CHILD MARRIAGE

CHILD MARRIAGE 

CHAPTER 1

INTRODUCTORY CHAPTER

1.1 OBJECTIVE OF STUDY

The objective of the study on this topic is to dissect and give a holistic analysis of the various aspects of the Offence of Child Marriage. This project analysis various provisions related to the offence, under the Indian laws.

1.2 RESEARCH METHODOLOGY

The nature of research methodology adopted for this particular topic is purely doctrinal. I used resources available at the library of Law Faculty (University of Allahabad) and the World Wide Web. Thus, I used secondary data for the successful completion of this project. No primary data has been included.

1.3 FORMATTING METHODOLOGY

The project is in Times New Roman, font Size 16 for the main headings and 14 for other parts of the study with 1.5 spacing. The footnotes are of font size 10 with line spacing of 1.0. Uniform method of footnoting has been followed. 

1.4 SCOPE OF THE STUDY

My aim is to throw light on the Offence of Child Marriage in India and analyse its current position in India. I have analysed the relevant provision in Constitution of India, 1950; Code of Criminal Procedure, 1973; and The Indian Penal Code, 1860; etc.

1.5 CHAPTER SCHEME

·         In the first chapter, I briefly introduced the topic. I has also discussed the objective of the study, research methodology, and scope of the study, chapter scheme and the limitation of the study in this chapter.

·         In the second chapter, the “Overview to Child Marriage” has been discussed, with regards to the historical and the social aspects.

·         In the third chapter, titled “Position of Child Marriage in various personal laws. I elucidated the concept of Child Marriage and the provisions relating to the concept of marriage under the Hindu Law in detail manner but position under various other personal laws are discussed in short.

·         In the fourth chapter, I thrown light upon the present “The legal Status of Child Marriages in India” and its development in India, with the critical analysis of the provisions in Indian Penal Code, 1860.

·         In fifth chapter, the “Conflict of Child Marriage in India with other Statutes are discussed.

·         In sixth chapter, the “Legal effect of Child Marriage” has been discussed in brief manner.

·         In seventh chapter gaps and problems in legal framework relating to child marriages are discussed.

·         In eighth chapter, the “Punishment for the Child Marriage” has been analysed, through which the provisions related to Child Marriage have been developed in India.

·         In the ninth chapter, the problems in the implementation of laws have been outlined, and certain suggestions have also been put forward by the researcher after a few deductions.

1.6 LIMITATION OF THE STUDY

Due to paucity of time and lack of resources, a complete comparative study with law prevalent in other nations could not be undertaken by the researcher. However exhaustive use the internet and library resources for the successful completion of this project.

CHAPTER 2

CHILD MARRIAGE: AN OVERVIEW

Child Marriage 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 girls[1].In many parts of the world especially underdeveloped countries parents give consent to child marriages 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 economic responsibilities.

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 opportunities 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 18[2]. 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 not physically 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 their opportunities 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 of child 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, often based on injustice and unfair economic opportunities, is to a great extent, responsible for the discriminatory practices against women.

Child Marriage is a very common practice in India, especially amongst theuneducated sections of the society, which actually forms a large chunk of the population. In fact 40% of the world’s child marriages occur in India. According to UNICEF’s “State of the World’s Children-2009” report[3] , 47% of India's women aged 20-24 were married before the legal age of 18, with 56% in rural area. The government has taken several steps to eradicate this practice, however it is still being practiced all over the country. There are several legislations on child marriage such as the Child Marriage Restraint Act,1929 and the Prohibition of Child Marriage Act, 2006. However there are certain flaws in theselegislations, and also in the implementation of these laws. In the later chapters the legal issues related to child marriages in India have been discussed extensively.

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

2.1 CONCEPT OF CHILD MARRIAGE IN INDIA:

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 the implications 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 [4]. 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 practiced 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-realization. This leaves child brides more vulnerable to poverty, a consequence of child marriage as well as a cause[5]. 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 control.

2.2 HISTORICAL ANALYSIS OF CHILD MARRIAGE IN INDIA

Child marriages were very common in ancient India. Although child marriages were mostly common among the poor in India, some of the rich people also followed this custom. The child marriage tradition was brought to India in the medieval age by the Delhi Sultans who were ruling India at the time. Due to the major problem of Muslim rebels roaming free in the streets of India, the custom of child marriage was brought into the system to marry the girls off before they reach their marriageable age. This also prevented and protected a girl from losing her virginity before she got married. Girls got married before they started menses, but they lived with their birth parents for a while after the marriage. As soon as the girls started menses, they would be sent over to their husbands' home. It was believed that a father who allows his unmarried daughter, who has started menses to live in his home, is responsible for the sin of abortion that takes place in his daughter's body every month. The custom of child marriage could be started when the mother is pregnant with a child. The parents could promise another set of parents that the baby inside the mother will marry their child. Usually, young girls would get married to older boys or men. For example, a 7 year old girl could be married to a 17 year old boy. There were many positive advantages of child marriage. Parents could decide to whom their children would be marrying. Usually, parents would marry their children to individuals from the same caste as them (rich marry the rich, poor marry the poor).

However, from Middle Age, as states and government developed, the political system elaborated and modified the Indian society gradually. It transformed the lifestyle and opinion of its people from a simple to more complex form, restricting significantly the notion of 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 women were considered irresponsible and irrational in love, parents married them early before they got caught into any scandal. Though, age at which the girl was to be married differed and it was rare for girls younger than 12 to be married in antiquity. Nevertheless, girl brides became younger towards the medieval period, and it became increasingly common for girls as young as 6 or 8 to be married as Indian society. The prime concern of negotiating the marriage was to find out the compatibility between the two families. It was believed during those times that if 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 the daughter stayed with her parents until she attained the age of puberty.

2.3 DATA ANALYSIS OF CHILD MARRIAGES IN INDIA

Child Marriages continue to be a fairly widespread social evil in India. In a study carried out between the years 1998 to 1999 on women aged15-19 it was found that 33.8% were currently married or in a union[6]. This showed that child marriage wasfar more prevalent amongst girls and this highlighted the gender dimension of the problem. The National Family Health Survey of 2005- 2006 (NFHS-3) carried out in twenty-nine states confirmed that 45% of women currently aged 20-24 years were married before the age of eighteen years. The percentage was much higher in rural areas (58.5%) than in urban areas (27.9%) and exceeded 50% in eight states[7]. 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% of women aged 15-19 were already mothers or pregnant at the time of the survey. It was also found that more than half of Indian women were married before the legal minimum age of 18 compared to 16% of men aged 20-49 who were married by age 18. Though NFHS-3 did not compile data on girls who were married below the age of 15, the 2001 Census of India had revealed 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 found that 56% girls had been forced into marriage before the age of 15 and of these 7% were married before they were 10. A second survey conducted in 1998 in the State of MP found that 14 % girls were married between the ages of 10 and 14. In 2006 the Hindustan Times reported that 57% of girls in India are married off before they are 18 as per the International Centre for Research on Women[8].

More than 40 per cent of the world's child marriages take place in India, even though the legal age for wedding is 18, reported UNICEF. Child marriage is of course banned in India and the Indian government has taken a strong step to tighten laws against child marriage, but unfortunately this custom continues to exist in spite of legal interdictions. According to the new bill, Prohibition of Child Marriage Bill 2006, the priests, police or local leaders will be jailed and fined if they will be found indulged in this illegal practice, declared RenukaChowdhury, minister for women and children. This bill grants protection to many children forced into marriage every year in the rural parts of the country. They are forced to consent with their parent's decision or choice. Very often, they are even too young to understand the significance of marriage and do not understand the gravity of the event. Young girls are threatened, bullied, black-mailed and emotionally exploited.

Is India really as modern as it claims to be at present? Has it really evolved into an outstanding nation where women folk have equal rights and command a respectable place in the society?

The reply is of course NO. India is proud to reach the moon today and it boasts about its technological and economic progress, but can the nation be modern and prosperous when children are being sold off for a petty sum of money or forced to marry at a very early age and often wedded to old men literally old enough to be their father and die with child birth and miscarriages. How can the Indian government celebrate the Commonwealth games and spend 6 billion dollars for it, when such an important part of its population are living in misery, and facing deplorable living conditions. How can India be proud of the opening ceremony show with a Rs 80-crore aerostat, the giant helium balloon that glittered in the limelight over the Jawaharlal Nehru Stadium on Sunday the 3rd of October 2010 when thousands of Indian children labour day and night and have no roof or access to education or health care? How many helpless parents are obliged to marry off their minor daughters, some as young as seven years old! No concrete step is taken to fight against child abduction or sexual abuse. The poor and the category belonging to the lower castes are victims of discrimination and deprived of everything, even of their self-dignity! Despite the ban, child marriage is still widespread in Jharkhand, Chhattisgarh, Orissa, Rajasthan, Madhya Pradesh and many other states of India.

Child marriage is a practice which is one of the most serious social maladies affecting the lives and future of India’s youth. The study was done to access the prevalence and incidence of child marriages and analyze the various socio-economic and cultural factors leading to child marriage. Data was collected from 2 selected districts each of the 3 states, namely Rajasthan (Tonk and Jaipur), Uttar Pradesh (Varanasi and Meerut), and Madhya Pradesh (Shajapur and Bhopal) where incidence of child marriage was high according to NFHS-2 data.   In the present scenario, though several people interviewed were aware about the law against child marriages, due to lack of enforcement and political will, they continue to follow the practice. Only when the law is made strict and strong action is taken against those who continue to practice child marriages, can the menace be tackled. Also, all stakeholders, community members, panchayat members, etc. should be sensitized and convinced about the negative impact of child marriage on children, and about protecting the sexual and reproductive health and rights of girls and young women through awareness generation programmes.

2.4 STUDY OF THE CAUSES AND CONSEQUENCES OF CHILD MARRIAGE

2.4.1 Causes of Child Marriage - Child marriage has many causes: cultural, social, economic and religious. In many cases, a mixture of these causes results in the imprisonment of children in marriages without their consent.

Some of the causes are as follows:

·         Poverty: Poor families sell their children into marriage either to settle debts or to make some money and escape the cycle of poverty. Child marriage fosters poverty, however, as it ensures that girls who marry young will not be properly educated or take part in the workforce.

·         "Protecting" the girl's sexuality: In certain cultures, marrying a girl young presumes that the girl's sexuality protected, therefore the girl's family's honour, will be "protected" but ensuring that the girl marries as a virgin. The imposition of family honour on a girl's individuality, in essence robbing the girl of her honour and dignity, undermines the credibility of family honour and instead underscores the presumed protection's actual aim: to control the girl.

·         Gender discrimination: Child marriage is a product of cultures that devalue women and girls and discriminate against them. "The discrimination," according to a UNICEF report on "Child Marriage and the Law," "often manifests itself in the form of domestic violence, marital rape, and deprivation of food, lack of access to information, education, healthcare, and general impediments to mobility."

·         Inadequate laws: Many countries such as Pakistan have laws against child marriage. The laws are not enforced. In Afghanistan, a new law was written into the country's code enabling Shiite, or Hazara, communities to impose their own form of family law--including permitting child marriage.

And in India also laws are there but it is not enforceable in that manner in which it should be.

·         Trafficking: Poor families are tempted to sell their girls not just into marriage, but into prostitution, as the transaction enables large sums of money to change hands.

2.4.2 CONSEQUENCES OF CHILD MARRIAGE

As stated above, Child Marriage is a grave violation of the rights of the child depriving her of opportunities and facilities to develop in a healthy manner to obtain education and to lead a life of freedom and dignity. It deprives the young girl of capabilities, opportunities and decision-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 to early 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 little or no access to health care services. Risks associated with young pregnancy and childbearing include “an increased risk of premature labour, complications during delivery, low birth weight, and a higher chance that the newborn will not survive[9].” Young mothers under age 15 are five times more likely to die than women in their twenties due to complications including haemorrhage, sepsis, preeclampsia/ eclampsia and obstructed labour[10]. Maternal mortality amongst adolescent girls is estimated to be two to five times higher than adult women[11]. Maternal mortality amongst girls aged 15-19 years is about three times higher[12]. 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 sufferinjuries, infections and disabilities, which usually go untreated and some of which are lifelong”[13]. Research further indicates that the babies of mothers below the age of 18 tend to have higher rates of child morbidity and mortality. “Infants of mothers aged younger than 18 years have a 60 per cent greater chance of dying in the first year of life than those of mothers aged 19 years or older [UNICEF 2007].” Babies are born premature or underweight or young mothers simply lack parenting skills and decision-making powers[14]. Secondly, young girls face the risk of infection with sexually transmitted diseases including HIV. Young brides who run away from early marriages may end up as sex workers or eventually resort to use sex work as a way of earning additional income. Young brides also run the risk of catching diseases from their respective spouses, as older husbands often engage in sexual relations with other women outside the marriage. Young married girls do not have bargaining power in the marriage and therefore cannot negotiate safe sex and are deemed vulnerable. It has also been found that young girls are physiologically more prone to contracting HIV/AIDS, as her vagina is not well lined with protective cells and her cervix may be more easily eroded.

