This article is written by Udita Prakash, a student at UPES, Dehradun. This article is a critical analysis of child marriage across India and vis-a-vis Hindu Law.
Table of Contents
Child marriage has been a deep-rooted and very prominent issue in Indian society. It is not only an activity that violates the law, but it also grossly violates the human rights of the children involved in the marriage. Child marriage has been practiced to lessen the educational and economic burden of the girl child on her parents and is still prevalent in various states, Rajasthan, Uttar Pradesh, and Madhya Pradesh being the major states. The marriage of a girl before the age of 18, and of a boy before the age of 21 can be detrimental towards them in various ways. Child marriage is a violation of human rights. Every child has the right to be protected from this harmful practice, which has devastating consequences for individuals and society. Abolition of child marriage is now firmly on the global development agenda, especially through its inclusion in target 5.3 of the Sustainable Development Goals (SDGs), which aims to eliminate the practice by 2030. Regardless of gender, marriage before adulthood is a violation of the rights of the child. The scope of this article is the challenges faced to bring child marriage to an end, and also the lack of awareness among the people about child marriage. I have dealt with the history of child marriage till the current scenario.
The practice of child marriage is regarded as a grave violation of the human rights of the children by UNICEF. This practice also goes against the provisions of the Constitution of India, as it compromises on various aspects like the right to education, equality, etc. The major victims of this practice are minor girls, who are married off at a young age. Child marriages are practiced in communities that are socially, economically, and educationally backward, and the major reason for marrying off a daughter at a young age is to maintain stability without having to spend too many resources on her education or well-being. The concept of child marriage impacts the mental as well as physical health of minors. For a minor bride, the institution of marriage before attaining majority also affects her sexual health, they are deprived of critical nutrition too, which subsequently affects their mental well-being. Child marriages also hamper the overall development and growth of minors, so their education might come to a halt as well. Early pregnancies also increase the rate of infant and maternal mortality. Early pregnancy and lack of proper nutrition during the gestation period also pose higher risks of fetal deformities and diseases. All this also deprives them of better educational and employment opportunities in the future. At present, even after seventy-five years of Independence, the incidents of child marriage are rampant. What is the bigger problem is that the majority of these marriages still go unnoticed in the nation. Many schemes and plans have been made by the Government, but their implementation still fails to prevent a lot of girls from being married at an age below 18.
Child marriage has existed as a social evil in society for a very long time. The time since when it was performed is uncertain, but the age of marriage has evolved over time. In the older times as well, the major victims were girls, who were married at a very young age. Patriarchy is so deep-rooted that even today, minor girls bear the major brunt of this social evil. Under the uncodified provisions of the Hindu Law, different schools prescribe different ages for getting married. The Mitakshara School gives an age of sixteen years and as per the Dayabhaga School, the completion of fifteen years of age is considered to be mandatory for the institution of marriage.
When the Indian Penal Code, 1860 was initially drafted in 1846, sexual intercourse between spouses under the age of 10 years was considered to be an offence. In the case of Queen Vs. Haree Mohan Maythe, (1890) a young girl of 11 years of age died due to injuries incurred due to sexual intercourse with her husband, whose age was 35 years.
Such incidents became imperative to observe the repercussions of child marriages on the overall health of the spouses. Subsequently, in 1891, the age was raised from 10 years to 12 years. This was once again changed in 1921 when the age was raised to 13. This was done to prevent girls from immature cohabitation. Thereafter, a Bill was introduced by Rai Sahib Sarda. In accordance with this Bill, a restriction was implied on the solemnization of marriages of minors. This Bill was called the Sarda Bill and was later included in the Child Marriage Restraint Act, 1929.
At numerous times, the doctrine of factum valet has been applied to the concept of child marriage. The doctrine says that an established fact cannot be altered by subsequent explanations. If a marriage has been instituted between two people, even if one of them is a minor, the fact is established, and no law that is contrary to the same can change it.
