This article is written by Arpit Goyal, a third-year law student of Maharashtra National Law University Aurangabad. In this article the writer has tried to explain child marriage, issues related to it and the various general and personal laws relating to it.
What is Child Marriage?
A marriage which is solemnized in contravention with prescribed age of marriage, by the General Laws. International Covenants such as The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and Convention on the Rights of Children (CRC) have prescribed the minimum age for marriage. In India, The Child Marriage (Restraint) Act, 1929 and now the Prohibition of Child Marriage Act, 2006 has prescribed the age of marriage which is 18 for girls and 21 for boys. In India, Child Marriage can be solemnized as per the respective personal laws and as such for the purpose of “solemnization” of child marriage, there is no single law.
What are the issues pertaining to child marriage?
- Health-related issues: A Study conducted by UNICEF on Early marriage & Child Spouses in 2001 concluded that the risk of premature labor that is the Maternal mortality amongst girls aged between 15-19 years is about three times higher, babies born to a mother under the age of 18 tend to have higher rates of child mortality and the young babies lack parenting skills and decision-making powers.
- Human Rights issues: There are human rights issues as it is the case of child abuse. It is the fit case of child abuse (LCI 205 Report on Child Marriage, 2008) as child marriage denies the basic human rights to the spouses especially the girl child such as Health, Education and Well-being. A study of UNICEF, UN Children’s Report on Early Marriages: A harmful traditional practice, 2005 has also shown that the highest rate of domestic violence among women married by 18, is higher as compared to the ordinary marriages.
Delhi High court in Association for Social Justice & Research Union of India & others, has held that child marriage is a grave form of human rights violator. Human Rights such right to education, right to development, right to health, right to employment, right to a dignified life, right to participation and well-being and personality development are being deprived to the girl child.
- Specific gender dimension: (LCI 205 Report on Child Marriage, 2008)
The girl child is the most vulnerable person in child marriage due to childbirth, rearing, bearing, domestic violence and lack of parenting skills. She is also denied of the basic education, especially in India, where the son is always preferred over the girl child.
General Law on Child Marriage
The law has failed to curb the prohibition of child marriages that are taking place across the religions, specifically Hindus in most of the cases. Many NGOs are fighting to eradicate the same and a movement is going on regarding the same. Even public interest litigations filed could not bring about any substantial difference. There is a need for sensitization in society regarding child marriage. Many attempts have been made to regulate child marriage even before the Independence of India and the commencement of the Indian constitution. Below mentioned are the general laws aimed at to regulate child marriage, though there has been no complete abolition of the same.
The Child Marriage (Restraint) Act, 1929
This was the first of its kind legislation regulating the “child marriage” by prescribing the required age of marriage for both the parties to the marriage across India. This act aims to restrain the child marriage.
In the case of Sushila Gothala vs. State of Rajasthan the court stated that the minimum required age for marriage is 18 years for girls and 21 years for boys.
The Prohibition of Child Marriage Act, 2006
The Prohibition of Child Marriage Act, 2006, is aimed to
- Punish the ones involved in the performance of child marriage, and
- To provide a legal opportunity to both the spouses of child marriage to repudiate the marriage, by way of a decree of nullity. (Voidable & Void)
The present law is gender neutral in providing the right to both the boy and the girl child of forced marriage. The Prohibition of Child Marriage Act, 2006, may be viewed as:
- General and secular legislation (which is applicable to all the citizens of India).
- Penal legislation.
- Social and progressive legislation.
- Matrimonial legislation, only to regulate “child marriage”, having a uniform application (Status of child marriage).
The matrimonial angle of The Prohibition of Child Marriage Act, 2006:
“Child Marriage” in all the situations is not something which has been declared as invalid. But, the legal validity of any marriage in India, is decided on the touchstones of family law. But there are some provisions of this Act which may be taken into consideration so far as the legal validity of child marriage is concerned. The Prohibition of Child Marriage Act, 2006 has incorporated some ancillary rules relating to the “maintenance” and “the legitimacy of the child” of such child marriage.
The status of child marriage according to Section 3 of The Prohibition of Child Marriage Act, 2006 is voidable Marriage. Section 3 of the Act states that the child marriage is voidable at the option of both the party and the petition may be filed at any time but before completion of two years of attaining majority, before the District Court.
Whereas, the status of child marriage as per Section 12 of The Prohibition of Child Marriage Act, 2006 is void Marriage. Section 12 of the Act states that child marriage is void in the following circumstances when the minor:
- Is taken or enticed out of the keeping of the lawful guardian; or
- by force compelled, or by any deceitful means induced to go from any place; or
- is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.