An analysis of the HIV epidemic shows[15] that “the prevalence of HIV infection is highest in women aged 15–24 and peaks in men between five to ten years later.” Women also undergo 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 below the age of 15, with the youngest being married at 7 years old, findings revealed that this age group had “one of the highest rates of vulnerability to sexual violence in marriage, second only to those whose dowry had not been paid.” The women interviewed said they had sexual intercourse before menstruation had started, that sex was early and very painful, and “many still continued to be forced into sexual activity by their husbands.” [16]Additionally the young girls “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 than their 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 and they are often denied property rights, and other rights. Child widows have little or no education 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 go[17]. 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 Marriage[18].

CHAPTER 3

POSITION OF CHILD MARRIAGE ACT VIS-À-VIS PERSONAL LAWS:

For a critical understanding of child marriages in India, a thorough examination of the gaps and commonalities in criminal and marriage legislations is essential. Therefore, a reading of the Child Marriage Act, 2006, needs to take into account the implications of the various personal laws and the secular law on marriages. The provisions of the Child Marriage Act, 2006, are further diluted due to personal laws on marriage.

3.1. CHILD MARRIAGE AND 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 of marriage, 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 Marriage[19] 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 by both 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. It is 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 law[20].

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 fact[21]37. 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, subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction[22]38. 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 Voidable Marriage is a perfectly valid marriage so long as it is not avoided. A

Voidable marriage[23]39 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 the parties,the childrens 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 years[24].

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 herself[25].

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 MarriageAct, 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 marriage[26]”. But such a policy of law that non- age does not render the marriage void or voidable. 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 undisturbed[27].

The rationale behind this policy is that minor marriages in our country are still so rampant that if we would lay down that non-age rendered 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 conditions are fulfilled, 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 disorder of 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 twenty-one 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 custom or 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.

To conclude, the position under Hindu Marriage Act is that a Hindu girl above 18 years of age can marry on her own, without obtaining the consent of the guardians. But if she is below 18 years of age she cannot marry even with the consent of guardians. Hindu Marriage Act does not recognize the right of guardians to marry off their children below the prescribed age limit and provides punishment to the bride and the groom if marriage is performed in contravention of the age provision.  However, such a marriage is valid in the eyes of law and produces all legal effects, as Hindu Marriage Act is silent regarding the legal effect of an under-age marriage.  A minor wife has a choice to seek divorce on the ground of under-age marriage on attaining the age of eighteen years. But she can obtain divorce only if the marriage was performed when she was below the age of fifteen.

3.2 Muslim Law:

The Muslim law on marriages lays down the age of puberty as the age of marriage. However, as per Section 2(vii) of the Dissolution of Muslim Marriages Act, a Muslim woman can dissolve her marriage if it was performed before she attained 15 years of age, but she has to repudiate her marriage before attaining the age of 18 years, pro- vided the marriage has not been consummated.

3.3 Christian Law:

In both Muslim and Christian marriage laws, consent of the guardian is essential for a minor’s marriage. Section 3 of the Christian Marriage Act, 1872, defines a minor as a person who has not completed 21 years. As per Section 19 of the Act, consent of father, or guardian, or mother is mandatory for marriage of minors, therefore the Act does not invalidate minor marriages.

3.4 Special Marriages Act:

On the other hand, the Special Marriages Act, 1954, is the only Act where child marriages are void; Section 4(c) states that the male must have completed 21 years of age and the female 18 years for a valid marriage

CHAPTER 4

The LEGAL STATUS OF CHILD MARRIAGES IN INDIA: AN ANALISIS

4.1THE 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 times[28]. Some Indian scholars question the existence of child marriage in ancient India, but in most religious texts the father was urged to marry of his daughter at a very young age. Most religious texts recommend[29] ages between 8 to 10 as the ideal age for marriage.

Sage Manu, in his Manusmritihas categorically written[30] that if a girl remains unmarried after Reaching 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. 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 case 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.

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.

A.     THE OBJECTIVE AND REASONS OF THE ACT:

The Child Marriage Restraint Act, 1929 was passed during the tenure of British rule on prepartition India. It forbade the marriage of a male younger than twenty-one or a femaleyounger 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 Marriage[31], the Child Marriage Restraint Act waspassed 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.

B.     THE MAIN PROVISIONS OF THE ACT:

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.

·         The Act lays[32] 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.

·         Section 6 of the Act, provides[33] 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 or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine.

·         Section 7 provides[34] 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.

·         The Act lays down[35] 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.

·         The Act lays down the provisions[36] 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.

4.2PROHIBITION OF CHILD MARRIAGE ACT, 2006

In the pre-Independence period, the debate on the age of consent was closely related to the campaign for legislation on child marriages. This continued into the 20th century, with the CMRA in 1929 also known as the Sarda Act. The aim of the Act was to restrain solemnisation of child marriages. The Act rose the minimum age of marriage for girls to 14 years and for boys to 18 years. The Act was amended in 1949, raising the minimum age of marriage for girls to 15 years; and again, in 1978, to raise the minimum age for girls to 18, and that of boys to 21 years. The CMRA was a result of sustained pressure by social reform groups and individuals. However, the objectives did not cross the boundaries of sexual consideration. They merely focused on the appropriate age for a husband to have sexual relations with his wife. There was no reference to the negative effects on the development of a girl child or her free consent.

The Child Marriage Act, 2006, replaced the CMRA. The purpose of the Child Marriage Act, 2006, is not simply to restrain but prohibit child marriages. It lays down the minimum age for marriage as 21 for males and 18 for females. The anomaly of two different ages at marriage for women and men was raised before the Parliamentary Standing Committee, while some members opposed this; the government commented that “for the purpose of marriage, two different ages have been accepted socially as well as culturally in the country”.

Section 3 of the Child Marriage Act, 2006, provides that a child marriage will be rendered voidable only if the children or their guardians file legal proceedings. It is unlikely that any such case will be filed given the societal norms that surround it .

Under Section 3(3), a petition for annulment of the marriage by the contracting party who was a child at the time of marriage may be filed any time, before (the child filing the petition completes) two years of attaining majority, which allows a male of 23 years and female of 20 years to file a petition. But it is unlikely that these child brides or their families will choose to nullify their marriages, as by the time they decide to go to court their marriages would have been consummated.

The Act, under Section 12, lays down that child marriages will be void only in three cases:

       I.            When the girl is “enticed out of the keeping of the lawful guardian”;

    II.            In cases of compulsion or deceitful means; and,

 III.            For the purpose of trafficking.

These correspond to the provisions under various matrimonial laws where the lack of valid consent is grounds for annulment of marriage. This section validates other forms of customary and traditional child marriages, which remain voidable and valid till invalidated by the contracting party.

Section 14 of the Act states that child marriages performed in contravention of injunction orders issued, under Section 13, whether interim or final, will be void. A magistrate based on a complaint or even suo-motu cognizance of a report regarding child marriage being arranged can issue these injunctions. It obligates the district magistrate to prevent solemnization of mass marriages, while acting as a child marriage prohibition officer. The Act legitimizes children born out of child marriages and ensures protection in the form of maintenance and custody, both for the minor girl and her child.

Registration of marriages  is not addressed in the Child Marriage Act, 2006, but the Andhra Pradesh Compulsory Registration of Marriages Act, 2002, is strongly taken up in the state rules. The child marriage prohibition officer has to ensure “scrupulous adherence” to the Andhra Pradesh Compulsory Registration of Marriages Act, 2002, as per the Andhra Pradesh Prohibition of Child Marriage Rules, 2012.

Moreover, the Law Commission also recommends “registration of marriage be made compulsory.”

Some of the Salient features of the Prohibition of Child Marriage Act, 2006 can be listed as :

       I.            Child marriages to be voidable at the option of contracting party being a child.

    II.            Provision for maintenance and residence to female contracting party to child marriage.

 III.            Custody and maintenance of children of child marriages.

 IV.            Legitimacy of children born of child marriages.

    V.            Power of district court to modify orders issued under section 4 or section 5.

 VI.            Punishment for male adult marrying a child.

VII.            Punishment for solemnising a child marriage.

VIII.            Punishment for promoting or permitting solemnisation of child marriages.

 IX.            Marriage of a minor child to be void in certain circumstances.

    X.            Power of court to issue injunction prohibiting child marriages.

 XI.            Offences to be cognizable and non-bailable.

XII.            Appointment of Child Marriage Prohibition Officers.

CHAPTER 5

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

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 marriage.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 years. On the other hand, if the girl is not the wife of the man, but is below sixteen, then the sexualintercourse even with the consent of the girl amounts to rape? It is rather shocking to note thespecific 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 guardian 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) reflects the implied legislative acceptance of the child marriage.

Criminal Procedure 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 her.

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.

CHAPER 6

LEGAL EFFECT OF CHILD MARRIAGE

Child Marriage Restraint Act is silent about the legal effect of a child marriage. It does not mention whether child marriage is valid, void, or voidable. Under all the religion based personal laws of marriage a child marriage is a valid marriage. Only the civil law of marriage, Special Marriage Laws, declares it to be void. As discussed earlier, it is one of the reasons for the failure of Child Marriage Restraint Act. For eradication of the evil of the child marriage, it is necessary that Child Marriage Restraint Act should be amended so as to make compliance with the prescribed age at marriage as an essential mandatory condition.  In case of breach of this condition, the marriage should be declared null and void having no legal effect.

Such a declaration would, however, have adverse consequences for married adolescent girls. To avoid such an outcome, it would be helpful to stipulate a specific initial period, say ten years, when a child marriage, could be made voidable at the option of the child bride. After that period any child marriage carried out could be made void ab initio, that is to say, from its very inception. To avoid inconsistency with Child Marriage Restraint Act and the religion-based personal laws of marriage, child marriage should be declared void under personal laws too. As an additional precaution, an independent section, with a non-obstantee clause, defining the scope of Child Marriage Restraint Act, should be added to Child Marriage Restraint Act giving it overriding effect over the personal laws. Such a section should expressly oust the application of other marriage laws.  To protect further the interests of the young girl whose marriage would become void on the ground of age, the personal laws of marriage should recognize her right to claim maintenance from man to whom she was married and from his parents.

CHAPTER 7

GAPS AND PROBLEMS IN LEGAL FRAMEWORK RELATING TO CHILD MARRIAGES:

The issue of child marriage is addressed in jurisprudence in three ways:

a)      First, in the context of “age of discretion”- in relation to habeas corpus petitions in cases of “elopement or love marriages”, where approval from parental authority is lacking.

b)      Second, in relation to “enticement of girls from lawful guardianship”, which is grounds for declaring child marriages void, even with the minor’s approval.

c)      The third is in relation to Muslim personal laws that hold the “age of puberty” as the age of marriage, which has been contested in a recent case on child marriage.

However, what is surprising is the absence of cases of forced child marriages of girls with older men with parental approval. This is because “the patriarchal bastions are too strong and well-fortified for a modern feminist discourse to enter and change social mores through legal dictates.”

The figures from the National Crime Records Bureau (NCRB), 2005, indicate that out of 122 cases of child marriages reported under the CMRA 2005, about 45 resulted in a conviction. The report of the Law Commission (2008) highlights that from the earliest cases, high courts and the Supreme Court have upheld the validity of child marriages.  These include judgments like “Durga Bai v. Kedarmal Sharma” , “Shankerappa v. SushilaBai” , “Rabindra Prasad v. SitaDass”  and others.

1. “AGE OF DISCRETION”- IN RELATION TO “ELOPEMENT OR LOVE MARRIAGES” & “ENTICEMENT OF GIRLS FROM LAWFUL GUARDIANSHIP”

AmrinderKaur and Another v. State of Punjab. was a case of a runaway couple seeking protection under Article 21 of the Constitution as they were being threatened by the girl’s family. The minor girl of 16 years got married as per Sikh rites to a Jat man of 21 years; her counsel argued that since she has attained the age of discretion, her marriage is not void. The couple married without approval from the girl’s family and the girl’s father lodged a complaint that a man in his neighbourhood, along with his parents, had kidnapped his daughter with the intention to marry her.

The Court, referring to prior judgmentson the issue, held that none of the referred judgments took into consideration the provisions of the Child Marriage Act, 2006, which came into force in 2007. Relying on Sections 2(a), (b) and 12(a) of the Child Marriage Act, 2006, the Court held that the marriage is child marriage, as the petitioner is 16 years and two months old, who has been enticed out of the keeping of the lawful guardian and cannot, contract the marriage; therefore, her marriage shall be null and void. The Court held that in the garb of providing police protection it cannot declare the void marriage as valid. The Court stated, “the life and liberty of the petitioners is only endangered and threatened by the girl’s family so long as their marriage legally subsists, but once their marriage is declared to be void, there is no threat to their life and liberty”.