In a number of cases in earlier times, the validity of child marriages was upheld. In the case of Venkatacharyulu v. Rangacharyulu, (1890) the Court upheld a child marriage, as the solemnization of marriage is considered to be very sacred in the Hindu religion. It binds the life of the two people as it is completed by the ‘saptapadi’, hence creating a sacred bond between the two people. Hence once this tie is created, it cannot be undone. The institution of marriage is sacred, and cannot be broken like a normal contract. Hence even if the marrying party is a minor, or of unsound mind, the marriage is valid in nature. The case of Naumi v. Narottam (1983) also upheld child marriages and it was stated that they are neither void nor voidable and are valid in nature. Seeing this general approach of the courts with respect to child marriages in the country, the 59th Law Commission Report suggested that even though the stance of the legislative provisions was not concrete, the concept of child marriage should be discouraged and prohibited. Thereafter, in the case of Panchireddy Appala Suramma V. Gadela Ganapati (1974), a pivotal decision was observed, wherein the Court said that child marriages were void ab initio and could be declared to be null and void by approaching the Court. Similarly, in the case of Krishna Devi v Tulsan Devi (1972), the validity of child marriage was not accepted by the Court. However, in the case of P. Venataramana v. State of Andhra Pradesh (1976), the Court once again upheld the validity of child marriage. This was done with respect to the fact of the legitimacy of the children being born out of such marriages.
Hence the history is full of cases, wherein the stance of the court has varied at different points and with different circumstances, owing to the ambiguity of the provision for the legality of child marriages.
The legislative framework in India
Hindu Marriage Act, 1955
In 2006, India passed the Child Marriage Prohibition Act (PCMA) to combat the widespread practice of child marriage. The PCMA prohibits the solemnization of child marriage of those under 18 for girls and 21 for boys and allows marriages of children that have already taken place to be voluntarily annulled by the child who was part of the marriage within two years. The Hindu Marriage Act, 1955 is a grundnorm that is followed by the majority of Hindus in India for the provisions related to the institution of marriage. It lays down provisions for the solemnization of marriage between Hindus. Section 5(iii) of the Act establishes a requirement for the solemnization of marriage. The requirement being the completion of 21 years of age of the bridegroom, and the completion of 18 years of age of the bride at the time of marriage. At an earlier time, this prescribed age was 15 for the bride and 18 of the bridegroom respectively, and before the year of 1978 marriages of children below these ages were considered to be valid with the condition precedent of the consent of the guardians of both the parties. However, post the amendment, the requirement of consent of the guardian became redundant as the age of 18 and 21 do not require consent.
Section 5 of the Hindu Marriage Act, 1955 provides the grounds required for the solemnization of marriage between two Hindus. It also gives provisions for void marriages, as well as voidable marriages (marriages considered and declared to be null and void by the consent of one party). Hence any marriage that is solemnized out of the scope of Section 5 is declared to be void or voidable in nature in accordance with the provisions of Section 5.
Section 11 states the conditions for the marriage being void and states that the marriage is null and void since the beginning if it contravenes clauses iv or v of Section 5 respectively.
Section 5(iv) deals with prohibited relationships, whereas Section 5(v) states the sapinda relationship between individuals. The sapinda relationship is determined through the lineage of both partners. If they have common ancestors, three from the maternal side or five from the paternal side, they are considered to be sapindas, i.e., associated with the same point. One exception wherein marriages falling between prohibited relationships or sapinda relationships are considered to be valid in case it is permitted by any custom or usage.
Section 12 deals with marriages that are voidable in nature, and certain grounds have been provided for the same. These include:
- Non-consummation owing to the impotency of the partner;
- Forceful consent of the party/guardian;
- Pregnancy of respondent by someone else.
Section 5(ii), i.e. the party is unable to give valid consent owing to unsoundness of mind, mental disorder making him/her unfit for marriage and procreation, insanity. It is observed that the sections do not talk about the status of child marriage expressly. Section 5 however sets up a minimum age for solemnization of a marriage between two people. Section 18(a) of the Hindu Marriage Act, 1955 prescribes the punishment for not following the minimum age criteria stated under Section 5(iii) respectively. It gives the punishment of rigorous imprisonment of two years and a fine extending to rupees one lakh, or both.
Validity of child marriage under Hindu Marriage Act
Even though it has been mentioned in the Hindu Marriage Act, 1955 that the minimum age for getting married for a girl is 18, whereas for a boy is 21, and it also prescribes punishment for incidents where these criteria are not followed, there are certain other provisions under the Act that make the situation dicey and pose questions upon the validity of child marriages.
