INTRODUCTION
Marriage between a male and a female where the age of former is less than 21 years and/or that of latter is less than 18 years, would come under the category of child marriage. The concept of child marriage is not new in India. It was there since ancient times. This problem was called out by the Britishers also, who although criticized it for being a grave violation of human rights but did nothing to stop it.
Child marriages can be seen as both, cause and reason for the growing gender inequality. According to UNICEF data[1] 115 million boys across the globe were married before attaining the age of 18. Child marriage is the cause of several evils like early pregnancies, parenthood, and sexual relations, deprivation of educational and employment opportunities, social isolation and an increase in maternal mortality rate.
Child marriages are seen as a grave violation of the human rights of both the bride and the groom, and is also against the philosophy of various United Nations instruments like the Universal Declaration on Human Rights[2] and the United Nations Convention on Rights of Child[3]. It also violates Article 39 (f)[4] of the Constitution of India which is a Directive Principle of State Policy and directs the state to ensure that it constructs its policies to ensure that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity.
Child marriage robs a person’s childhood and the time which was required for his physical and mental development. It also leads to a vicious circle of injustice and discrimination. It not only hampers developmental rights but also becomes a reason for various heath-issues.
In India, child marriages have been a customary practice. Family and societal-pressure, tradition, culture and poverty can be regarded as a primary-reasons for child marriages, among other reasons. The Law Commission of India in its 205th report[5] suggested that poverty, indebtedness and dowry were the main incentives for the poor families to marry off their girl child as soon as possible. The increased age of the girl meant an increase in the demand for dowry. Despite having laws for preventing child marriages, India has not been able to get rid of it completely.
Although boys and girls both are at the suffering end in child marriage, various reports have shown that child marriag is more prevalent among girls[6].
HISTORY OF CHILD MARRIAGE IN INDIA
In the earliest known history of India, there is evidence of young men and women cohabiting together with the freedom to choose who they want to be with. During the Middle Age, gradual changes started occurring in society and the idea of liberty for women became more complex. Rules and behavioural codes were defined for them by the society which was to be obeyed by them. Their vaginal purity became the symbol of the honour of their family. Young women were viewed as irresponsible and irrational, especially in matters of love. So, to protect the honour of the family, the practice of marrying them early started. Initially, the early age of marriage would not go below 12 years but by the coming of Medieval Age, the age of marriage for women dropped as low as 6 years[7].
Over the years the notion of women being the honour as well as the burden of the family grew. The concept of society was that the woman has to be married, sooner or later, if they were married at an early age, it would not only reduce the financial burden upon the family but would also help the family grow economically by getting the bride price.
The practice became so prevalent in India that according to UNICEF report[8] one out three child brides globally live in India. There are around 223 million child brides in India and majority of those married before 18 have given birth during their adolescence. However, the practice has gone down in recent times.
LEGALITY OF CHILD MARRIAGE IN INDIA
In colonial times, Britisher tried to prevent child marriages by bringing the Child Marriage Restraint Act, 1929[9]. But owing to the then societal condition, child marriage was not declared void or even voidable. Once the marriage is solemnized it becomes completely valid.[10] The Child Marriage Restraint Amendment Act was brought which raised the age of marriage for girls to 18 years and that of boys to 21 years. However, in the case of Rabindra v. Sita[11], it was held that even if a marriage takes against the age provided in the Act, it would still be valid. This act got repealed by the Prohibition of Child Marriage Act, 2006. The purpose of this Act is to prevent child marriage in India, protect the children involved and to prosecute the offenders.
The Act defines a male under 21 years and a female under 18 years as minors. Under section 3[12], child marriage has been declared as voidable at the option of the party who at the time of the marriage was a minor. The party who was minor at the time of the solemnization of the marriage can seek nullity of the marriage from the District court within 2 years of attaining majority. In Baljit Kumar Boprai v. State of Punjab[13], the High Court held that child marriage can be registered once both the parties attain the age of majority.
In the case of Bhagwati alias Reena v. Anil Choubey[14], the petitioner had contended for annulment of the marriage where he was forced to marry a minor girl. The court held that the marriage could be annulled only at the option of the girl, who at the time of marriage was a minor. The Act also says that on the annulment of the marriage, the court can also grant an order directing the male party to pay maintenance to the girl[15]. The Act also has provisions to protect the rights and ensure the welfare of children conceived from such marriages. Section 6[16] of the Act says that children conceived from such marriages will be legitimate notwithstanding the status of the marriage.