Unlike cases under the CMRA, the Court in this case took note of the Child Marriage Act, 2006, and held that underage marriages between 16 and 18 years, even with the consent of the girl, are void and cannot be provided protection.

The other high courts have, however, taken a slightly differently position with regard to “elopement marriages”. Such cases of elopement are usually filed under the writ of habeas corpus or under Section 363 of the IPC, which deals with kidnapping of minors. A reading of a few “elopement” or “love marriage” cases reveals that courts have, at least in a few instances, up- held these marriages based on the consent of the minor woman. What also comes out in such cases of “enticement from the lawful keeping of the father” is the issue of guardianship, whether the husband can be guardian of a minor wife.

In Jitender Kumar Sharma v. State and others ,both Poonam and Jitender were minors, who eloped and married under the HMA. The Delhi High Court, in deciding the validity of such marriages, stated, “Merely on account of contravention of Section 5(iii) of the HMA, Poonam’s marriage with Jitender is not void under HMA or the Child Marriage Act, 2006. It is, however, voidable, as now all child marriages are.” Similarly, in deciding the custody of Poonam, the courts read together Sections 17, 19, 21 of the Guardians and Wards Act, 1890, and Sections 6 and 13 of the HMA and took a broad, tolerant view that the welfare of the minor (who is old enough to make an intelligent preference) is paramount. Talking about Poonam’s guardianship, the court held that Poonam’s natural guardian was now her husband and not her father, and that no one else can take that place until and unless her husband is found to be unfit to take that responsibility. The court upheld the girl’s right to life and liberty in allowing her to choose her guardian and categorically stated that she cannot be forced to live in NariNiketans or with her parents just because she is a minor.

The court highlighted the distinction between child marriages, where children are forced into them, and modern-day marriages, where minors fall in love and marry out of their own free will. As the courts put it:

“The sooner the legislature examines these issues and comes out with a comprehensive and realistic solution, the better, or else courts will be flooded with habeas corpus petitions and judges would be left to deal with broken hearts, weeping daughters, devastated parents and petrified young husbands running for their lives chased by serious criminal cases, when their sin is that they fell in love.”

The full bench of the Madras High Court in T Sivakumar v. (1) Inspector of Police, Thiruvallur Town Police Station; (2) Anbu; (3) Samandan ,revisited the issue of runaway/elopement marriages and addressed five pivotal questions:


1)      Whether a marriage contracted by a person with a female of less than 18 years could be said to be a valid marriage and the custody of the said girl can be given to the husband (if he is not in custody)?


2)      Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?

3)      If yes, can she be kept in the protective custody of the state?

4)      Whether in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 a minor girl, who claims to have solemnised her marriage with another person, would not be a juvenile in conflict with law, and whether in violation of the procedure mandated by the Juvenile Justice Act, the court dealing with a writ of habeas corpus has the power to entrust the custody of the minor girl to a person who contracted the marriage with the minor girl and thereby committed an office punishable under Section 18 of the HMA and Section 9 of the Child Marriage Act, 2006?


5)      Whether the principles of Sections 17 and 19(a) of the Guardians and Wards Act, 1890, could be imported to a case arising out of the alleged marriage of a minor girl, admittedly in contravention of the provisions of the HMA?

Sivakumar, father of minor girl, Sujatha, 17 years old, filed a petition of habeas corpus demanding custody of the child. Sujatha in her affidavit stated that she had fallen in love with Anbu and that she was being forced by her parents to marry her uncle. Referring to earlier high court judgments ,the division bench held that marriage contracted with a minor girl is voidable until a competent court under Section 3 of the Child Marriage Act, 2006, annuls it. The court said that the marriage is not valid in a strict sense but it is not invalid either. The male contracting party shall not enjoin all the rights, which would otherwise emanate from a valid marriage, but only limited ones.

The court held that the adult male contracting party to a marriage with a female child shall not be the natural guardian of the female child, in keeping with the provisions of the Child Marriage Act, 2006; nor will he be entitled the custody of the female child, even if she expresses her desire to go to his custody. However, as an interested person in the welfare of the minor girl, he can apply to the court to set her at liberty if she is illegally detained by anybody. In habeas corpus proceedings, while granting custody of a minor girl, her welfare and safety is paramount, notwithstanding the legal right of the person who seeks custody.

Talking about the “age of discretion”, the court held that this is a question of fact which each court has to decide based on the facts and circumstances of the case. Most importantly, the court stated that if the girl expresses her desire not to go with her parents, provided, in the opinion of the court, she has the capacity to determine, the court cannot compel her to go to the custody of her parents and instead may entrust her in the custody of a fit person subject to her volition.

The really significant aspect of this judgment is that while the court did not allow her to cohabit with her adult husband, it also upheld the minor girl’s decision to not stay with her parents. Employing the “age of discretion” to decide in the best interest of the child, the court held that in such habeas corpus petitions the decision of the minor would be taken into account.

2. “AGE OF PUBERTY” AS THE AGE OF MARRIAGE IN MUSLIM PERSONAL LAWS:

The third category of cases is in relation to Muslim personal laws that hold the “age of puberty” as the age of marriage.In the recent case ofMrs. Tahra Begum v. State of Delhi and Ors, the Delhi High Court held that a Muslim minor girl could marry in accordance with the principle of the “Option of Puberty” or khiyar-ul-bulugh. However, in accordance with this very principle, the minor girl may also choose to repudiate the marriage upon attaining majority. In this case, the minor girl clearly expressed her choice to reside with her husband and the court upheld her agency and choice, over age and minority status. This case has revived the debate about the interplay between the Child Marriage Act, 2006, and the various personal laws. However, in a recent full bench,the decision of the Delhi High Court held that The Child Marriage Act is a secular law, which specifically deals with the problem of child marriages. Religion of the contracting party does not matter. Being a “special Act” and being a subsequent legislation will override the provisions of HMA Act or for that matter any personal law. However, this should not be interpreted that we have held that a petition for dissolution of marriage under Section 13(2)(iv) is not maintainable. Both provisions, i.e., Section 13(2)(iv) and Section 3 operate, apply and have their own consequences. These are two concurrent provisions, which can be invoked by the ‘parties’ satisfying the conditions stipulated in the two sections.

CHAPTER 8

PUNISHMENT FOR CHILD MARRIAGE

The curse of child marriage has, over the years, played a ridiculously important role in shaping the mindset of the society and its people. The marriage of a child before he attains a particular age is not only a factor detrimental to his values and childhood, but also to his health and education. As far as the punishment for the crime of Child Marriage is concerned, then it is decided according to the provisions in the Prohibition of Child Marriage Act, 2006.

8.1 PUNISHMENT UNDER THE PROHIBITION OF CHILD MARRIAGE ACT, 2006

Child marriage has been an issue in India for a long time. Because of its root in traditional, cultural and religious practices it has been a hard battle to fight. Child marriage is also associated with other problems like dowry and child widowhood.  It is also associated with malnutrition, poor health of mothers and high fertility and hence over-population. The following is an overview of the act.

According to the act a child is a male who has not completed twenty one years of age and a female who has not completed eighteen years of age. Child marriage is a contract between any two people of which either one or both parties is a child.  Child marriage that took place before or after this act can be made void by the person who was a child at the time of marriage. But the marriage must be voided before the person who was a child completes their second year of maturity.

The Child Marriage Restraint Act, 1929 has been repealed and the major provisions of the new Act include:

·         Age of marriage for boys is 21 and 18 for girls and any marriage of persons below this age is child marriage - illegal, an offence and punishable under law.

·         Every child marriage shall be void if so desired by either the bride or the groom who was a child at the time of the marriage.

·         The Court while granting nullity shall make an order directing the parents and guardians to return the money, ornaments and other gifts received.

·         The Court may also make an order directing the groom or parents or guardian to pay maintenance to the bride until her remarriage.

·         The Court shall make an appropriate order for the custody and the maintenance of the offspring of child marriages.

·         Notwithstanding that a child marriage has been annulled, every offspring of such a marriage shall be deemed to be a legitimate child for all purposes.

·         Any person arranging, party to, solemnizing, participating in a child marriage is also liable to be punished under the Act, including mass marriages.

If a male adult above eighteen years contracts a child marriage shall be punishable unto two years imprisonment and/or a fine with may extend to Rs. 1 lakh. The same punishment will be given to person who performs, conducts or directs a child marriage. Unless proved otherwise, the parents or guardian of the child are considered to have failed to prevent the child marriage and hence are also held accountable.

There are certain situations in which a child marriage is deemed void even without a petition from one of the parties. If a child was detained away from her/his parents or guardians, forced to go to a different place, sold into marriage, or made to marry after which they are used for immoral purposes or trafficked then that marriage is considered to be null and void.  The court has the power after the application of an officer or any person to issue an injunction prohibiting a suspected child marriage against any person, including a member of an organization or an association of people. The court may also act against a suspected child marriage on its own motion but must provide the person/association with time to respond to the injunction. Ignoring a notice or injunction is a punishable offence. If the marriage is still carried out after the injunction, it is automatically voided.

The act calls for the instatement of a Child Marriage Prohibition Officer, who is responsible for ensuring no child marriage takes place in their jurisdiction by approaching the courts for an injunction, collecting evidence against people, creating awareness about the negative effects of child marriage, collect data concerning child marriages, etc. A child marriage prohibition officer is deemed a public servant in this act.

Rules of this act are to be made by the respective state governments. The act calls for the Hindu Marriage Act, 1955 to be amended to meet its provisions as well as the repeal of The Child Marriage Restraint Act, 1929.

CHAPTER 9

IDENTIFICATION OF PROBLEMS, SUGGESTIONS&CONCLUSION

Child marriage in India has been practiced for centuries, with children married off before their physical and mental maturity. The problem of child marriage in India remains rooted in a complex matrix of religious traditions, social practices, economic factors and deeply rooted prejudices. Regardless of its roots, child marriage constitutes a gross violation of human rights, leaving physical, psychological and emotional scars for life. Sexual activity starts soon after marriage, and pregnancy and childbirth at an early age can lead to maternal as well as infant mortality. Moreover, women who marry younger are more likely to experience domestic violence within the home.

The problems which occur in the child marriage in India are because it has the dubious distinction of being home to nearly 40 per cent of all child brides in the world despite its adverse consequences such as malnutrition, pregnancy-related deaths and child mortality.

This fact was highlighted by Breakthrough, a human rights organisation, as it launched a campaign in the city on Tuesday to curb child marriages by addressing it as a societal malaise. The ‘Nation Against Early Marriage’ campaign was launched at the Ford Foundation here.

Some suggestions which are to be followed to abolish the child marriages :

·         Increase awareness generation:All stakeholders should be sensitized and convinced about the negative impacts of child marriage.

·         Gender sensitization programs: Gender training programs should be spread throughout the district for police and NGOs. Primary and secondary education for girls should be promoted.

·         Checking loopholes in the law: Shortcomings must be corrected to strengthen the law.

·         Training: Child Marriage Prevention Officers need to be trained for vigilance.

·         Special police cells: Task forces must be set up to focus on cases of child marriage.

·         Increased authority for NGOs: NGOs should be given the authority to report and intervene in cases of child marriage.

·         The issue of child marriage should not be restricted to the Women and Child Development Ministry but also needs to be taken up seriously by other ministries such as the Health and Education, Secretary of the Women and Child Development Ministry.According to the National Family Health Survey III (2005-2006), around 46 percent of women in the age group of 18-29 were married before reaching the legal age of 18. While the rate of child-marriages reportedly dropped to 46 percent in 2006, in some states child marriage prevalence still exceeds 50 percent.The highest rates have been found in Bihar (64 pc), Rajasthan (58 pc), Jharkhand (60 pc), Madhya Pradesh (53 pc), Uttar Pradesh (52 pc), Chhattisgarh (51 pc), Andhra Pradesh (56 pc) and West Bengal (53 pc).

·         What is important is the legal and rights implications of choices these young women make. Feminists have debated the issues of the age at marriage and the age of consent. It is important to note that fixing a mandatory age at marriage would serve as a double-edged weapon because while on the one hand it would prevent pre-pubertal marriages, on the other it would impinge upon the right of minor girls who have attained the age of discretion to choose a partner and marry. As the cases presented in the earlier sections show, there are minor girls who are forced into alliances; at the same time, there are in- stances where they are hounded with habeas corpus petitions for marrying a person of their choice. What then can be the way out for the girls, while not endorsing the idea of legalising marriages in the age group of 16-18 years? This is the grey area that needs to be addressed by society rather than legislatures alone.

