This article has been written by Vibhuti, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Table of Contents
Introduction
Childhood is considered a golden period of a person’s life. Any person in his childhood is too innocent to understand the cruelty and harshness of society. A person can be shaped in his childhood period only, but due to some evil practices in society, the future of the beautiful and innocent children gets sacrificed and destroyed. One of these evil practices is the practice of child marriage.
Child marriage is a worldwide problem but South Asia is home to 40% of the world’s child marriages. However, India is making great progress at the end of child marriages.
Child marriage is a practice that has existed for a long time in India, in fact, still exists in many parts of the country. As reported by the DNA web team, the present percentile of child marriages in India is 47. The state of Bihar has the highest rate by 60%.
United Nation Children’s Fund (UNICEF), a United Nations agency considers the practice of child marriage as a violation of Human Rights.
An act to restrain the solemnisation of child marriage was enacted by the British Government called as “Child Marriage Restraint Act, 1929, also called Sarda Act.” But due to its poor and ineffective implementation, even after several amendments, it failed to achieve its objectives.
After the failure of the Child Marriage Restraint Act, 1929, for the purpose of prohibiting child marriages, the Prohibition of Child Marriage Act, 2006 was enacted by the Government of India as a replacement to the previous act.
Child marriage as defined in Section 2 of the Prohibition of Child Marriage Act, 2006, is a marriage in which the female has not completed 18 years of age and the male has not completed 21 years of age. Factors that promote child marriages include: poverty, gender inequality, illiteracy, dowry demand, considering daughters an economic burden, social customs, traditions, cultures, etc. Poverty and Illiteracy are the major factors promoting child marriages.
The problem of child marriage is rooted in the villages of India for decades, so it will take a long time for the Government of India to solve this problem.
Factors of child marriages
- Poverty – Poverty is the major factor leading to child marriages. In some rural areas, poor parents even sell their daughters to rich men just for some money. Due to their poor conditions, they consider their daughters a burden in their life and have no financial support to educate or send their daughters to schools.
- Gender inequality – Another factor of child marriage is gender inequality. Gender inequality is the key cause of child marriages. Illiterate people consider their daughter a ‘burden’ even the rich people in some rural areas have this kind of thinking that ‘betiyan bojh hoti hain’. Just to get rid of their expenses, they marry their daughters in their childhoods. According to them, sons are better than daughters. Due to this gender inequality, the next generation also gets this thinking of not respecting girl children.
- Illiteracy – Illiteracy is the prime reason for child marriages. People have narrow minds because of Illiteracy, they are not aware of how daughters are equal to, even better than sons in every field. Because of their illiterate mind, they consider daughters only a burden, and that they will have to give dowry to her in-laws at the time of her marriage.
- Dowry demands – Dowry demand by in-laws of the daughter force the society to think of daughters as a burden and results in child marriages where they will not have to pay much dowry to the in-laws.
- Social customs, traditions and cultures – In many rural areas of the country, child marriages prevail. They are influenced by the customs, norms, beliefs and traditions.
The Prohibition of Child Marriage Act, 2006
According to this Act, any marriage in which either or both of the contracting parties is a child will be considered as ‘Child marriage’. According to section 2 of the Act, a Child is any male who has not completed the age of 21 years and any female who has not completed the age of 18 years of age.
Unlike the previous Act, it covered all the specific areas of the offences and mentioned their punishments.
Under this Act, any person for performing, abetting, conducting, or directing a child marriage would be punishable with rigorous imprisonment for a term which may extend to two years and a fine which may extend to one lakh rupees.
Any person who promotes or permits child marriage would also be liable for rigorous punishment of imprisonment for a term which may extend to two years and a fine which may extend to one lakh rupees.
Any adult male who contracts a child marriage shall also be punishable with rigorous imprisonment for a term which may extend to two years and fine which may extend to one lakh rupees.
Objectives of the Act
- To prohibit the solemnization of child marriages.
- To protect the victim of child marriages.
- To provide relief to the victim of child marriages.
- To punish any person who performs, encourages or promotes child marriages.
Indian Penal Code, 1860
Under Section 375 exception 2 of IPC, if the wife is not less than fifteen years of age, then her husband can have sexual intercourse or sexual acts without her consent, and would not amount to Rape.
This marital rape exception of IPC contradicts with the provisions of the Prohibition of Child Marriage Act and discriminates between a married and unmarried girl child of below 18 years of age.
POCSO Act
POCSO Act stands for Protection of Children from Sexual Offences Act. The Act was enacted to protect children from all kinds of sexual offences in 2012. Unlike the Indian Penal Code, the Act provides protection against sexual offences for boys as well.
Unlike IPC, the POCSO Act holds no such exception to have sexual intercourse with a girl child even after marriage. Any child below eighteen years of age will be considered as a child, whether married or unmarried. To remove the confusion that whether IPC shall prevail or the POCSO Act, the Criminal Law Amendment Act, 2013 amended Section 42. Section 42A of the Act, after amendment, states that the provisions of the POCSO Act shall be in addition to and not in derogation with the provisions of any other law, in case of inconsistency, the POCSO Act shall override.
POCSO over Indian Penal Code
The POCSO Act punishes for sexual offences with a child under 18 years, and after the Criminal Law Amendment Act 2013, the POCSO Act even got an overriding effect, but still many courts gave the exception under IPC preference in sexual offence cases against a child in child marriages, such as in cases Yubusbhai Usmanbhai Shaikh vs State of Gujarat, Mujamil Abdul Sattar Mansuri vs. the State of Gujarat.
To bring an end to this confusion and loophole between the two Acts, Supreme Court amended exception 2 of Section 375 of the Indian Penal Code.
In the case Independent Thought Vs. Union of India 2017, the Supreme Court amended exception 2 to Section 375 which now is stated as – “if the wife is not less than eighteen years of age, then sexual intercourse would not amount to Rape.”
In this particular case, Justice Madan B. Lokur beautifully wrote, “A child remains a child whether she’s a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she’s married, unmarried, divorced, separated or a widowed child. Shakespeare’s eternal view was reminded that a rose by any other name would smell as sweet – so also with the status of a girl child, despite any prefixes.”
Conclusion
The practise of child marriage is like a termite in the country. It is eating the country from inside. Illiteracy and poverty are the major factors contributing to the problem of child marriages. The girl child is the one getting most affected by this practice. They are sold to adult males for some money. They are considered a burden by the poor family members. They have to discontinue their education and suffer domestic violence, early pregnancy, mental and physical torture. The serious problem of child marriage requires more serious and stricter laws in the country. Various laws are made in relation to protect the rights of children, which are slowly being implemented in the country which is itself a milestone. Effective implementation and awareness of these legal provisions and punishments are the only methods for saving the victims of child marriage and provide them a happy and safe childhood.
References
- The Prohibition of Child Marriage Act, 2006
- Indian Penal Code, 1860
- POCSO Act, 2012
- Independent Thought Vs Union of India, 2017
- Criminal Law Amendment Act, 2013
- United Nations Children’s Fund (UNICEF)
- Yubusbhai Usmanbhai Shaikh vs State of Gujarat
- Mujamil Abdul Sattar Mansuri vs. State of Gujarat
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