In the case of G Saravanan v. The Commissioner of Police Trichy City[17], held that child marriages are neither void nor voidable but valid. The Supreme Court did not agree with this stance and overruled it in the case of T Sivakumar v. the Inspector of Police[18]. The court also said that the Prohibition of Child Marriage Act being a special law will have an overriding effect over the Hindu Marriage Act.
The reason behind making it voidable and not void is because otherwise, it would have been detrimental to the party that was minor at the time of marriage. It would depend upon the minor to decide the future of the relationship.
In P Venkataramana v. State of Andhra Pradesh[19], the court upheld the validity of child marriage fearing that declaring it null and void would render the innocent children born out of the marriage bastard.
The Act also declares certain kinds of marriages to be void. Section 12[20] says, “Where a child, being a minor— (a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.”
The Act also provides rigorous punishment which may extend up to 2 years or a fine which may extend up to 1 lakh or both to, (a) a male who was above 18 years and contracted a child marriage[21], (b) anyone who performs, conduct, directs or abets any child marriage unless he can prove that he had a valid reason to believe that it was not a child marriage[22] and (c) to any person who had the charge of the child, be it parent or guardian or any other person, if he does any act to promote the passing or permits the child marriage or due to his negligence fails to prevent the marriage from being solemnized[23]. The Act also provides that any offence done under this Act shall be cognizable and non-bailable[24].
Under the Hindu Marriage Act[25] and Dissolution of Muslim Marriages Act[26] also, the girl is given the right to dissolve the marriage after attaining 15 years and before attaining 18 years.
With respect to conjugal rights, Section 5(n) of the POCSO Act[27] penalizes penetrative sexual assault on a child by anyone who is related to him through marriage. Section 375 Of IPC also penalizes sexual acts with a girl under 18 years. An exception to this was that sexual activity with a girl above 15 and below 18 years by her husband would not amount to be rape. This provision was read down in 2017 by the Supreme Court in the case of Independent Thought v. Union of India[28].
POSITION OF CHILD MARRIAGE IN OTHER COUNTRIES
Across the globe, there are around 650 million women who were married before they attained the age of 18. According to WHO, the number would reach one billion by the year 2030. According to Pew Research Centre[29], at least 117 countries across the globe happen to allow child marriages, with Niger having the greatest number of child marriage cases. Though 153 out of 198 countries allow people to get married after attaining the age of majority, some of them provide certain exceptions too. In countries like Jamaica, Iraq and Uruguay, child marriages are allowed with parental permission. While in Australia a person who is of 18 years can marry someone as young as 16. In Sudan, marriage between a 10 years old girl and a boy who has either attained puberty or 15 years, is a valid marriage. 6 countries- Equatorial Guinea, Gambia, Saudi Arabia, Somalia, South Sudan and Yemen do not specify any age for marriage.
SOME COMMONWEALTH NATIONS:
Although Bangladesh has the Child Marriage Restraint Act 2017, which prohibits marriage of girls below the age of 18 and that of boys below the age of 21, however, the Act also mentions ‘special circumstances’ under which child marriage can take place and it does not mention any minimum age to marry under this special circumstance. Bangladesh has aimed to eliminate the marriage of children below 15 and reduce under 18 marriages by a third by 2021 and complete elimination of child marriages by 2041.
Singapore has strict legislation against child marriage. Under Women’s Charter 1961, a minor is one who is under the age of 21 and cannot marry without consent unless a licence of marriage is granted by the Minister. No significant cases are there in Singapore.
In the United Kingdom, the legal age to marry is 18, however, those aged between 16-18 years can marry with parental consent.
INCREASE IN CASES OF CHILD MARRIAGE DURING LOCKDOWN
COVID-19 brought the world to a standstill. It forced countries to enter into lockdown which in turn affected the economies across the globe. Apart from causing major economic injuries it also led to a rise in cases of child marriage. It took years of spreading awareness and strict implementation of laws, to reduce child marriages. But owing to the lockdown, the government officials were unable to monitor properly and the offenders took advantage of this situation.