·         Allowing girls’ freedom in relationships and sexual autonomy is important; however, does this mean that marriages should be legalised at the age of 16 years? This brings us to the following question: what is the age at which girls are capable of exercising choice? Courts have employed the “age of discretion” test in many judgments but the problem emerges when one tries to answer whether the recognition of age of discretion has been common across the board, in all cases? There is a visible elasticity in ascertaining “age of discretion” and judgments differ despite similar facts. In most cases, the age of discretion has been employed when young girls of 16-18 years have exercised their choice in the matter of sexual relationships, and parents have objected to such relationships. Fixing the age for marriage at 18 is not problematic from the standpoint of pre-pubertal marriages; it becomes a concern when one starts conflating age at marriage and age of consent, thereby negating any form of sexual freedom that young girls below that age group can exercise. However, lowering the bar from 18, as the age at marriage would give families free access to perform arranged marriages or forced marriages, thereby increasing child marriages.

·         Child Marriage Act, 2006:While there is a long history of resistance to pre-pubertal and mass child marriages, one needs to re-examine the Child Marriage Act, 2006, vis-à-vis the criminal law provisions of the IPC. The IPC fails to address the discrepancy in the age of consent at the time of rape and the age of consent for rape within a marriage, which constitutes discrimination against women- especially married women- and has severe implications for child marriages in India. Non- recognition of the rape of a wife, who is 15 years old, by her husband, limits the control women have over their sexuality. This ad- verse situation is exacerbated by the rather mild punishment of two-year imprisonment that is awarded in the case of rape by a man of his wife who is above 12 years but below 15 years of age.

·         The recent legislation on the Protection of Children from Sexual Offences Act, 2011, aims to protect children from offences of sexual assault, sexual harassment and pornography and provides for the establishment of special courts for trials of sexual offences. This is the first legislation regarding sexual offences committed against children; it protects them from sexual exploitation and abuse by adults. While protecting children from adults, the law also criminalises sexual exploration among children who are 16 to 18 years of age. Children need protection from various forms of violence, exploitation and abuse, as stated in the Act but the fear of violence should not take away their right to discover their sexuality and to take charge of their bodies. It is within this grey area be- tween age and agency that the debate on child marriage is located.

·         Another pertinent point is punishment under the Child Marriage Act, 2006, which is a combination of rigorous imprisonments and fines. To whom do these punitive measures apply? Under Sections 10 and 11(1), whoever performs, con- ducts, directs or abets any child marriage shall be punishable under the Act. Therefore, any family member, institution or association of persons can be held liable for punishment under the Act. While punitive measures are important to highlight the problem of child marriage, how logical are these punishments? The NCRB 2012 records on child marriage reveal low conviction rates. Moreover, girls forced into child marriages are fearful of approaching the authorities, lest their parents are imprisoned and fined. It is important to revisit these questions to understand who is liable for the practice of child marriage rather than focusing on the quantum of punishment itself and whether the punishment under the Act is logical and can help combat the practice of child marriage.

·         Though our courts have been progressive in some of their judgments, by not penalising the girls bordering majority (between 16 and 18 years) for their consensual underage marriage, our society has been less accepting of such marriages and has victimised such girls. Another disturbing trend seen is the attitude of society towards girls who have experienced early marriages and who are now trying to find their feet again. Recent newspaper reports have highlighted that at least two girls aged 17 years were denied admission due to child marriages fearing they would set a bad ex- ample for other students or discuss familial matters in school.

·         The high incidence of child marriages in India remains a major concern despite efforts by various child rights and women’s rights groups. The National Plan of Action for Children 2005 set out a goal to eliminate child marriage completely by 2010. Though that timeline is long over and the plan has failed to address child marriages, there are several states like Andhra Pradesh that have recently issued the necessary rules and guidelines to implement the provisions of the Child Marriage Act, 2006 (The Asian Age 2012) which came into force in November 2007. After a gap of five years, rules have been issued in the state and till date no appointments of child marriage prohibition officers have been made, highlighting the lack of political will and initiative on the issue.

·         Non-governmental organisations (NGOs) have played a proactive role in working towards the prevention of child marriages through counseling and awareness generation. One such successful instance is the Child Line 1098 service, which has been able to successfully prevent child marriages in the state of Andhra Pradesh. A case in point is Srikakulam district of Andhra Pradesh where 18 cases have been dealt with, with the aid of the helpline.

The CEDAW Committee in its concluding observations in 2007 recommended that India take up comprehensive, effective and stringent measures aimed at eliminating child marriages and protection of human rights of the girl child. Provisions of the constitution, regarding non-discrimination on the basis of sex, equal protection of the law, equality before the law, and the protection of life and personal liberty safeguard this right and temper the interpretation of the entire range of special and religious laws. However, despite the framework of national and international legal protection, this right has proved to be one of the most complex and difficult to put into practice in the sociocultural context of India (National Alliance for Women 2006).

Inconsistency in the different personal laws regarding the legally permissible age at marriage, the option of puberty in personal laws, and judicial computation of the age of discretion inhibits implementation of the Act, but at the same time have been successful and upheld consensual marriages with choice of partner.

While it is important to implement the provisions of the Child Marriage Act, 2006, it is also important to ensure children’s right to life with liberty and non-discrimination; provide spaces where children can explore and understand their sexuality, even while they are protected from practices like forced child marriages. Moreover, laws alone cannot address the problem of child marriages; there must also be adequate support, information dissemination and capacity enhancement from various quarters.

BIBLIOGRAPHY

BOOKS REFERRED

1.      Mahmood, Tahir. “The Muslim Law of India”, New Delhi, Allahabad, 1990. P.49; Tyabji, F.B. “Muslim Law”, 4th edition, Bombay 1968. P. 52.

2.      Hidaytullah, M. “Mulla Principles of Mohamedan Law”. Bombay, 19th edition, 1990, P.233.

3.      Tyabji, F.B. “Muslim Law”, 4th edition, Bombay 1968. P. 51-52.

4.      S.N.Mishra, Indian Penal Code, 2012 edition CLP

5.      Keshri, U.P.D..Mordern Hindu Law, 2012 edition CLP

ARTICLES REFERRED

1.      Centre for Social Research and National Institute of Public Cooperation and Child Development. A Study on Child Marriage in India: Situational Analysis in Three States. 2008.

2.      Gupta, Pallavi. “Child Marriages and the Law: Contemporary Concerns.” Economic and Political Weekly. Vol XLVIII, No. 43. October 27, 2012

3.      Law Commission of India, 172nd Report. “Review of Rape Laws”. March 2000.

4.      Law Commission Report no. 205. “PROPOSAL TO AMEND THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND OTHER ALLIED LAWS” (Law Commission of India 2008: 7)

5.      Murty, K.S.N. “Marriage of Hindu Minors”, (1969) AIR Journal 72-75.

WEB RESOURCES

1.      “Child Marriages in India”. www.studymode.com/essays/Child-Marriages-In-India-132188.html. 2008. Web, February 24, 2015.

2.      “Child Marriage around the World”. International Center for Research on Women (ICRW). www.icrw.org/child-marriage-facts-and-figures.  2015. Web. February 24, 2015

3.      “Child Marriage in India”. Centre for Social Research. www.csrindia.org/index.php/child-marriage-in-india. Web. February 24, 2015

4.      “Child Marriage in India-An Analysis of available data (2012). UNICEF. www.unicef.org/india/resources_8230.htm.  2012 Web. February 24, 2015

5.      “Child Protection and Child Rights”. Child Line 1098. www.childlineindia.org.in/child-marriage-india.htm. 2011. Web. Thursday, February 24, 2015

6.      “Child Protection and Child Rights”. www.childlineindia.org.in/Prohibition-of-Child-Marriage-Act-2006.htm . 2012. Web. ,March 20 , 20

7.      “Child Marriage: UNICEF Information Sheet”. United Nations International Children Emergency Fund (UNICEF). www.unicef.org/india/Child_Marriage_Fact_Sheet_ Nov2011final.pdf. 2010. Web. March 20 , 2015.

8.      “Child Marriage: Girls 14 and Younger at Risk”. International Women’s Health Coalition. www.iwhc.org/index.php?option=com_content&task=view&id=3487&Itemid=629. 2011. Web. March 20 , 2015.

9.      “Child Marriage: A Violation of Human Rights”. International Humanist and Ethical Union.www.iheu.org/story/child-marriage-violation-human-rights. 2007 Web. March 20, 2015

10.  “Child Marriage”. www.forwarduk.org.uk/key-issues/child-marriage. March 20, 2015

11.   “Child Marriage Factsheet”. www.equalitynow.org/node/868. 2007. March 20, 2015

12.  “Child Marriage”. International Center for Research on Women. www.icrw.org/what-we-do/adolescents/child-marriage. 2012. Web., April, 2 2015

13.  “Child Marriage and the Law”. United Nations International Children Emergency Fund (UNICEF).www.unicef.org/policyanalysis/files/Child_Marriage_and_the_Law%281%29.pdf. 2008. Web. April, 2 2015.

14.  “Ending Child Marriage: A Guide for Global Policy Action”. International Planned Parenthood Federation and the Forum on Marriage and Rights of Women and Girls. www.unfpa.org/upload/lib_pub_file/662_filename_endchildmarriage.pdf.2006. Web. April, 2 2015.

15.  “History of Child Marriage and solutions to prevent Child Marriage”. childblossom.blogspot.in/2011/04/child-marriage-i-n-earliest-known-india.html.web.April, 2 2013.

16.  “History of Child Marriage in India”. www.terredasie.com/terredasie_v3/Articles/child-marriage-in-india.htm. 2010. Web. April, 2 2013.

17.  “National Institute of Public Cooperation and Child Development”. www.wcd.nic.in/ar0708/English/Chapter-8.pdf. 2008. Web. April, 15, 2013.

18.  “Need to Curb Child Marriages Stressed”, www.thehansindia.info/News/Article.asp? category=5&subCategory=2&ContentId=71524.2012. Web. April, 15, 2013.

19.  “Prevalence of Child Marriage in India”. National Institutes of Health, US National Library of Medicine. www.ncbi.nlm.nih.gov/pmc/articles/PMC2759702/.2009. Web. April, 15, 2013.

20.  “The Prohibition of Child Marriage Act, 2006”. All India Christian Council. www.hsph.harvard.edu/population/trafficking/india.childmar.07.pdf. 2007. Web. April, 15, 2013.

---

[1]“Child Marriage”,http://www.unicef.org/protection/files/Child_Marriage.pdf.

[2]“The Challenge”, http://www.childinfo.org/marriage.html.

[3]http://www.unicef.org/sowc09/report/report.php

[4]International Center for Research on Women (ICRW) Policy Advisory on Child Marriage,

<www.icrw.org/docs/childmarriage0803.pdf >, visited on 29 February 2015

[5]“Child Marriage”,http://www.unicef.org/protection/files/Child_Marriage.pdf. visited on 29th March 2015

[6]Taken from UNICEF based website,<www.childinfo.org/areas/childmarriage/>, visited on November 2007

[7]International Center for Research on Women (ICRW) Policy Advisory on Child Marriage,

<www.icrw.org/docs/childmarriage0803.pdf >, visited on November 2011

[8]59th Report of Law Commission on February 2008.

[9]Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001), p.10

[10]The 59th Law Commission Report February 2008.

[11]Taken from UNICEF based website, <www.childinfo.org/areas/childmarriage/>, visited on November 2007

[12]Taken from UNICEF based website, <www.childinfo.org/areas/childmarriage/>, visited on November 2007

[13]Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001),

p.10

[14] supra 12CHAPTER 1

INTRODUCTORY CHAPTER

1.1 OBJECTIVE OF STUDY

The objective of the study on this topic is to dissect and give a holistic analysis of the various aspects of the Offence of Child Marriage. This project analysis various provisions related to the offence, under the Indian laws.

1.2 RESEARCH METHODOLOGY

The nature of research methodology adopted for this particular topic is purely doctrinal. I used resources available at the library of Law Faculty (University of Allahabad) and the World Wide Web. Thus, I used secondary data for the successful completion of this project. No primary data has been included.

1.3 FORMATTING METHODOLOGY

The project is in Times New Roman, font Size 16 for the main headings and 14 for other parts of the study with 1.5 spacing. The footnotes are of font size 10 with line spacing of 1.0. Uniform method of footnoting has been followed. 

1.4 SCOPE OF THE STUDY

My aim is to throw light on the Offence of Child Marriage in India and analyse its current position in India. I have analysed the relevant provision in Constitution of India, 1950; Code of Criminal Procedure, 1973; and The Indian Penal Code, 1860; etc.

