrate that the marriage of Chamelia with Moti was an illegal marriage. His words reflect the real status of the child marriage and the penal nature of the offence under the Act.

“It is true that celebration of this marriage may have contravened the provisions ofthe Child Marriage Restraint Act, 1929; but marriage of a child is not declared by the Child Marriage Restraint Act, 1929 to be an invalid marriage. The Act merely imposes certain penalties on persons bringing about such marriages”.

4. In 1961, Justice S.P. Mohapatra strongly emphasized the indisputable aspect of the validity of marriage in Birupnkshya Das v. Khujubehare74. The Act does not

invalidate the marriage even though it may be in contravention of the provisions of the Act75. Add frm data

The Hindu Marrige Act was enacted in 1955 and contains the same age limit for bride andbridegroom at par with the Child Marriage Restraint Act,192976. The said Act remains silent about the legal validity of the child marriage and continues the earlier penal policy adopted inthe Child Marriage Restraint Act in case of violation77. The legislative policy adopted by thecolonial Government has been followed even after fifty three ycars of independence withoutany change. The judicial decisions also support the view that the validity of the marriage is not affected by the violation of age rule.

5. In Kalawativ. Devi Ram78, the Judicial Commissioner of Himachal Pradesh declared

that the marriage in violation of the age rule prescribed under the Hindu Marriage

Act,1955would be neither void nor voidable. Judicial Commissioner Capoor

emphatically declared that the minority of the wife or of her guardian itself is not a

ground for getting it declared null and void.

He affirmed his view in his next decision Naumiv. Narotam79. Realising the

unnecessary hardship and consequences of making the child marriage void, the legislature

may have intentionally omitted incorporating any provision dealing with invalidity of child

marriage in the Hindu Marriage Act.

6. InPremiv. Dayararn80. Judicial Commissioner Ornprakash rightly shared this view

saying that it is not the duty of the court to fill the gaps intentionally left by the

legislature.

“A marriage which contravcncs the condition specified in clause (iii) of section 5 of the

Hindu Marriage Act,1955 is not declared void by section 11 of the Hindu Marriage Act,1955

or any other section of the Act. The omission to declare such a marriage to be void by section

11 of the Hindu Marriage act,1955 or any other section does not appear to be merely

accidental. The legislature has provided punishment under section 18 of the Act, for the

breach of the aforesaid conditions. It is not for the court to speculate upon the reasons for the

aforesaid intentional omission. But it may not be that the legislature did not intend to declare

child marriages contravening the condition about age, specified in clause (iii) of section 5 as

void, as though such marriages are discouraged by society and Law, yet the evil is deep

rooted and child marriages are not rare in the country and declaring such marriages as void

must have resulted in unfortunate consequences and unnecessary hardship to the parties”.

7. In another case Ma Hari v. Director of Consolidation81. Justice Sathish Chandra of

the Allahabad High Court observed that the solemnization of marriage in

contravention of the provisions of the Hindu Marriage Act may result in punishment,

yet the marriage would not become null and void and the marriage would remain

valid in Law and enforceable and recognizable in a court of law.

8. Justice S. Acharya of the Orissa High Court shared the same view in Buda Sahu v.

Laburani Sahuni82. However, in Budhanv.Manraj83., , the court adopted the

opposite view while considering the issue of restitution of conjugal rights that the

marriage may not be valid if performed in contravention of the age rule but the

invalidity cannot be pleaded as an answer to a petition for restitution of conjugal

rights. This judicial interpretation which was in sharp contrast to the earlier judicial

trend was discussed in the 59th Report of the Law Commission84 and the Commission

emphasized the general understanding that child marriage is valid.

9. In Mohindev Kaur v. Major Singh85 The Division Bench of the Punjab and Haryana

High Court consisting of JJ Pandit and Gopal Singh vehemently emphasized that the

marriage in contravention of age rule is not a nullity and hence such contravention

cannot be pleaded as a defence to a petition for restitution of conjugal rights. It was

further observed that the infringement of clause (iii) of section 5 did not affect the tie

of marriage and render the marriage either void or voidable.

While deciding a petition on restitution of conjugal rights in Gindan v. Barila86, Justice

Tankha affirmed the validity of the child marriage and the penal nature of the offence8

7. In 1977, the Full Bench of Andhra High Court in VenkataRamana v.State88

overruled the earlier Saramma’s case upheld the validity of' child marriages in

India. In this case the wife had made a complaint against the husband under section

49489 of the Indian Penal Code as he contracted a second marriage. The age of the

husband and wife at the time of marriage was thirteen and nine years respectively.

The defence of the husband was the first marriage as null and void, as it infringed the

age rule as required for a valid marriage and he relied on Saramma’scase.

The Full Bench observed that the violation of clauses (iv) and (v) of section 5 of the

Hindu Marriage Act renders the marriage null and void, where as, it is silent about the effects

of violation of clause (iii) of the section 5 of the Hindu Marriage Act,1955. Neither section 11

nor section 12 makes any reference to the violation of conditions relating to age rule. The

silence of the legislature about the legal effect of violation of clause (iii) except the penal

liability clearly reveals the absence of legislative intention to invalidate child marriage. It\