Section 4 and Section 5 of the Prohibition of Child Marriage Act, 2006 provides maintenance to the girl child and legitimacy of the child so born of child marriage. Section 4 states that the district court may make maintenance, residence, and custody of the child order during such petition in favor of the female spouse until her remarriage and Section 5 states that the child born of such marriage is deemed legitimate.
The Indian Penal Code- Child Marriage and offence of Rape
The primary consequences of child marriage are a physical relationship between the husband and a girl and the procreation of children. These consequences are to be seen in the light of Section 376 of the Indian Penal Code, 1860 wherein in certain cases sexual intercourse with a woman with or without consent is an offense of rape. Section 376, Exception 2 states that “Sexual intercourse or sexual act by a man with his own wife, the wife not being under the age of 15 years, is not rape.”
Certain situations and the offense of rape are as follows:
- Above 18 +Consent= No Rape
- Above 18 + No Consent= Rape
- Below 18 + With or without consent= Rape
- Above 15 + Girl being Wife + With or without consent= No Rape
- Below 15 + Girl being wife + With or without consent: Rape
Keeping in view the above scenario, it appears that the Indian Penal Code has:
- Saved the institution of marriage, and
- Endorsed, indirectly, the fact of child marriages taking place in the society and as per personal laws (because sexual intercourse with a wife who is between 15-18 years of age, does not constitute rape).
Law Commission of India, 205 Report on Child Marriage, 2008
The Law Commission of India Report in 2005 recommends the following things:
- The child marriage below 18 for both girls and boys should be prohibited.
- The marriage below the age of 16 be made void and while those between 16 and 18 be made voidable.
- The provision relating to maintenance and custody should apply to both void and voidable marriages.
- Registration of marriage be made compulsory.
Personal Law and Child Marriage: Validity and Consequences
Child Marriage in Hindu Marriage Act, 1955
Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence on the part of the legislature in Section 11 & 12 and express rule in the form of provision of Section 13 (2) (iv), renders it as valid. As a result of silence on the part of the legislature in Section 5, 11 & 12 and express provision under Section 18 of Hindu Marriage Act, child marriage is valid as seen in the case of Manisha Singh vs. State of NCT
In Neetu Singh VS the State & Ors. the High Court of Delhi held that the marriage of minor is neither void nor voidable, but is punishable.
Under the Hindu Marriage Act, none of the parties have the option to repudiate the child marriage by way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs. State of Rajasthan directed that State should take necessary steps to stop the menace of child marriage by punishing all involved in such marriages. As a result of which, the Chief Minister of Rajasthan had made a special appeal to all its people in the State to prevent these child marriages.
Nevertheless, a female child has been given right to repudiate the marriage under Section 13 (2) (4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the exercise of power by the legislature under Article 15 (3) of the Indian Constitution.
In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu Marriage Act, 1955 and express provisions in the same, the status of child marriage in Hindu Marriage Act, 1955 appears to be uncertain. There is a possibility of two arguments in this context:
- That the child marriage in Hindu Marriage Act, 1955 is not valid in view of Section 5, or
- That the child marriage in HMA is neither void nor voidable but renders valid.
It would be further proper to refer to some judicial pronouncements, in order to know the judicial position:
In P. Venkataramana vs. State, the Andhra Pradesh high court noted that such marriage in Hindu Marriage Act, 1955 is not void, by observing that had the lawmakers intended that they would not have given to a wife the right to repudiate her marriage solemnized before the attainment of the age of 15 years. Moreover, the high court observed that neither under Section 11 nor under Section 12 of the Hindu Marriage Act, 1955 there is any mention of marriage in contravention of Section 5 (iii).
Supreme Court in Lila Gupta vs. Lakshmi Narayan, laid down that though Section 5 (iii) of the Hindu Marriage Act prescribes a minimum age of marriage, a breach of this condition does not render the marriage void. The court, in this case, observed that it would be hazardous for marriage laws to treat a marriage in breach of a certain condition as void even though the law does not expressly provide for it. This case was concerning the rights of a widow to inherit her deceased husband’s property against the claims of her brother-in-law and nephew who had challenged the validity of her marriage.
The same approach was taken by the Karnataka High Court in V. Mallikarjunaiach vs H.C. Gowramma. In this case, the husband had sought a declaration from the trial court that his marriage was void since he had not completed the age of 21 at the time of marriage. According to the court, the law does seek to discourage marriage of underage boys and girls but not to the extent of making the marriage void or voidable.