1.5 CHAPTER SCHEME

·         In the first chapter, I briefly introduced the topic. I has also discussed the objective of the study, research methodology, and scope of the study, chapter scheme and the limitation of the study in this chapter.

·         In the second chapter, the “Overview to Child Marriage” has been discussed, with regards to the historical and the social aspects.

·         In the third chapter, titled “Position of Child Marriage in various personal laws. I elucidated the concept of Child Marriage and the provisions relating to the concept of marriage under the Hindu Law in detail manner but position under various other personal laws are discussed in short.

·         In the fourth chapter, I thrown light upon the present “The legal Status of Child Marriages in India” and its development in India, with the critical analysis of the provisions in Indian Penal Code, 1860.

·         In fifth chapter, the “Conflict of Child Marriage in India with other Statutes are discussed.

·         In sixth chapter, the “Legal effect of Child Marriage” has been discussed in brief manner.

·         In seventh chapter gaps and problems in legal framework relating to child marriages are discussed.

·         In eighth chapter, the “Punishment for the Child Marriage” has been analysed, through which the provisions related to Child Marriage have been developed in India.

·         In the ninth chapter, the problems in the implementation of laws have been outlined, and certain suggestions have also been put forward by the researcher after a few deductions.

1.6 LIMITATION OF THE STUDY

Due to paucity of time and lack of resources, a complete comparative study with law prevalent in other nations could not be undertaken by the researcher. However exhaustive use the internet and library resources for the successful completion of this project.

CHAPTER 2

CHILD MARRIAGE: AN OVERVIEW

Child Marriage 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 girls[1].In many parts of the world especially underdeveloped countries parents give consent to child marriages 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 economic responsibilities.

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 opportunities 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 18[2]. 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 not physically 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 their opportunities 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 of child 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, often based on injustice and unfair economic opportunities, is to a great extent, responsible for the discriminatory practices against women.

Child Marriage is a very common practice in India, especially amongst theuneducated sections of the society, which actually forms a large chunk of the population. In fact 40% of the world’s child marriages occur in India. According to UNICEF’s “State of the World’s Children-2009” report[3] , 47% of India's women aged 20-24 were married before the legal age of 18, with 56% in rural area. The government has taken several steps to eradicate this practice, however it is still being practiced all over the country. There are several legislations on child marriage such as the Child Marriage Restraint Act,1929 and the Prohibition of Child Marriage Act, 2006. However there are certain flaws in theselegislations, and also in the implementation of these laws. In the later chapters the legal issues related to child marriages in India have been discussed extensively.

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

2.1 CONCEPT OF CHILD MARRIAGE IN INDIA:

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 the implications 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 [4]. 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 practiced 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-realization. This leaves child brides more vulnerable to poverty, a consequence of child marriage as well as a cause[5]. 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 control.

2.2 HISTORICAL ANALYSIS OF CHILD MARRIAGE IN INDIA

Child marriages were very common in ancient India. Although child marriages were mostly common among the poor in India, some of the rich people also followed this custom. The child marriage tradition was brought to India in the medieval age by the Delhi Sultans who were ruling India at the time. Due to the major problem of Muslim rebels roaming free in the streets of India, the custom of child marriage was brought into the system to marry the girls off before they reach their marriageable age. This also prevented and protected a girl from losing her virginity before she got married. Girls got married before they started menses, but they lived with their birth parents for a while after the marriage. As soon as the girls started menses, they would be sent over to their husbands' home. It was believed that a father who allows his unmarried daughter, who has started menses to live in his home, is responsible for the sin of abortion that takes place in his daughter's body every month. The custom of child marriage could be started when the mother is pregnant with a child. The parents could promise another set of parents that the baby inside the mother will marry their child. Usually, young girls would get married to older boys or men. For example, a 7 year old girl could be married to a 17 year old boy. There were many positive advantages of child marriage. Parents could decide to whom their children would be marrying. Usually, parents would marry their children to individuals from the same caste as them (rich marry the rich, poor marry the poor).

However, from Middle Age, as states and government developed, the political system elaborated and modified the Indian society gradually. It transformed the lifestyle and opinion of its people from a simple to more complex form, restricting significantly the notion of 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 women were considered irresponsible and irrational in love, parents married them early before they got caught into any scandal. Though, age at which the girl was to be married differed and it was rare for girls younger than 12 to be married in antiquity. Nevertheless, girl brides became younger towards the medieval period, and it became increasingly common for girls as young as 6 or 8 to be married as Indian society. The prime concern of negotiating the marriage was to find out the compatibility between the two families. It was believed during those times that if 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 the daughter stayed with her parents until she attained the age of puberty.

2.3 DATA ANALYSIS OF CHILD MARRIAGES IN INDIA

Child Marriages continue to be a fairly widespread social evil in India. In a study carried out between the years 1998 to 1999 on women aged15-19 it was found that 33.8% were currently married or in a union[6]. This showed that child marriage wasfar more prevalent amongst girls and this highlighted the gender dimension of the problem. The National Family Health Survey of 2005- 2006 (NFHS-3) carried out in twenty-nine states confirmed that 45% of women currently aged 20-24 years were married before the age of eighteen years. The percentage was much higher in rural areas (58.5%) than in urban areas (27.9%) and exceeded 50% in eight states[7]. 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% of women aged 15-19 were already mothers or pregnant at the time of the survey. It was also found that more than half of Indian women were married before the legal minimum age of 18 compared to 16% of men aged 20-49 who were married by age 18. Though NFHS-3 did not compile data on girls who were married below the age of 15, the 2001 Census of India had revealed 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 found that 56% girls had been forced into marriage before the age of 15 and of these 7% were married before they were 10. A second survey conducted in 1998 in the State of MP found that 14 % girls were married between the ages of 10 and 14. In 2006 the Hindustan Times reported that 57% of girls in India are married off before they are 18 as per the International Centre for Research on Women[8].

More than 40 per cent of the world's child marriages take place in India, even though the legal age for wedding is 18, reported UNICEF. Child marriage is of course banned in India and the Indian government has taken a strong step to tighten laws against child marriage, but unfortunately this custom continues to exist in spite of legal interdictions. According to the new bill, Prohibition of Child Marriage Bill 2006, the priests, police or local leaders will be jailed and fined if they will be found indulged in this illegal practice, declared RenukaChowdhury, minister for women and children. This bill grants protection to many children forced into marriage every year in the rural parts of the country. They are forced to consent with their parent's decision or choice. Very often, they are even too young to understand the significance of marriage and do not understand the gravity of the event. Young girls are threatened, bullied, black-mailed and emotionally exploited.

Is India really as modern as it claims to be at present? Has it really evolved into an outstanding nation where women folk have equal rights and command a respectable place in the society?

The reply is of course NO. India is proud to reach the moon today and it boasts about its technological and economic progress, but can the nation be modern and prosperous when children are being sold off for a petty sum of money or forced to marry at a very early age and often wedded to old men literally old enough to be their father and die with child birth and miscarriages. How can the Indian government celebrate the Commonwealth games and spend 6 billion dollars for it, when such an important part of its population are living in misery, and facing deplorable living conditions. How can India be proud of the opening ceremony show with a Rs 80-crore aerostat, the giant helium balloon that glittered in the limelight over the Jawaharlal Nehru Stadium on Sunday the 3rd of October 2010 when thousands of Indian children labour day and night and have no roof or access to education or health care? How many helpless parents are obliged to marry off their minor daughters, some as young as seven years old! No concrete step is taken to fight against child abduction or sexual abuse. The poor and the category belonging to the lower castes are victims of discrimination and deprived of everything, even of their self-dignity! Despite the ban, child marriage is still widespread in Jharkhand, Chhattisgarh, Orissa, Rajasthan, Madhya Pradesh and many other states of India.

Child marriage is a practice which is one of the most serious social maladies affecting the lives and future of India’s youth. The study was done to access the prevalence and incidence of child marriages and analyze the various socio-economic and cultural factors leading to child marriage. Data was collected from 2 selected districts each of the 3 states, namely Rajasthan (Tonk and Jaipur), Uttar Pradesh (Varanasi and Meerut), and Madhya Pradesh (Shajapur and Bhopal) where incidence of child marriage was high according to NFHS-2 data.   In the present scenario, though several people interviewed were aware about the law against child marriages, due to lack of enforcement and political will, they continue to follow the practice. Only when the law is made strict and strong action is taken against those who continue to practice child marriages, can the menace be tackled. Also, all stakeholders, community members, panchayat members, etc. should be sensitized and convinced about the negative impact of child marriage on children, and about protecting the sexual and reproductive health and rights of girls and young women through awareness generation programmes.

2.4 STUDY OF THE CAUSES AND CONSEQUENCES OF CHILD MARRIAGE

2.4.1 Causes of Child Marriage - Child marriage has many causes: cultural, social, economic and religious. In many cases, a mixture of these causes results in the imprisonment of children in marriages without their consent.

Some of the causes are as follows:

·         Poverty: Poor families sell their children into marriage either to settle debts or to make some money and escape the cycle of poverty. Child marriage fosters poverty, however, as it ensures that girls who marry young will not be properly educated or take part in the workforce.

·         "Protecting" the girl's sexuality: In certain cultures, marrying a girl young presumes that the girl's sexuality protected, therefore the girl's family's honour, will be "protected" but ensuring that the girl marries as a virgin. The imposition of family honour on a girl's individuality, in essence robbing the girl of her honour and dignity, undermines the credibility of family honour and instead underscores the presumed protection's actual aim: to control the girl.

·         Gender discrimination: Child marriage is a product of cultures that devalue women and girls and discriminate against them. "The discrimination," according to a UNICEF report on "Child Marriage and the Law," "often manifests itself in the form of domestic violence, marital rape, and deprivation of food, lack of access to information, education, healthcare, and general impediments to mobility."

·         Inadequate laws: Many countries such as Pakistan have laws against child marriage. The laws are not enforced. In Afghanistan, a new law was written into the country's code enabling Shiite, or Hazara, communities to impose their own form of family law--including permitting child marriage.

And in India also laws are there but it is not enforceable in that manner in which it should be.

·         Trafficking: Poor families are tempted to sell their girls not just into marriage, but into prostitution, as the transaction enables large sums of money to change hands.

2.4.2 CONSEQUENCES OF CHILD MARRIAGE

As stated above, Child Marriage is a grave violation of the rights of the child depriving her of opportunities and facilities to develop in a healthy manner to obtain education and to lead a life of freedom and dignity. It deprives the young girl of capabilities, opportunities and decision-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 to early 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 little or no access to health care services. Risks associated with young pregnancy and childbearing include “an increased risk of premature labour, complications during delivery, low birth weight, and a higher chance that the newborn will not survive[9].” Young mothers under age 15 are five times more likely to die than women in their twenties due to complications including haemorrhage, sepsis, preeclampsia/ eclampsia and obstructed labour[10]. Maternal mortality amongst adolescent girls is estimated to be two to five times higher than adult women[11]. Maternal mortality amongst girls aged 15-19 years is about three times higher[12]. 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 sufferinjuries, infections and disabilities, which usually go untreated and some of which are lifelong”[13]. Research further indicates that the babies of mothers below the age of 18 tend to have higher rates of child morbidity and mortality. “Infants of mothers aged younger than 18 years have a 60 per cent greater chance of dying in the first year of life than those of mothers aged 19 years or older [UNICEF 2007].” Babies are born premature or underweight or young mothers simply lack parenting skills and decision-making powers[14]. Secondly, young girls face the risk of infection with sexually transmitted diseases including HIV. Young brides who run away from early marriages may end up as sex workers or eventually resort to use sex work as a way of earning additional income. Young brides also run the risk of catching diseases from their respective spouses, as older husbands often engage in sexual relations with other women outside the marriage. Young married girls do not have bargaining power in the marriage and therefore cannot negotiate safe sex and are deemed vulnerable. It has also been found that young girls are physiologically more prone to contracting HIV/AIDS, as her vagina is not well lined with protective cells and her cervix may be more easily eroded.

An analysis of the HIV epidemic shows[15] that “the prevalence of HIV infection is highest in women aged 15–24 and peaks in men between five to ten years later.” Women also undergo 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 below the age of 15, with the youngest being married at 7 years old, findings revealed that this age group had “one of the highest rates of vulnerability to sexual violence in marriage, second only to those whose dowry had not been paid.” The women interviewed said they had sexual intercourse before menstruation had started, that sex was early and very painful, and “many still continued to be forced into sexual activity by their husbands.” [16]Additionally the young girls “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 than their 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 and they are often denied property rights, and other rights. Child widows have little or no education 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 go[17]. 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 Marriage[18].