Section 13 of the Hindu Marriage Act gives different grounds for divorce. Clause 2(iv) provides a ground of divorce wherein a girl who is married before the age of fifteen refuses to believe in the institution of marriage between the age of 15 to 18 years. This is irrespective of the consummation of the marriage. Hence, the provision provides a slippery slope to the status of child marriages, as the ground for divorce would only be pertinent if the marriage is of a valid nature.
Furthermore, if the girl does not repudiate the marriage in the given time frame, i.e. before attaining the age of 18, the marriage continues to stay valid post her majority as well. Another anomaly is the provision of restitution of conjugal rights under Section 9 of the Hindu Marriage Act.
In the case of Mohinder Kaur v. Major Singh, (1971) it was contemplated that the wife left her husband and started living with her parents, subsequent to which he filed a suit for restitution of conjugal rights under Section 9. The contention of the wife here was that she was only 11 years of age when the marriage was solemnized, and hence it was in contravention with the provision of Section 5(iii) of the Hindu Marriage Act, 1955. However, it was observed that the only punishment prescribed for the contravention of this provision was imprisonment and fine (or both) in accordance with Section 18. The Court observed that the Act nowhere specified that the marriage would be affected anyhow. Hence the plea for the restitution of conjugal rights by the husband was accepted by the Hon’ble Court.
Prohibition of Child Marriage Act, 2006
Prohibition of Child Marriage Act, 2006, the objective of this Act is to prohibit the solemnization of marriage when the groom or the bride is under the minimum age for marriage (18 years in the case of girls and 21 years in the case of boys). To ensure that child marriage is eradicated from society, the Government of India enacted the Prevention of Child Marriage Act of 2006 replacing the previous legislation of the Child Marriage Restraint Act of 1929. This new law is equipped with enabling provisions to prohibit child marriage, protect and provide relief to victims, and enhance punishment for those who instigate, promote, or solemnize such marriage.
The Child Marriage Restraint Act, 1929 – why was it repealed
The Child Marriage Restraint Act, 1929, contains provisions restricting marriages, the current law prohibits child marriages, while the Child Marriage Prohibition Act 2006, has a threefold purpose: to prevent child marriages, protect children from such marriages, and prosecute offenders. It also declares child marriage as a recognizable crime and not subject to bail. Unlike the 1929 law, it also annuls this solemnization. If we take a look at recent times, we will realize that even though we have had laws prohibiting child marriages for 90 years, we have not managed to eradicate this evil in its entirety. These incidences of child marriages are highest among the socially, culturally, and economically backward sectors. Even today, child marriages account for approximately 27 percent of marriages in our country. Keeping in mind the absence of clear laws regarding the status of child marriages, the area is rather grey rather than a clear black and white.
Constitution of India
The Supreme Court of India has recognized that child marriage is discriminatory and constitutes a violation of the constitutional rights of women and girls, it limits the equal benefit of the law and denies girls a free and dignified life. The lower courts of India have also listed several rights that fall within the realm of the right to life and personal liberty that protect against child marriage, including the following:
- Right not to be subjected to torture or cruel, inhuman, and degrading treatment,
- Right to health, reproductive health, and survival from pregnancy and childbirth,
- Right to autonomy, dignity and reproductive rights,
- Right to privacy, which includes the protection of the personal privacy of the home, family, marriage, motherhood, procreation, and raising children.
Indian Penal Code
Child marriages are not specifically penalized by the IPC, but Section 366 on forced marriage establishes the kidnapping or abduction of a woman to force her to marry and the use of any method of coercion as a punishable offence. The IPC also contains other provisions that may be applicable to child marriage in certain cases, such as Section 496 establishes that going through a marriage ceremony with fraudulent intent is a punishable offence. Under Section 340 the crime of wrongful confinement is that kind of wrongful restraint where the restraint is total and the victim is not allowed to proceed in any direction beyond a circumscribing limit. The language of this section shows that the crime of wrongful confinement is defined with the help of another crime, wrongful restraint. The continuum of damages resulting from child marriage can also lead to violations of various provisions of the IPC and related laws that criminalize violence against women and children.
