In this article, Shivendra Pandey answers the question, Is it Legal in India to marry girl a below 18 years of age?
Indian society has been plagued by the child marriage since a very long time. It has marred the Indian society at global level. In India due to different factors child marriages have existed for such a prolonged period such as ignorance, customs and traditions, beliefs, gender differences, low level of education and considering women as a financial burden. British first passed a law in 1929 which had penal provisions against males and parents encouraging child marriage. But it proved to be ineffective as the punishment and fine were non-deterrent. Later in the year 2006 a new legislation was passed enacted in the form of Prohibition of Child Marriage Act, 2006.
What does the present law state?
The new Act (Prohibition of Child Marriage Act, 2006) envisages preventing child marriages with enhanced punishments.
As per section 3(1) of the 2006 Act:
“Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.”
Further Section (12) states the conditions under which a marriage with a minor is void:
“Marriage of a minor child to be void in certain circumstances.-
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 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.
In simple terms it can be said that a girl in India can’t marry before the age of 18, and a boy before 21 as per the present laws. In the last few years this Act has been put to task to accommodate with the changing social conditions in the Indian diaspora. There are various Personal Laws vested with the citizens of different communities.
Legality of marrying a girl below 18 under the Hindu Marriage Act
Under the present Hindu Marriage Act (HMA), only the parties to a child marriage are punishable even if they had not consented to the union. The Act lacks any provision for punishing parents or guardians or people who solemnised the child marriage. A plea for annulment of marriage by the girl would be accepted only if she was married off before attaining the age of 15 and she challenges the marriage before attaining 18 years of age. However, there is no express provision to prohibit child marriage per se(which even makes such marriage void completely).
Marriage Under The Muslim Personal Law (Legality of marrying a girl below 18 under the Muslim Personal Law)
As Muslim law is uncodified in India. Due to which, its provisions have to be interpreted by Quran by scholars. Under the present Muslim law, there is no bar to child marriage. A guardian has a right as per Quran to get their child married. The married couple has also ‘option of puberty’ referred as “khayar-ul-bulugh” where they can repudiate the marriage after attaining puberty. However, such repudiation must come before they turn 18 and only if the marriage has not been consummated. Hence the age of marriage under Muslim law is the age of puberty that is 15 years. However, a marriage before children reaching age of 7 even if contracted by a lawful guardian, would be void ab initio.
Marriage Under The Indian Christian Marriage Act (ICMA)
ICMA provides that a preliminary notice is to be issued 14 days prior to the marriage if the marriage is to be contracted between minors. After the expiration of the said period, the parties can go on with the marriage without the consent of their guardians.
Recent controversies regarding the Act
The biggest controversy is “What is the right age of consent?”. This question has puzzled the whole judicial system as well as the legislature. As there have been many instances where a minor (a girl below 18 years of age as per the law) has willingly decided to marry a major beaus (partner). There have been several cases where it was found that a minor had willingly chosen to marry and later his partner had to suffer legal consequences whereas such minor was considered innocent.
In India there are Personal laws provided to differetances has caused conflict between personal laws and the Marriage Prohibition Act (also referred as secular law) and judicial pronouncements have time and again highlighted that there is an overriding effect of secular law over the personal law. However, still there are inconsistencies in the judgments of various high courts.
The Delhi High Court in Lajja v State held that
PCMA (Prohibition of Child Marriage Act) should prevail over personal laws. The same was reiterated by The Karnataka High Court in Seema Beghum v State in 2013. However later in 2014, Gujarat High Court in Yusuf Ibrahim Mohammad Lokhat v State of Gujarat held that:
“According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents”. This clearly gives the idea that according to the learned judges, the personal laws should be taken as a primary source to decide the cases of underage marriage.”
Recently in the year 2015, the Hon’ble Madras High Court declared that PCMA is applicable to every community and is not against the Muslim law. There are no judgements by Supreme Court to settle this point. Thus, there lies a state of ambiguity and irregularity that is yet to be resolved.
Law Commission’s view on legal status of marriage before attaining majority
18th Law commission headed by Justice A.R Lakshamanan in its 205th in the year 2008 Report suggested that marriage between boys and girls between the age of 16 and 18 years should be made voidable at the option of either party by a court decree. Further the commission suggested that the age sexual consent should be increased from 15 to 16 years regardless of marriage.
An amendment bill was introduced in the Lok Sabha in the year 2016 it is yet to be passed. A copy of the amendment bill is available at: <http://164.100.47.4/billstexts/LSBillTexts/AsIntroduced/5332LS.pdf>
Possible solutions
According to UNICEF, the best way to delay marriage among children is to retain them in school longer. As per the Indian law, a child is entitled to ‘free and compulsory education’ only upto 14 years of age and all around India there have been large no of dropouts of children from economically weaker backgrounds after the age of 14. It will be a remarkable step in if ‘Right to Education’ (RTE) is extended to all children of 18 years of age. This will help in bridging the gap between legal age for marriage and also reduce financial burden of parents to facilitate children to continue their education. Such youths would be much more mature and career oriented. Child marriage is a menace to our society and just making laws is not enough effective implementation is the key for its success.
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