CHAPTER 3

POSITION OF CHILD MARRIAGE ACT VIS-À-VIS PERSONAL LAWS:

For a critical understanding of child marriages in India, a thorough examination of the gaps and commonalities in criminal and marriage legislations is essential. Therefore, a reading of the Child Marriage Act, 2006, needs to take into account the implications of the various personal laws and the secular law on marriages. The provisions of the Child Marriage Act, 2006, are further diluted due to personal laws on marriage.

3.1. CHILD MARRIAGE AND 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 of marriage, 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 Marriage[19] 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 by both 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. It is 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 law[20].

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 fact[21]37. 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, subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction[22]38. 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 Voidable Marriage is a perfectly valid marriage so long as it is not avoided. A

Voidable marriage[23]39 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 the parties,the childrens 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 years[24].

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 herself[25].

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 MarriageAct, 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 marriage[26]”. But such a policy of law that non- age does not render the marriage void or voidable. 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 undisturbed[27].

The rationale behind this policy is that minor marriages in our country are still so rampant that if we would lay down that non-age rendered 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 conditions are fulfilled, 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 disorder of 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 twenty-one 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 custom or 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.

To conclude, the position under Hindu Marriage Act is that a Hindu girl above 18 years of age can marry on her own, without obtaining the consent of the guardians. But if she is below 18 years of age she cannot marry even with the consent of guardians. Hindu Marriage Act does not recognize the right of guardians to marry off their children below the prescribed age limit and provides punishment to the bride and the groom if marriage is performed in contravention of the age provision.  However, such a marriage is valid in the eyes of law and produces all legal effects, as Hindu Marriage Act is silent regarding the legal effect of an under-age marriage.  A minor wife has a choice to seek divorce on the ground of under-age marriage on attaining the age of eighteen years. But she can obtain divorce only if the marriage was performed when she was below the age of fifteen.

3.2 Muslim Law:

The Muslim law on marriages lays down the age of puberty as the age of marriage. However, as per Section 2(vii) of the Dissolution of Muslim Marriages Act, a Muslim woman can dissolve her marriage if it was performed before she attained 15 years of age, but she has to repudiate her marriage before attaining the age of 18 years, pro- vided the marriage has not been consummated.

3.3 Christian Law:

In both Muslim and Christian marriage laws, consent of the guardian is essential for a minor’s marriage. Section 3 of the Christian Marriage Act, 1872, defines a minor as a person who has not completed 21 years. As per Section 19 of the Act, consent of father, or guardian, or mother is mandatory for marriage of minors, therefore the Act does not invalidate minor marriages.

3.4 Special Marriages Act:

On the other hand, the Special Marriages Act, 1954, is the only Act where child marriages are void; Section 4(c) states that the male must have completed 21 years of age and the female 18 years for a valid marriage

CHAPTER 4

The LEGAL STATUS OF CHILD MARRIAGES IN INDIA: AN ANALISIS

4.1THE 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 times[28]. Some Indian scholars question the existence of child marriage in ancient India, but in most religious texts the father was urged to marry of his daughter at a very young age. Most religious texts recommend[29] ages between 8 to 10 as the ideal age for marriage.

Sage Manu, in his Manusmritihas categorically written[30] that if a girl remains unmarried after Reaching 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. 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 case 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.

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.

A.     THE OBJECTIVE AND REASONS OF THE ACT:

The Child Marriage Restraint Act, 1929 was passed during the tenure of British rule on prepartition India. It forbade the marriage of a male younger than twenty-one or a femaleyounger 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 Marriage[31], the Child Marriage Restraint Act waspassed 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.

B.     THE MAIN PROVISIONS OF THE ACT:

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.

·         The Act lays[32] 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.

·         Section 6 of the Act, provides[33] 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 or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine.

·         Section 7 provides[34] 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.

·         The Act lays down[35] 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.

·         The Act lays down the provisions[36] 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.

4.2PROHIBITION OF CHILD MARRIAGE ACT, 2006

In the pre-Independence period, the debate on the age of consent was closely related to the campaign for legislation on child marriages. This continued into the 20th century, with the CMRA in 1929 also known as the Sarda Act. The aim of the Act was to restrain solemnisation of child marriages. The Act rose the minimum age of marriage for girls to 14 years and for boys to 18 years. The Act was amended in 1949, raising the minimum age of marriage for girls to 15 years; and again, in 1978, to raise the minimum age for girls to 18, and that of boys to 21 years. The CMRA was a result of sustained pressure by social reform groups and individuals. However, the objectives did not cross the boundaries of sexual consideration. They merely focused on the appropriate age for a husband to have sexual relations with his wife. There was no reference to the negative effects on the development of a girl child or her free consent.

The Child Marriage Act, 2006, replaced the CMRA. The purpose of the Child Marriage Act, 2006, is not simply to restrain but prohibit child marriages. It lays down the minimum age for marriage as 21 for males and 18 for females. The anomaly of two different ages at marriage for women and men was raised before the Parliamentary Standing Committee, while some members opposed this; the government commented that “for the purpose of marriage, two different ages have been accepted socially as well as culturally in the country”.

Section 3 of the Child Marriage Act, 2006, provides that a child marriage will be rendered voidable only if the children or their guardians file legal proceedings. It is unlikely that any such case will be filed given the societal norms that surround it .

Under Section 3(3), a petition for annulment of the marriage by the contracting party who was a child at the time of marriage may be filed any time, before (the child filing the petition completes) two years of attaining majority, which allows a male of 23 years and female of 20 years to file a petition. But it is unlikely that these child brides or their families will choose to nullify their marriages, as by the time they decide to go to court their marriages would have been consummated.

The Act, under Section 12, lays down that child marriages will be void only in three cases:

       I.            When the girl is “enticed out of the keeping of the lawful guardian”;

    II.            In cases of compulsion or deceitful means; and,

 III.            For the purpose of trafficking.

These correspond to the provisions under various matrimonial laws where the lack of valid consent is grounds for annulment of marriage. This section validates other forms of customary and traditional child marriages, which remain voidable and valid till invalidated by the contracting party.

Section 14 of the Act states that child marriages performed in contravention of injunction orders issued, under Section 13, whether interim or final, will be void. A magistrate based on a complaint or even suo-motu cognizance of a report regarding child marriage being arranged can issue these injunctions. It obligates the district magistrate to prevent solemnization of mass marriages, while acting as a child marriage prohibition officer. The Act legitimizes children born out of child marriages and ensures protection in the form of maintenance and custody, both for the minor girl and her child.

Registration of marriages  is not addressed in the Child Marriage Act, 2006, but the Andhra Pradesh Compulsory Registration of Marriages Act, 2002, is strongly taken up in the state rules. The child marriage prohibition officer has to ensure “scrupulous adherence” to the Andhra Pradesh Compulsory Registration of Marriages Act, 2002, as per the Andhra Pradesh Prohibition of Child Marriage Rules, 2012.

Moreover, the Law Commission also recommends “registration of marriage be made compulsory.”

Some of the Salient features of the Prohibition of Child Marriage Act, 2006 can be listed as :

       I.            Child marriages to be voidable at the option of contracting party being a child.

    II.            Provision for maintenance and residence to female contracting party to child marriage.

 III.            Custody and maintenance of children of child marriages.

 IV.            Legitimacy of children born of child marriages.

    V.            Power of district court to modify orders issued under section 4 or section 5.

 VI.            Punishment for male adult marrying a child.

VII.            Punishment for solemnising a child marriage.

VIII.            Punishment for promoting or permitting solemnisation of child marriages.

 IX.            Marriage of a minor child to be void in certain circumstances.

    X.            Power of court to issue injunction prohibiting child marriages.

 XI.            Offences to be cognizable and non-bailable.

XII.            Appointment of Child Marriage Prohibition Officers.

CHAPTER 5

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

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 marriage.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 years. On the other hand, if the girl is not the wife of the man, but is below sixteen, then the sexualintercourse even with the consent of the girl amounts to rape? It is rather shocking to note thespecific 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 guardian 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) reflects the implied legislative acceptance of the child marriage.

Criminal Procedure 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 her.

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.

CHAPER 6

LEGAL EFFECT OF CHILD MARRIAGE

Child Marriage Restraint Act is silent about the legal effect of a child marriage. It does not mention whether child marriage is valid, void, or voidable. Under all the religion based personal laws of marriage a child marriage is a valid marriage. Only the civil law of marriage, Special Marriage Laws, declares it to be void. As discussed earlier, it is one of the reasons for the failure of Child Marriage Restraint Act. For eradication of the evil of the child marriage, it is necessary that Child Marriage Restraint Act should be amended so as to make compliance with the prescribed age at marriage as an essential mandatory condition.  In case of breach of this condition, the marriage should be declared null and void having no legal effect.

Such a declaration would, however, have adverse consequences for married adolescent girls. To avoid such an outcome, it would be helpful to stipulate a specific initial period, say ten years, when a child marriage, could be made voidable at the option of the child bride. After that period any child marriage carried out could be made void ab initio, that is to say, from its very inception. To avoid inconsistency with Child Marriage Restraint Act and the religion-based personal laws of marriage, child marriage should be declared void under personal laws too. As an additional precaution, an independent section, with a non-obstantee clause, defining the scope of Child Marriage Restraint Act, should be added to Child Marriage Restraint Act giving it overriding effect over the personal laws. Such a section should expressly oust the application of other marriage laws.  To protect further the interests of the young girl whose marriage would become void on the ground of age, the personal laws of marriage should recognize her right to claim maintenance from man to whom she was married and from his parents.

CHAPTER 7

GAPS AND PROBLEMS IN LEGAL FRAMEWORK RELATING TO CHILD MARRIAGES:

The issue of child marriage is addressed in jurisprudence in three ways:

a)      First, in the context of “age of discretion”- in relation to habeas corpus petitions in cases of “elopement or love marriages”, where approval from parental authority is lacking.

b)      Second, in relation to “enticement of girls from lawful guardianship”, which is grounds for declaring child marriages void, even with the minor’s approval.

c)      The third is in relation to Muslim personal laws that hold the “age of puberty” as the age of marriage, which has been contested in a recent case on child marriage.

However, what is surprising is the absence of cases of forced child marriages of girls with older men with parental approval. This is because “the patriarchal bastions are too strong and well-fortified for a modern feminist discourse to enter and change social mores through legal dictates.”

The figures from the National Crime Records Bureau (NCRB), 2005, indicate that out of 122 cases of child marriages reported under the CMRA 2005, about 45 resulted in a conviction. The report of the Law Commission (2008) highlights that from the earliest cases, high courts and the Supreme Court have upheld the validity of child marriages.  These include judgments like “Durga Bai v. Kedarmal Sharma” , “Shankerappa v. SushilaBai” , “Rabindra Prasad v. SitaDass”  and others.

1. “AGE OF DISCRETION”- IN RELATION TO “ELOPEMENT OR LOVE MARRIAGES” & “ENTICEMENT OF GIRLS FROM LAWFUL GUARDIANSHIP”

AmrinderKaur and Another v. State of Punjab. was a case of a runaway couple seeking protection under Article 21 of the Constitution as they were being threatened by the girl’s family. The minor girl of 16 years got married as per Sikh rites to a Jat man of 21 years; her counsel argued that since she has attained the age of discretion, her marriage is not void. The couple married without approval from the girl’s family and the girl’s father lodged a complaint that a man in his neighbourhood, along with his parents, had kidnapped his daughter with the intention to marry her.

The Court, referring to prior judgmentson the issue, held that none of the referred judgments took into consideration the provisions of the Child Marriage Act, 2006, which came into force in 2007. Relying on Sections 2(a), (b) and 12(a) of the Child Marriage Act, 2006, the Court held that the marriage is child marriage, as the petitioner is 16 years and two months old, who has been enticed out of the keeping of the lawful guardian and cannot, contract the marriage; therefore, her marriage shall be null and void. The Court held that in the garb of providing police protection it cannot declare the void marriage as valid. The Court stated, “the life and liberty of the petitioners is only endangered and threatened by the girl’s family so long as their marriage legally subsists, but once their marriage is declared to be void, there is no threat to their life and liberty”.

Unlike cases under the CMRA, the Court in this case took note of the Child Marriage Act, 2006, and held that underage marriages between 16 and 18 years, even with the consent of the girl, are void and cannot be provided protection.

The other high courts have, however, taken a slightly differently position with regard to “elopement marriages”. Such cases of elopement are usually filed under the writ of habeas corpus or under Section 363 of the IPC, which deals with kidnapping of minors. A reading of a few “elopement” or “love marriage” cases reveals that courts have, at least in a few instances, up- held these marriages based on the consent of the minor woman. What also comes out in such cases of “enticement from the lawful keeping of the father” is the issue of guardianship, whether the husband can be guardian of a minor wife.