Challenges faced in India
The ambiguity of the legislative provisions also poses numerous challenges to the status and validity of child marriage in the country. The government has the obligation to act with due diligence to prevent, protect, prosecute, punish and repair acts that excuse or perpetuate child marriage, through both legislative and institutional mechanisms. The government’s failure to establish accessible accountability mechanisms and procedures to seek legal redress for child marriage violates its obligation to guarantee legal remedies for human rights violations. In addition to the procedural barriers to filing claims that exist within the Prohibition of Child Marriage Act (PCMA) itself, there are also several structural and social barriers in the government’s legal and institutional mechanisms that impact the effective implementation of the legal framework on child marriage, including in the PCMA, religious laws on marriage, guardianship laws, and other civil and criminal laws on the rights of girls and women. Implementation of the law is hampered by poor infrastructural support and further weakened by the lack of availability of adequate and equitable legal remedies due to the lack of effective institutional policies. Compounding the effects of these infrastructure gaps are ingrained social norms that make it difficult for girls to exercise agency to get out of child marriages.
Failure of implementing legal policies against child marriage due to lack of structural support
The first and foremost challenge faced in India in implementing laws against child marriage is that India lacks structural support. No doubt that PCMA has been made for the prohibition of child marriage but only bringing the Act into existence is not helpful. The implementation of the Act to be carried out efficiently is also required. But if we ask this question ourselves, can we see that the Act has been implemented the way it should have been implemented. The answer to this question is no and the same could be proved by the fact given below.
According to the PCMA, each state government has to draft rules for the implementation of the Act and each state has to appoint trained Child Marriage Prohibition Officers (CMPO) who should know what their duties are. But in reality, this has not happened because currently only 24 states and union territories have drafted rules according to the PCMA whereas only 20 states and union territories have appointed CMPOs. Even after the requests made by the Ministry of Women and Child Development of India (MWCD), state governments have not provided any data on the implementation of these rules. In many states where CMPOs have been appointed, they are not the ones who are specifically appointed for this purpose but they are those officers on whose shoulder extra duty is transferred to look after the prevention of child marriage.
In India, laws are framed but the executive often fails to properly implement them, and as a result those who need to be saved often suffer. Now you think to yourself if the foundation of the building itself is not strong then how come the building will be able to handle itself. In simple and legal words if the law itself is not implemented in the way it should have been then no one can save those who are the victims. Therefore, lack of structural support is one of the challenges that are faced in implementing legal policies against child marriage.
Social barriers in reporting of cases and filing of complaints
When we bring the law into existence it is important that everyone should be made aware of the Act and also should be made aware of the rights and liabilities and duties that they have with them. It is important that the married girls, family members, concerned individuals, and the government officials that include CMPOs also should be aware of their legal rights and the mechanism available to them when they want to file a case against child marriage. But it is not easy as it seems and the reason for that is the social norms or should we say social barriers. We live in a country where customs and traditions are given more importance than the law. Many people believe that child marriage is not illegal and is justified because it has been followed for years. It has been a tradition that they follow just like the other traditions. Due to this reason, one may fail to file any complaint because they are always stopped by saying ‘that this is what that has always been followed and now you have to also follow it’ or ‘if you will go file a complaint then it will result in a loss of their reputation’ and due to this one can’t prevent the child marriage.
A study has shown that the girls whose child marriages were prevented have often faced stigma or violence from their families and have suffered. Instead of thinking about their child, they are more concerned about their family reputation if the girl remains unmarried because in some places it is still believed that if a girl calls off the wedding then no one would come to marry her again. In some places, the girls and their families may also have to face Khap Panchayats, who are conservative extra-judicial bodies present in villages whose aim is to enforce caste structures and set unofficial laws that concern marriage and daily life. They play a significant role in the promotion of child marriage in several states.
Now one may think if these conditions exist then how will one fight for his or her rights. Those who are victims of child marriage often stop themselves from filing complaints because they are forced to marry in the name of their family dignity and honor. One can always fight with the law but one can’t fight against these social norms or traditions alone until everyone comes together and fights these barriers. Therefore social barriers are also one of the challenges that exist in preventing child marriages.