Andhra Pradesh High Court in Kokkula Suresh vs State of AP, held that such marriage is neither void nor voidable but valid. Court also recognizes the husband as the guardian of the girl child (female spouse) and he was entitled to her custody.
However, Madras High Court in T. Siva Kumar vs Inspector of Town Police Station has taken a completely different outlook. It was held that even though a marriage contracted by a person with a female of fewer than 18 years is voidable and subsists until it is annulled by the Court, the marriage though not invalid but is also not a valid marriage in strict sense and the male does not have all the rights which would otherwise emanate from a marriage which is valid in a strict sense.
Child Marriage in Muslim Personal Law (MPL)
Capacity in which a Muslim can marry:
- Sound mind
Majority as per Muslim Personal Law is presumed that a Muslim attains majority at the age 15. Privy Council in Nawab Sadiq Ali Khan vs. Jaya Kishori said that the majority in the case of a girl is attained at the age of 9, whereas Hedaya law states that the earliest period for a boy is 12 years and for a girl is 9 years.
Marriage of a Minor Muslim as per Muslim Personal Law
The marriage is consummated when the Muslim is below the above-mentioned age and is a minor. The marriage of a minor may be solemnized with the consent of a guardian. Such a marriage, although valid, is capable of being repudiated by the Muslim minor through the option of puberty.
Consequences of a Minor’s marriage (Child marriage) in Muslim Personal Law:
In order to know the consequences of minor’s marriage in MPL, the following points must be taken into consideration:
- Marriage of two Muslims who have attained the age of puberty i.e. Major is VALID.
- Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor is INVALID.
- Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor but the marriage is with the consent of guardians is VALID.
- Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor but the marriage is solemnized with the consent of the guardians, then the minor (both parties) on attaining puberty, may repudiate the marriage with the consent of a guardian, provided marriage is not consummated (Option of Puberty).
- Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor but solemnized with the consent of guardians then the female spouse can divorce the male spouse under Section 2 (vii) of Dissolution of Muslim Marriage Act, 1939, provided marriage is not consummated (Right of divorce).
The option of puberty and Repudiation of marriage
“Option of puberty” is a right which is given to both the parties of the Muslim marriage to repudiate i.e. to cancel the marriage, if solemnized during minority, with the consent of their guardian. For the purpose of marriage in Muslim Personal Law. They can exercise this option on attaining the age of 15, as this is the age where it is presumed that parties are major so far as marriage is concerned. As far as the exercise of option of repudiation is concerned, it is must that the child marriage (marriage solemnized during minority) must be valid (must have been done with the consent of legal guardians).
Following are the ingredients which are to be established in order to exercise this right:
- Marriage during minority with the consent of father or guardians for the said marriage, and
- Attainment of Puberty (Majority i.e. 15).
In Behram Khan vs. Akthar Begum , it was held that ‘Consummation of marriage before the age of puberty does not deprive the wife of her option. But the consummation of marriage after attaining puberty disables the person from exercising the right of repudiation/option of puberty.
Repudiation of marriage
Repudiation of marriage is an act of either of the parties to annul or cancel the marriage solemnized. It is the personal declaration or the wish of a person to declare so, unlike in the Hindu Law, Muslim law has permitted both the parties to the marriage to exercise this option.
Modality & Consequences of Repudiation of Marriage
Repudiation is an act of parties thereby either of the parties to the marriage can avoid the marriage, by expressing/pronouncing/communicating, the cancellation of marriage. However, there is a time limit for the same for wife it is till she attains the age of 18 and in case of a boy i.e. the husband, there is no such time limit.
An individual act of cancellation, per se, cannot avoid the marriage or marital tie. The necessary court order/decree/judicial confirmation is a must to avoid the same. In the meantime, the parties remain married and
- If either of them dies, the other will inherit to him or her in the capacity of a spouse.
- If establishes a sexual relationship that won’t be unlawful.
Divorce on the basis of Repudiation (under Dissolution of Muslim Marriage Act, 1939)
Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 states that: …that she having been given in marriage by her father or another guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years, provided that the marriage has not been consummated.
Interpretation of Section 2 (vii)
- Section of 2 (vii) is in the nature of the right of divorce, therefore applicable only to a valid Muslim marriage.
- This provision is applicable only to a female spouse.
- No time limit is framed therein to exercise this right of divorce but for the act of repudiation, there is a limit i.e. till she attains 18 years.