In Jitender Kumar Sharma v. State and others ,both Poonam and Jitender were minors, who eloped and married under the HMA. The Delhi High Court, in deciding the validity of such marriages, stated, “Merely on account of contravention of Section 5(iii) of the HMA, Poonam’s marriage with Jitender is not void under HMA or the Child Marriage Act, 2006. It is, however, voidable, as now all child marriages are.” Similarly, in deciding the custody of Poonam, the courts read together Sections 17, 19, 21 of the Guardians and Wards Act, 1890, and Sections 6 and 13 of the HMA and took a broad, tolerant view that the welfare of the minor (who is old enough to make an intelligent preference) is paramount. Talking about Poonam’s guardianship, the court held that Poonam’s natural guardian was now her husband and not her father, and that no one else can take that place until and unless her husband is found to be unfit to take that responsibility. The court upheld the girl’s right to life and liberty in allowing her to choose her guardian and categorically stated that she cannot be forced to live in NariNiketans or with her parents just because she is a minor.

The court highlighted the distinction between child marriages, where children are forced into them, and modern-day marriages, where minors fall in love and marry out of their own free will. As the courts put it:

“The sooner the legislature examines these issues and comes out with a comprehensive and realistic solution, the better, or else courts will be flooded with habeas corpus petitions and judges would be left to deal with broken hearts, weeping daughters, devastated parents and petrified young husbands running for their lives chased by serious criminal cases, when their sin is that they fell in love.”

The full bench of the Madras High Court in T Sivakumar v. (1) Inspector of Police, Thiruvallur Town Police Station; (2) Anbu; (3) Samandan ,revisited the issue of runaway/elopement marriages and addressed five pivotal questions:


1)      Whether a marriage contracted by a person with a female of less than 18 years could be said to be a valid marriage and the custody of the said girl can be given to the husband (if he is not in custody)?


2)      Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?

3)      If yes, can she be kept in the protective custody of the state?

4)      Whether in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 a minor girl, who claims to have solemnised her marriage with another person, would not be a juvenile in conflict with law, and whether in violation of the procedure mandated by the Juvenile Justice Act, the court dealing with a writ of habeas corpus has the power to entrust the custody of the minor girl to a person who contracted the marriage with the minor girl and thereby committed an office punishable under Section 18 of the HMA and Section 9 of the Child Marriage Act, 2006?


5)      Whether the principles of Sections 17 and 19(a) of the Guardians and Wards Act, 1890, could be imported to a case arising out of the alleged marriage of a minor girl, admittedly in contravention of the provisions of the HMA?

Sivakumar, father of minor girl, Sujatha, 17 years old, filed a petition of habeas corpus demanding custody of the child. Sujatha in her affidavit stated that she had fallen in love with Anbu and that she was being forced by her parents to marry her uncle. Referring to earlier high court judgments ,the division bench held that marriage contracted with a minor girl is voidable until a competent court under Section 3 of the Child Marriage Act, 2006, annuls it. The court said that the marriage is not valid in a strict sense but it is not invalid either. The male contracting party shall not enjoin all the rights, which would otherwise emanate from a valid marriage, but only limited ones.

The court held that the adult male contracting party to a marriage with a female child shall not be the natural guardian of the female child, in keeping with the provisions of the Child Marriage Act, 2006; nor will he be entitled the custody of the female child, even if she expresses her desire to go to his custody. However, as an interested person in the welfare of the minor girl, he can apply to the court to set her at liberty if she is illegally detained by anybody. In habeas corpus proceedings, while granting custody of a minor girl, her welfare and safety is paramount, notwithstanding the legal right of the person who seeks custody.

Talking about the “age of discretion”, the court held that this is a question of fact which each court has to decide based on the facts and circumstances of the case. Most importantly, the court stated that if the girl expresses her desire not to go with her parents, provided, in the opinion of the court, she has the capacity to determine, the court cannot compel her to go to the custody of her parents and instead may entrust her in the custody of a fit person subject to her volition.

The really significant aspect of this judgment is that while the court did not allow her to cohabit with her adult husband, it also upheld the minor girl’s decision to not stay with her parents. Employing the “age of discretion” to decide in the best interest of the child, the court held that in such habeas corpus petitions the decision of the minor would be taken into account.

2. “AGE OF PUBERTY” AS THE AGE OF MARRIAGE IN MUSLIM PERSONAL LAWS:

The third category of cases is in relation to Muslim personal laws that hold the “age of puberty” as the age of marriage.In the recent case ofMrs. Tahra Begum v. State of Delhi and Ors, the Delhi High Court held that a Muslim minor girl could marry in accordance with the principle of the “Option of Puberty” or khiyar-ul-bulugh. However, in accordance with this very principle, the minor girl may also choose to repudiate the marriage upon attaining majority. In this case, the minor girl clearly expressed her choice to reside with her husband and the court upheld her agency and choice, over age and minority status. This case has revived the debate about the interplay between the Child Marriage Act, 2006, and the various personal laws. However, in a recent full bench,the decision of the Delhi High Court held that The Child Marriage Act is a secular law, which specifically deals with the problem of child marriages. Religion of the contracting party does not matter. Being a “special Act” and being a subsequent legislation will override the provisions of HMA Act or for that matter any personal law. However, this should not be interpreted that we have held that a petition for dissolution of marriage under Section 13(2)(iv) is not maintainable. Both provisions, i.e., Section 13(2)(iv) and Section 3 operate, apply and have their own consequences. These are two concurrent provisions, which can be invoked by the ‘parties’ satisfying the conditions stipulated in the two sections.

CHAPTER 8

PUNISHMENT FOR CHILD MARRIAGE

The curse of child marriage has, over the years, played a ridiculously important role in shaping the mindset of the society and its people. The marriage of a child before he attains a particular age is not only a factor detrimental to his values and childhood, but also to his health and education. As far as the punishment for the crime of Child Marriage is concerned, then it is decided according to the provisions in the Prohibition of Child Marriage Act, 2006.

8.1 PUNISHMENT UNDER THE PROHIBITION OF CHILD MARRIAGE ACT, 2006

Child marriage has been an issue in India for a long time. Because of its root in traditional, cultural and religious practices it has been a hard battle to fight. Child marriage is also associated with other problems like dowry and child widowhood.  It is also associated with malnutrition, poor health of mothers and high fertility and hence over-population. The following is an overview of the act.

According to the act a child is a male who has not completed twenty one years of age and a female who has not completed eighteen years of age. Child marriage is a contract between any two people of which either one or both parties is a child.  Child marriage that took place before or after this act can be made void by the person who was a child at the time of marriage. But the marriage must be voided before the person who was a child completes their second year of maturity.

The Child Marriage Restraint Act, 1929 has been repealed and the major provisions of the new Act include:

·         Age of marriage for boys is 21 and 18 for girls and any marriage of persons below this age is child marriage - illegal, an offence and punishable under law.

·         Every child marriage shall be void if so desired by either the bride or the groom who was a child at the time of the marriage.

·         The Court while granting nullity shall make an order directing the parents and guardians to return the money, ornaments and other gifts received.

·         The Court may also make an order directing the groom or parents or guardian to pay maintenance to the bride until her remarriage.

·         The Court shall make an appropriate order for the custody and the maintenance of the offspring of child marriages.

·         Notwithstanding that a child marriage has been annulled, every offspring of such a marriage shall be deemed to be a legitimate child for all purposes.

·         Any person arranging, party to, solemnizing, participating in a child marriage is also liable to be punished under the Act, including mass marriages.

If a male adult above eighteen years contracts a child marriage shall be punishable unto two years imprisonment and/or a fine with may extend to Rs. 1 lakh. The same punishment will be given to person who performs, conducts or directs a child marriage. Unless proved otherwise, the parents or guardian of the child are considered to have failed to prevent the child marriage and hence are also held accountable.

There are certain situations in which a child marriage is deemed void even without a petition from one of the parties. If a child was detained away from her/his parents or guardians, forced to go to a different place, sold into marriage, or made to marry after which they are used for immoral purposes or trafficked then that marriage is considered to be null and void.  The court has the power after the application of an officer or any person to issue an injunction prohibiting a suspected child marriage against any person, including a member of an organization or an association of people. The court may also act against a suspected child marriage on its own motion but must provide the person/association with time to respond to the injunction. Ignoring a notice or injunction is a punishable offence. If the marriage is still carried out after the injunction, it is automatically voided.

The act calls for the instatement of a Child Marriage Prohibition Officer, who is responsible for ensuring no child marriage takes place in their jurisdiction by approaching the courts for an injunction, collecting evidence against people, creating awareness about the negative effects of child marriage, collect data concerning child marriages, etc. A child marriage prohibition officer is deemed a public servant in this act.

Rules of this act are to be made by the respective state governments. The act calls for the Hindu Marriage Act, 1955 to be amended to meet its provisions as well as the repeal of The Child Marriage Restraint Act, 1929.

CHAPTER 9

IDENTIFICATION OF PROBLEMS, SUGGESTIONS&CONCLUSION

Child marriage in India has been practiced for centuries, with children married off before their physical and mental maturity. The problem of child marriage in India remains rooted in a complex matrix of religious traditions, social practices, economic factors and deeply rooted prejudices. Regardless of its roots, child marriage constitutes a gross violation of human rights, leaving physical, psychological and emotional scars for life. Sexual activity starts soon after marriage, and pregnancy and childbirth at an early age can lead to maternal as well as infant mortality. Moreover, women who marry younger are more likely to experience domestic violence within the home.

The problems which occur in the child marriage in India are because it has the dubious distinction of being home to nearly 40 per cent of all child brides in the world despite its adverse consequences such as malnutrition, pregnancy-related deaths and child mortality.

This fact was highlighted by Breakthrough, a human rights organisation, as it launched a campaign in the city on Tuesday to curb child marriages by addressing it as a societal malaise. The ‘Nation Against Early Marriage’ campaign was launched at the Ford Foundation here.

Some suggestions which are to be followed to abolish the child marriages :

·         Increase awareness generation:All stakeholders should be sensitized and convinced about the negative impacts of child marriage.

·         Gender sensitization programs: Gender training programs should be spread throughout the district for police and NGOs. Primary and secondary education for girls should be promoted.

·         Checking loopholes in the law: Shortcomings must be corrected to strengthen the law.

·         Training: Child Marriage Prevention Officers need to be trained for vigilance.

·         Special police cells: Task forces must be set up to focus on cases of child marriage.

·         Increased authority for NGOs: NGOs should be given the authority to report and intervene in cases of child marriage.

·         The issue of child marriage should not be restricted to the Women and Child Development Ministry but also needs to be taken up seriously by other ministries such as the Health and Education, Secretary of the Women and Child Development Ministry.According to the National Family Health Survey III (2005-2006), around 46 percent of women in the age group of 18-29 were married before reaching the legal age of 18. While the rate of child-marriages reportedly dropped to 46 percent in 2006, in some states child marriage prevalence still exceeds 50 percent.The highest rates have been found in Bihar (64 pc), Rajasthan (58 pc), Jharkhand (60 pc), Madhya Pradesh (53 pc), Uttar Pradesh (52 pc), Chhattisgarh (51 pc), Andhra Pradesh (56 pc) and West Bengal (53 pc).

·         What is important is the legal and rights implications of choices these young women make. Feminists have debated the issues of the age at marriage and the age of consent. It is important to note that fixing a mandatory age at marriage would serve as a double-edged weapon because while on the one hand it would prevent pre-pubertal marriages, on the other it would impinge upon the right of minor girls who have attained the age of discretion to choose a partner and marry. As the cases presented in the earlier sections show, there are minor girls who are forced into alliances; at the same time, there are in- stances where they are hounded with habeas corpus petitions for marrying a person of their choice. What then can be the way out for the girls, while not endorsing the idea of legalising marriages in the age group of 16-18 years? This is the grey area that needs to be addressed by society rather than legislatures alone.

·         Allowing girls’ freedom in relationships and sexual autonomy is important; however, does this mean that marriages should be legalised at the age of 16 years? This brings us to the following question: what is the age at which girls are capable of exercising choice? Courts have employed the “age of discretion” test in many judgments but the problem emerges when one tries to answer whether the recognition of age of discretion has been common across the board, in all cases? There is a visible elasticity in ascertaining “age of discretion” and judgments differ despite similar facts. In most cases, the age of discretion has been employed when young girls of 16-18 years have exercised their choice in the matter of sexual relationships, and parents have objected to such relationships. Fixing the age for marriage at 18 is not problematic from the standpoint of pre-pubertal marriages; it becomes a concern when one starts conflating age at marriage and age of consent, thereby negating any form of sexual freedom that young girls below that age group can exercise. However, lowering the bar from 18, as the age at marriage would give families free access to perform arranged marriages or forced marriages, thereby increasing child marriages.