Prosecution of cases
The next challenge that often arises is that even if a complaint is filed, the court does not give judgment on all the cases. Has the court convicted those who are actually liable for child marriage in the cases before the court? Even after child marriages are reported there are only a few cases that are fully prosecuted. It has been recognized by the Supreme Court that the prosecution for the promotion or solemnization of child marriages under the PCMA is “abysmally low” in the given incidence of child marriage.
A study has shown that even though 47 percent of girls were married as children between the years 2005- 2013, only a few cases were registered under the PCMA. Furthermore, the PCMA has one of the highest percentages of cases pending for disposal. In addition, a little more than one-fourth of the trials were completed where only 40 people were convicted for the offense of child marriage.
Lack of available legal remedies
There are legal remedies available for those who have become the victims of child marriage but they are not enough and those remedies which are available may be difficult for some to avail. The right to remedy has been provided by the International human rights law and Indian constitutional law for those children who have entered into child marriage and for the ensuing reproductive and sexual rights violations that would often occur from the practice. Even after this remedy is available, many married girls are often unable to avail these remedies due to the lack of bodily, financial, and social autonomy as well as a lack of institutional support in providing facilities for rehabilitation of married girls. Many girls who are forced into child marriage if they get their marriage declared void, start to look for a fresh life for which they need support. They look for legal aid through which they can get maintenance and that can be used to make their life better but it is also not easy for the young girls to achieve this service. Also, maintenance is available only in the cases of voidable marriages, and not in the case of marriages that are void ab initio.
It is important that every person aggrieved from child marriage can avail of legal remedies because it’s the way for their better future. Therefore, it is important that legal remedies should be provided that can be availed by everyone who was forced to become a victim of child marriage.
Clearer provisions in the legislation
It is extremely necessary to have clearer laws for the concept of child marriages, as this would be the first step towards changing the outlook of society. Having stringent laws, and declaring child marriages void ab initio will stop many from indulging in the practice when they understand the gravity of the situation. Ultimately, people will accept that the concept of child marriages is a grave and harsh act.
Legitimacy of children
The legitimacy of the children born out of child marriages has to be tackled as well so that it does not stand as an obstacle in the way to the invalidity of child marriage. For the same, the Special Marriage Act, 1954 can be referred to, as the marriages that have been performed under this Act are registered and a certificate is provided. The off-springs born out of the wedlock are also entered, and hence they attain legitimacy.
However, the most important strategy for this is creating awareness amongst the society. The concept of child marriages is societal, and a change in society is a must for stopping it. Many social evils existed in the past as well and were shunned by the change in society. A close example is that of sati. It has been many years and the problem of child marriages still poses a challenge to society at large, and to eradicate that, the outlook needs to be changed. Many schemes have been launched by the government to stop child marriages and to encourage families to educate the girls. These initiatives are introduced to motivate girls to study and also spread awareness about the necessity of education.
The concept of child marriage is a grave violation of various rights of the children involved in it. It has a detrimental effect on minors in various ways, as they suffer physically, mentally as well as emotionally. It also hampers their education. For some girls, it gives rise to various diseases due to premature pregnancies and also increases fetal as well as maternal mortality rates. Most importantly, it has a psychological impact on the minors who have to perform the obligations attached to the institution of marriage at a young age. The complexity of the situation increases due to the fact that the laws do not have a concrete stance for the same. While some provisions provide for a minimum age to get married and prescribe punishments for not following the criteria, there are other laws that give subsequent provisions, like a ground for divorce, indicating that the marriage between the partners is valid in nature.
Hence the judicial approach has not been precise in this status quo and has differentiated at different times. Although the country has been developing, there are certain states and areas where girls are married off at a very young age, before attaining the age of 18. The 59th Law Commission Report had stated the same, that the concept of child marriages hampers the growth of minors in various ways, and hence needs to be prohibited. However, in 1974, this was quite difficult to establish, considering the society. Even in contemporary times, social evil has not been completely eradicated and stands as a challenge. It continues to hamper the lives of many. Hence it is necessary that stringent laws are made, in order to stop this evil that continues to exist in society. This would not only help in better interpretation of the legislation but will also help the Judiciary to have a clearer approach towards the stance on the validity of child marriages.
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