Earlier also, a major impetus behind child marriages was to get rid of the responsibility of the girl child and also to save the dowry amount. The lockdown impacted the economy badly. Many were forced to move back to their hometowns and leave their jobs. Under the prevalent economic stress, many decide to get their under-aged daughters married. Poverty has caused several families to rethink about child marriage.
It is estimated that owing to COVID-19, approximately 2.5 million child marriages might take place[30]. This might reverse all that has been done to prevent and prohibit child marriages across the globe in the past years. Therefore, governments across the globe need to be prepared to deal with such a situation and take adequate measures to ensure that the evil practice of child marriage does not gain ground again.
CONCLUSION
Child marriage has been there in our country since time immemorial. This evil created by the society proved to be detrimental for the parties. It has caused mental, physical and economical toll on both sexes. Child marriages are a grave violation of basic human rights. Girls who are married as children are more likely to fall prey to domestic violence, leave education, face complications at the time of pregnancy and childbirth and not achieve according to their potential. Although international and regional laws prohibit the practice of child marriage, it is still there in our society. Over the years, cases of child marriages in India have gone down which has been possible because of the spread of awareness as well as judicial activism and legislative awakening. Still, we do have cases of child marriage coming up. Despite having Acts which prohibit the widespread practice of child marriage it is still a reality in India.
The situation becomes more complex because of the ambiguity and vagueness that is there in the judgment and rules for the child marriage. On one hand, penal provisions try to curb the menace of child marriage, on the other hand, there are various judicial decisions which make child marriages valid.
Concerted efforts from all the stakeholders, parties, parents and the community, is needed to make the present laws more effective which would ultimately prevent child marriages. Increasing awareness about the harmful effects of child marriages plus educating people about their rights would help to stop child marriages.
[1] ‘Child Marriage’ (2020) < https://data.unicef.org/topic/child-protection/child-marriage/> accessed on 27 October 2020.
[2] Universal Declaration on Human Rights (1948).
[3] United Nation convention on rights of child (1989).
[4] Constitution of India 1950, art 39(f).
[5] Law Commission of India, PROPOSAL TO AMEND THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND OTHER ALLIED LAWS (Law Commission report No. 205, 2008) ch 3.
[6] https://data.unicef.org/topic/child-protection/child-marriage/ <accessed on 27 October 2020>.
[7] https://terredasie.com/english/english-articles/history-of-child-marriage-in-india/ <accessed 28 October 202>.
[8] ‘Ending Child Marriage; A Profile of Progress in India’ https://www.unicef.org/india/media/1176/file/Ending-Child-Marriage.pdf <accessed on 29 October 2020>.
[9] Child Marriage Restraint Act 1929,
[10] Dr. Paras Diwan, Modern Hindu Law (24th edn, Allahabad law Agency 2019) pg 109.
[11] AIR 1986 Pat 128.
[12] Prohibition of Child Marriage Act 2006, s 3.
[13] 2008 151 PLR 326.
[14] 2017 SC 1957.
[15] Prohibition of Child Marriage Act 2006, s 4.
[16] Prohibition of Child Marriage Act 2006, s 3.
[17] 2017 SCC OnLine Mad 3565.
[18] AIR 2012 Madras 62.
[19] AIR 1977 AP 43.
[20] Prohibition of Child Marriage Act 2006, s 12.
[21] Prohibition of Child Marriage Act 2006, s 9.
[22] Prohibition of Child Marriage Act 2006, s 10.
[23] Prohibition of Child Marriage Act 2006, s 11.
[24] Prohibition of Child Marriage Act 2006, s 15.
[25] Hindu Marriage Act 1955, s 13(2)(iv).
[26] Dissolution of Muslim Marriage Act 1939, s 2(vii).
[27] The Protection of Children from Sexual Offenses Act 2012, s 5(n).
[28] (2017) 10 SCC 800.
[29] Aleksandra Sandstrom, Angelina E. Theodorou, “Many Countries Allow Child Marriage” https://www.pewresearch.org/fact-tank/2016/09/12/many-countries-allow-child-marriage/ <accessed on 27 October 2020>.
[30] Sophie Cousins, ‘2.5 million more child marriages due to COVID-19’ https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32112-7/fulltext <accessed 27 October>
This article has been written by Madhavi Raje, 2nd-year law student of Dr Ram Manohar Lohia National Law University.
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