·         Child Marriage Act, 2006:While there is a long history of resistance to pre-pubertal and mass child marriages, one needs to re-examine the Child Marriage Act, 2006, vis-à-vis the criminal law provisions of the IPC. The IPC fails to address the discrepancy in the age of consent at the time of rape and the age of consent for rape within a marriage, which constitutes discrimination against women- especially married women- and has severe implications for child marriages in India. Non- recognition of the rape of a wife, who is 15 years old, by her husband, limits the control women have over their sexuality. This ad- verse situation is exacerbated by the rather mild punishment of two-year imprisonment that is awarded in the case of rape by a man of his wife who is above 12 years but below 15 years of age.

·         The recent legislation on the Protection of Children from Sexual Offences Act, 2011, aims to protect children from offences of sexual assault, sexual harassment and pornography and provides for the establishment of special courts for trials of sexual offences. This is the first legislation regarding sexual offences committed against children; it protects them from sexual exploitation and abuse by adults. While protecting children from adults, the law also criminalises sexual exploration among children who are 16 to 18 years of age. Children need protection from various forms of violence, exploitation and abuse, as stated in the Act but the fear of violence should not take away their right to discover their sexuality and to take charge of their bodies. It is within this grey area be- tween age and agency that the debate on child marriage is located.

·         Another pertinent point is punishment under the Child Marriage Act, 2006, which is a combination of rigorous imprisonments and fines. To whom do these punitive measures apply? Under Sections 10 and 11(1), whoever performs, con- ducts, directs or abets any child marriage shall be punishable under the Act. Therefore, any family member, institution or association of persons can be held liable for punishment under the Act. While punitive measures are important to highlight the problem of child marriage, how logical are these punishments? The NCRB 2012 records on child marriage reveal low conviction rates. Moreover, girls forced into child marriages are fearful of approaching the authorities, lest their parents are imprisoned and fined. It is important to revisit these questions to understand who is liable for the practice of child marriage rather than focusing on the quantum of punishment itself and whether the punishment under the Act is logical and can help combat the practice of child marriage.

·         Though our courts have been progressive in some of their judgments, by not penalising the girls bordering majority (between 16 and 18 years) for their consensual underage marriage, our society has been less accepting of such marriages and has victimised such girls. Another disturbing trend seen is the attitude of society towards girls who have experienced early marriages and who are now trying to find their feet again. Recent newspaper reports have highlighted that at least two girls aged 17 years were denied admission due to child marriages fearing they would set a bad ex- ample for other students or discuss familial matters in school.

·         The high incidence of child marriages in India remains a major concern despite efforts by various child rights and women’s rights groups. The National Plan of Action for Children 2005 set out a goal to eliminate child marriage completely by 2010. Though that timeline is long over and the plan has failed to address child marriages, there are several states like Andhra Pradesh that have recently issued the necessary rules and guidelines to implement the provisions of the Child Marriage Act, 2006 (The Asian Age 2012) which came into force in November 2007. After a gap of five years, rules have been issued in the state and till date no appointments of child marriage prohibition officers have been made, highlighting the lack of political will and initiative on the issue.

·         Non-governmental organisations (NGOs) have played a proactive role in working towards the prevention of child marriages through counseling and awareness generation. One such successful instance is the Child Line 1098 service, which has been able to successfully prevent child marriages in the state of Andhra Pradesh. A case in point is Srikakulam district of Andhra Pradesh where 18 cases have been dealt with, with the aid of the helpline.

The CEDAW Committee in its concluding observations in 2007 recommended that India take up comprehensive, effective and stringent measures aimed at eliminating child marriages and protection of human rights of the girl child. Provisions of the constitution, regarding non-discrimination on the basis of sex, equal protection of the law, equality before the law, and the protection of life and personal liberty safeguard this right and temper the interpretation of the entire range of special and religious laws. However, despite the framework of national and international legal protection, this right has proved to be one of the most complex and difficult to put into practice in the sociocultural context of India (National Alliance for Women 2006).

Inconsistency in the different personal laws regarding the legally permissible age at marriage, the option of puberty in personal laws, and judicial computation of the age of discretion inhibits implementation of the Act, but at the same time have been successful and upheld consensual marriages with choice of partner.

While it is important to implement the provisions of the Child Marriage Act, 2006, it is also important to ensure children’s right to life with liberty and non-discrimination; provide spaces where children can explore and understand their sexuality, even while they are protected from practices like forced child marriages. Moreover, laws alone cannot address the problem of child marriages; there must also be adequate support, information dissemination and capacity enhancement from various quarters.

BIBLIOGRAPHY

BOOKS REFERRED

1.      Mahmood, Tahir. “The Muslim Law of India”, New Delhi, Allahabad, 1990. P.49; Tyabji, F.B. “Muslim Law”, 4th edition, Bombay 1968. P. 52.

2.      Hidaytullah, M. “Mulla Principles of Mohamedan Law”. Bombay, 19th edition, 1990, P.233.

3.      Tyabji, F.B. “Muslim Law”, 4th edition, Bombay 1968. P. 51-52.

4.      S.N.Mishra, Indian Penal Code, 2012 edition CLP

5.      Keshri, U.P.D..Mordern Hindu Law, 2012 edition CLP

ARTICLES REFERRED

1.      Centre for Social Research and National Institute of Public Cooperation and Child Development. A Study on Child Marriage in India: Situational Analysis in Three States. 2008.

2.      Gupta, Pallavi. “Child Marriages and the Law: Contemporary Concerns.” Economic and Political Weekly. Vol XLVIII, No. 43. October 27, 2012

3.      Law Commission of India, 172nd Report. “Review of Rape Laws”. March 2000.

4.      Law Commission Report no. 205. “PROPOSAL TO AMEND THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND OTHER ALLIED LAWS” (Law Commission of India 2008: 7)

5.      Murty, K.S.N. “Marriage of Hindu Minors”, (1969) AIR Journal 72-75.

WEB RESOURCES

1.      “Child Marriages in India”. www.studymode.com/essays/Child-Marriages-In-India-132188.html. 2008. Web, February 24, 2015.

2.      “Child Marriage around the World”. International Center for Research on Women (ICRW). www.icrw.org/child-marriage-facts-and-figures.  2015. Web. February 24, 2015

3.      “Child Marriage in India”. Centre for Social Research. www.csrindia.org/index.php/child-marriage-in-india. Web. February 24, 2015

4.      “Child Marriage in India-An Analysis of available data (2012). UNICEF. www.unicef.org/india/resources_8230.htm.  2012 Web. February 24, 2015

5.      “Child Protection and Child Rights”. Child Line 1098. www.childlineindia.org.in/child-marriage-india.htm. 2011. Web. Thursday, February 24, 2015

6.      “Child Protection and Child Rights”. www.childlineindia.org.in/Prohibition-of-Child-Marriage-Act-2006.htm . 2012. Web. ,March 20 , 20

7.      “Child Marriage: UNICEF Information Sheet”. United Nations International Children Emergency Fund (UNICEF). www.unicef.org/india/Child_Marriage_Fact_Sheet_ Nov2011final.pdf. 2010. Web. March 20 , 2015.

8.      “Child Marriage: Girls 14 and Younger at Risk”. International Women’s Health Coalition. www.iwhc.org/index.php?option=com_content&task=view&id=3487&Itemid=629. 2011. Web. March 20 , 2015.

9.      “Child Marriage: A Violation of Human Rights”. International Humanist and Ethical Union.www.iheu.org/story/child-marriage-violation-human-rights. 2007 Web. March 20, 2015

10.  “Child Marriage”. www.forwarduk.org.uk/key-issues/child-marriage. March 20, 2015

11.   “Child Marriage Factsheet”. www.equalitynow.org/node/868. 2007. March 20, 2015

12.  “Child Marriage”. International Center for Research on Women. www.icrw.org/what-we-do/adolescents/child-marriage. 2012. Web., April, 2 2015

13.  “Child Marriage and the Law”. United Nations International Children Emergency Fund (UNICEF).www.unicef.org/policyanalysis/files/Child_Marriage_and_the_Law%281%29.pdf. 2008. Web. April, 2 2015.

14.  “Ending Child Marriage: A Guide for Global Policy Action”. International Planned Parenthood Federation and the Forum on Marriage and Rights of Women and Girls. www.unfpa.org/upload/lib_pub_file/662_filename_endchildmarriage.pdf.2006. Web. April, 2 2015.

15.  “History of Child Marriage and solutions to prevent Child Marriage”. childblossom.blogspot.in/2011/04/child-marriage-i-n-earliest-known-india.html.web.April, 2 2013.

16.  “History of Child Marriage in India”. www.terredasie.com/terredasie_v3/Articles/child-marriage-in-india.htm. 2010. Web. April, 2 2013.

17.  “National Institute of Public Cooperation and Child Development”. www.wcd.nic.in/ar0708/English/Chapter-8.pdf. 2008. Web. April, 15, 2013.

18.  “Need to Curb Child Marriages Stressed”, www.thehansindia.info/News/Article.asp? category=5&subCategory=2&ContentId=71524.2012. Web. April, 15, 2013.

19.  “Prevalence of Child Marriage in India”. National Institutes of Health, US National Library of Medicine. www.ncbi.nlm.nih.gov/pmc/articles/PMC2759702/.2009. Web. April, 15, 2013.

20.  “The Prohibition of Child Marriage Act, 2006”. All India Christian Council. www.hsph.harvard.edu/population/trafficking/india.childmar.07.pdf. 2007. Web. April, 15, 2013.

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[1]“Child Marriage”,http://www.unicef.org/protection/files/Child_Marriage.pdf.

[2]“The Challenge”, http://www.childinfo.org/marriage.html.

[3]http://www.unicef.org/sowc09/report/report.php

[4]International Center for Research on Women (ICRW) Policy Advisory on Child Marriage,

<www.icrw.org/docs/childmarriage0803.pdf >, visited on 29 February 2015

[5]“Child Marriage”,http://www.unicef.org/protection/files/Child_Marriage.pdf. visited on 29th March 2015

[6]Taken from UNICEF based website,<www.childinfo.org/areas/childmarriage/>, visited on November 2007

[7]International Center for Research on Women (ICRW) Policy Advisory on Child Marriage,

<www.icrw.org/docs/childmarriage0803.pdf >, visited on November 2011

[8]59th Report of Law Commission on February 2008.

[9]Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001), p.10

[10]The 59th Law Commission Report February 2008.

[11]Taken from UNICEF based website, <www.childinfo.org/areas/childmarriage/>, visited on November 2007

[12]Taken from UNICEF based website, <www.childinfo.org/areas/childmarriage/>, visited on November 2007

[13]Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001),

p.10

[14] supra 12

[15]Somerset, Carron, Early Marriage: Whose Right to Choose? Forum on Marriage and the Rights of Women and Children, London (2000), p.21

[16]Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001), p.10

[17]The 59th Law Commission Report February 2008.

[18]The 59th Law Commission Report February 2008

[19]Paras Diwan: The Hindu law; Second edition;p-695.

[20] Supra 18

[21]Paras Diwan: The Hindu law; Second edition;p- 696

[22]Laxhamma v Thyamma AIR 1974 Andhra Pradesh,255

[23] Supra 21

[24]Paras Diwan: The Hindu law; Second edition; p- 606

[25]Supra 40.

[26]Section 5 of the Hindu Marriage Act,1955

[27]The 59th Law Commission Report February 2008

[28]Sagade, Jaya, Child Marriage in India, Oxford University Press, 2005

[29]Manu Smriti, The constitution of Vedic Society

[30]Supra 46

[31]The Child Marriage Restraint Act, 1929

[32]The Child Marriage Restraint Act, 192953

[33]Section 16 of Hindu Marraige Act,1955

[34]Supra 33

[35]Supra 33

[36]Supra 33 

[15]Somerset, Carron, Early Marriage: Whose Right to Choose? Forum on Marriage and the Rights of Women and Children, London (2000), p.21

[16]Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001), p.10

[17]The 59th Law Commission Report February 2008.

[18]The 59th Law Commission Report February 2008

[19]Paras Diwan: The Hindu law; Second edition;p-695.

[20] Supra 18

[21]Paras Diwan: The Hindu law; Second edition;p- 696

[22]Laxhamma v Thyamma AIR 1974 Andhra Pradesh,255

[23] Supra 21

[24]Paras Diwan: The Hindu law; Second edition; p- 606

[25]Supra 40.

[26]Section 5 of the Hindu Marriage Act,1955

[27]The 59th Law Commission Report February 2008

[28]Sagade, Jaya, Child Marriage in India, Oxford University Press, 2005

[29]Manu Smriti, The constitution of Vedic Society

[30]Supra 46

[31]The Child Marriage Restraint Act, 1929

[32]The Child Marriage Restraint Act, 192953

[33]Section 16 of Hindu Marraige Act,1955

[34]Supra 33

[35]Supra 33

[36]Supra 33