- This provision has, by necessary implication, incorporated the age of puberty i.e. 15 years.
- For the purpose of divorce under this section, she has to establish a valid repudiation.
- Section 2 (vii) has regulated her “right of repudiation” (option of puberty) in the sense that she has to exercise the said right within the span of three years i.e. between the age of 15 years to 18 years.
Requirements u/Section 2 (vii): For the purpose of the exercise of the right of divorce as per this provision, the following essentials have to be satisfied by her:
- That she was given in marriage by a father or guardian when she was a minor (Marriage during minority)
- That she has repudiated the said marriage
- After attaining puberty and
- b) Before attaining 18 years of age; (Repudiation of marriage “after” & “before”) and
- Marriage has not been consummated (No consummation of marriage)
Loss of her Right of Divorce
Her right of divorce in this connection is lost the moment when:
- She fails to repudiate the said marriage before attaining 18 years (it shows her willingness to continue with the said marriage);
- She establishes sexual relationships with the male spouse (it shows her willingness to continue with the said marriage and sexual relationship and procreation are the legal incidence of marriage)
However, the Rajasthan High Court in Shabnam vs Mohd Shabir , held that the girl would not lose her right of divorce if marriage is consummated before she attains the age of 15 years.
Some of the judicial pronouncements for the age of puberty
Privy Council in Nawab Sadiq Ali Khan vs. Jaya Kishori, says that the majority in the case of a girl child is attained at the age of 9.
Md. Idris vs. State of Bihar and Ors., Patna High Court ruled that as per the interpretation of Muslim law, by Mulla, in Mulla’s Text on Principles of Muslim Law, the age for a girl to attain puberty is 15 years of age.
The similar has been reiterated by the Delhi High Court in Mrs. Tahra Begum vs. State of Delhi & Ors that the age of puberty is 15 years of age and girl is free to marry anyone of her choice, regardless of the consent of the legal guardian. Court acquiring the accused-husband of charge for kidnapping held that she is at liberty to decide when to marry and where to live. The Delhi high court laid down the following points in this connection:
- Marriage solemnized after attaining puberty would not be void.
- Age of puberty is the requirement of marriage under Muslim Personal Law.
- Muslim girl is at the liberty to reside with the husband.
- Muslim girl can marry without the consent of her guardian in the event of puberty.
- Muslim Girl who attained puberty i.e. 15 years of age can marry and as such the marriage is not void.
- Muslim Girl, however, has the option of repudiation of marriage.
But in the same year, ignoring well-settled law pertaining to the age of marriage in Muslim personal law, Karnataka High Court took a contrary approach in Mis. Seema Begum vs. State of Karnataka. In this case, the declaration was sought by a Muslim girl, who was 16 years of age when a petition was filed, that she is not governed by the provisions of Prohibition of Child Marriage Act, 2006 and in her case, it is the Muslim personal law, which has allowed her to marry on 15. The petition was rejected and no such declaration was issued in her case. Karnataka High Court, accordingly held:
- That a Muslim girl is not free to marry on her own before the attainment of the age of majority or the required age of marriage i.e. 18 years of age as per the definition of “child” under Section 2 (a) of Prohibition of Child Marriage Act, 2006.
- That the statutory law (Prohibition of Child Marriage Act, 2006) will prevail over the un-codified personal law (Muslim personal law).
- That Prohibition of Child Marriage Act, 2006 is applicable to all the Indian citizens uniformly irrespective of their religion.
- That despite Delhi High court ruling that a Muslim girl can marry before 18 years of age.
Therefore, child marriage of two Muslims could be terminated in the following way:
- Avoidance of Marriage: Option of Puberty (followed by judicial order).
- Avoidance of Marriage under Prohibition of Child Marriage Act: Decree of Nullity.
- Dissolution of marriage: Divorce & Talaq.
Status of child marriage in Personal Laws
The Special Marriage Act, 1954
Hindu Marriage Act, 1955
Indian Christian Marriage Act, 1869
The Parsi Marriage and Divorce Act, 1936
Muslim Personal Law
Section 4 (c) read with Section 24 (1) (i)
Section 5 (ii) read with Section 13 (2) (4)
Section 3: Minor read with Section 19
Section 3 (c)
Principle of Puberty read with Section 2 (vii) of Dissolution of Muslim Marriage Act, 1939
NEITHER VOID NOR VOIDABLE (But she can move a petition for divorce)
RENDERS VALID (By consent of guardian)
VALID (But she can move a petition for divorce)