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This article is written by Varchaswa Dubey from JECRC University, Jaipur. This article is an exhaustive work regarding child marriages in India, with special emphasis on criticism of the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021.

Introduction 

Child marriage refers to the marriage of a boy and a girl, who has not completed the age of 21 years, and 18 years respectively. This is not only an offence but also a human rights violation according to UNICEF, under the pretext of protecting the girl, honour to the family, social norms, customary or religious laws that pardon the practice. 

As per the Prohibition of Child Marriage Act, 2006 (PCMA), the marriage of a girl aged below 18 years and that of a boy aged below 21 years are considered as a cognizable offence under Section 9, Section 10, and Section 11 of the PCMA. 

In child marriages, the girl is usually very young but is however married after she hits puberty, and sometimes even before the beginning of puberty, and here the community plays a vital role which believes that women are not capable of education or work. 

To curb the menace of child marriage in Rajasthan and to provide security to a girl in marriage, the Rajasthan Compulsory Registration of Marriages Act, 2009 was enacted which makes it compulsory to register every marriage solemnized between Indian citizens in the state of Rajasthan under Section 3, however, Section 11 states that no marriage shall be invalid merely because such marriage has not been registered under the said Act.  

The reason why marriage shall be registered is that it becomes evidence of the solemnization of marriage, and provides social security, and confidence to the married women, and it is also very important in cases where the party takes visas, and in cases of life insurance, and to prevent the frauds in marriages. 

Recently the State Legislative Assembly of Rajasthan has passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 which shall further make amendments to the Rajasthan Compulsory Registration of Marriages Act, 2009 due to which the opposition, protested, and questioned the need for the registration of child marriages and demanded the withdrawal of the Bill, thus walked out of the house. 

The traditions and customs of Rajasthan allow the marriage of children, i.e. girls below the age of 18 years, and boys below the age of 21 years. According to the Annual Health Survey of 2012-13, around 51.2% of the women in Rajasthan aged between 20-25 were married off before the age of 18 years.

Historical background of child marriages in India

In ancient India from around 200 BC to 700 AD, young girls and boys believed in liberal concepts like love, and therefore, they were allowed to choose a partner and thereafter enter into a relationship. The ancient concept was however abandoned by developing states and the government enacted various laws to modify the traditional Indian society. 

Eventually, women lost their rights and had to abide by the rules of society, and they were considered subjects of family discipline and honour. Since young girls were considered irresponsible and irrational, their parents used to fix their marriage before they would fall into a “scandal”. 

It was believed by the people during the ancient times that if two people know each other since childhood, it will promote affection, and understanding amongst the parties to a marriage, and therefore, the parents used to fix the marriage of their child at a very early age, however, in some cases, the daughter used to stay with her parents until she attained puberty. 

Numerous reasons have contributed to promoting child marriage at various points of time, and almost all of them were a cause of poverty, absence of education, relations that promoted child marriage, customs, and traditions.

Apart from the political and financial reasons, another reason why girls were married at an early age is associated with foreign invasions, and raids by Muslim invaders, where unmarried girls were raped and carried away. This has forced society to protect their daughters by marrying them early. 

Validity of child marriages in India

Landmark judgments on registration of marriages in India

The case of Seema v. Ashwini Kumar and Ors (2006) is the most important case when it comes to judicial interpretation of registration of marriages in India. In this case, the Supreme Court of India gave directions to the states to present to the Apex court the procedure for registration of marriages in their respective states. The states may also amend or enact the existing laws to abide by the direction. 

The marriage registrar must be authorized to register the marriages, and age, marital status, must also be given by the parties. Further, the procedure for wrong information or failure in registering the marriage, shall also be stipulated by the states. 

Whenever the Central Government enacts any law regarding the registration of marriages in India, the said law must also be provided to the Apex Court for judicial interpretation. The Apex Court also ruled that all the directions given by the court must be executed with immediate effect.  

In the case of Court on its motion (Lajja Devi) v. State (NCT of Delhi) (2012), the Supreme Court of India observed that the Prohibition of Child Marriage Act, 2006, does not declare child marriages void, but only voidable, which creates irregular circumstances where the child marriage is treated as a criminal offence, and also such marriage is also not declared void. 

The legislation must take appropriate steps in amending the Prohibition of Child Marriage Act, 2006, and various other associated laws. 

In the case of Independent Thought v. Union of India and Anr (2013), the primary question before the Supreme Court of India was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape or not, and the Apex Court while considering the exception under Section 375 of Indian Penal Code, 1860, the Apex Court held the answer to be in negative to the question raised. The Apex Court found it strange that child marriages in India are not void but voidable at the instance of the girl who was married before 18 years, however sexual intercourse with a child in child marriage is not rape, despite the same being a criminal offence under Protection of Children from Sexual Offences Act, 2012.

In the case of Kanagavalli And 4 Others vs Saroja And 3 Others (2001), the Madras High Court has expressed its concern over India not having any mechanism for compulsory registration of births and marriages. The Court also observed that poor laws reflect the inability of laws to protect women and girls from sexual assault, human trafficking, child labour, and early marriages. 

The Hindu Marriage Act, 1955

Under the Hindu Marriage Act, 1955, a marriage can only be registered if it has fulfilled the conditions mentioned in Section 5 of the said Act. According to Section 5(iii) of the Act, a marriage is only valid if the bridegroom has completed the age of twenty-one years and the bride has completed the age of eighteen years at the time of the marriage. 

If either party to a marriage has not attained the age of majority, then such marriage is violable at the instance of the party who did not attain the required age under the said Section. 

The Special Marriage Act, 1954

The Special Marriage Act was enacted to facilitate the special form of marriages, their registration, and for divorce. Under Section 4(c) of the said Act also, the minimum age required to solemnize marriage is that the male has completed the age of twenty-one years and the female has completed the age of eighteen years. 

Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021

The Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 was recently passed by the Rajasthan Legislative Assembly which shall allow the registration of child marriages i.e. girls below the age of 18 years, and boys below the age of 21 years. Following the passing of Bill’s voice vote to amend the 2009 Act, the opposition has raised serious validity concerns of the 2021 Bill.

The 2021 Bill aims at amending the provisions of Rajasthan Compulsory Registration of Marriages Act, 2009, which was enacted by the State of Rajasthan to have a system of mandatory registration of marriages which take place in the state of Rajasthan of Indian citizens, and all the matters associated with such marriage. 

However, the National Commission for Protection of Child Rights has said that it will examine the proposed amendments to the 2021 legislation to protect the interests of children after the acts of opposition in the State assembly after the passing of the 2021 Bill by voice vote. 

Objects and reasons for enacting the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021

The 2021 Bill aims at amending Section 2, Section 5, Section 8, and Section 15 of the Rajasthan Compulsory Registration of Marriages Act, 2009.  

Sections amended by the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021

Section 2(f) of the 2009 Act is concerned with the appointment of the district magistrate registration officer, wherein, the inclusion of the definition of additional district marriage registration officer and block marriage registration officer is proposed.

Under Section 5 of the 2009 Act, the actual appointment of an additional district marriage registration officer and block marriage registration officer is proposed, and such registration may be done either by notification in the Official Gazette, or by name or virtue of the office of the additional district marriage registration officer and block marriage registration officer. 

Section 8 of the 2009  Act has been amended in such a way that in cases where the bridegroom and bride has not attained the age of majority, the parents or guardians of the parties to a marriage must register such marriage in the office of the registrar under whose jurisdiction such marriage has taken place.  

The proposed amendment further states that if any death of either or both the parties to marriage takes place, then either the surviving party, or the parents, or the adult child, or the guardians of the concerned parties, as the case may be, can file a memorandum for registration of marriage. 

Section 15 has been amended for the existing expression “district marriage registration officer” and before the existing punctuation marks “.-”, the expression “and the other officers” shall be inserted. 

How does the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 contradict with central laws

Section 9 of the Prohibition of Child Marriage Act, 2006, clearly states that whoever contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with a fine which may extend to one lakh rupees or with both, and on the other hand, as per Section 4 of the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021, in cases where the bridegroom and bride have not attained the age of 21 years and 18 years respectively, either their parents or their guardians, shall submit a memorandum, within 30 days from the date of marriage to the office of the registrar under whose jurisdiction such union has taken place. 

Under Section 3 of the Child Marriage Act, 2006, child marriages are also voidable at the instance of the party who was a minor at the time of marriage, however, only the party who was a minor at the time of marriage can file the petition by the nullity of marriage. The Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021, on the other hand, has no provision regarding the nullity of child marriage, and instead, the said Act requires the parents to register the marriage of the child. 

Indian legislative framework on registration of marriages 

The legislation to tackle the menace of child marriage is not new to the Indian legal system  and attempts to cease child marriages date back to the colonial rule in India, where the Child Marriage Restraint Act, 1929 was passed to cease solemnization of child marriages, which was later amended in the year 1978 by Child Marriage Restraint (Amendment) Act, 1978 (Repealed) which increased the minimum age of marriage from fifteen to sixteen for females and eighteen to twenty-one for males.

The central idea of registration of marriages in India is not to challenge or interfere with the personal beliefs of any religion or caste, but only to ensure that marriages can be registered under all religions and customs, and therefore not only different states in India have their registration of marriages legislation, but also different personal laws and central legislations contain the provision of registration of marriages in India.

Central laws on registration of marriages in India

  • The Indian Christian Marriage Act, 1872: Section 27 of the said Act lays down the provision for registration of marriage, in cases of Christians, except when marriage is solemnized under Part V or Part VI of the said Act.  
  • Anand Marriage Act, 1909: The said Act is only concerned with the marriages of Sikhs, and those who follow the Sikh religion. As per Section 6 of the said, the registration of a marriage must be done.  
  • The Parsi Marriage and Divorce Act, 1936: Under Section 6 of the Act, every marriage must be certified by the priest, and such certificate must be signed by the priest, the parties to a marriage, and two witnesses. Such a certificate with a fee must then be sent to the Registrar of the place under whose jurisdiction such marriage took place. A priest guilty of not sending such a copy to the registrar is liable under Section 12 of the said Act. 
  • Special Marriage Act, 1954: As per Section 15 of the said Act, any marriage under this Act shall be registered to a Marriage Officer in the territories to which the Act extends. 
  • The Hindu Marriage Act, 1955: Section 8 of the said Act is concerned with the registration of marriages. The reason behind the registration of marriage is not to interfere with the personal matters of individuals but for facilitating the proof of Hindu marriages. 
  • The Foreign Marriage Act 1969: Under Section 17 of the said Act, after the Central Government has appointed members in a foreign embassy, the parties to the marriage, at least one of whom must be an Indian, shall register their marriage to the Marriage Officer.

Legislations of other states and Union Territories on registration of marriages

As a result of directions given by the Supreme Court of India in the Ashwini Kumar case, various states enacted legislation regarding the registration of marriage, in cases where they did not have any legislation. States which now have legislation regarding the registration of marriage are: 

Law Commission’s reports on the registration of marriages

Report No. 270

Report No.270 (2017) on Compulsory Registration of Marriages by Law Commission of India, has in-depth studied the concept of registration of marriages in India. The Law Commission has not only discussed the merits of compulsory registration of marriages in India but also emphasized the Registration of Birth and Death (Amendment) Bill, 2019. 

The Commission recommended that one provision under Delhi (Compulsory Registration of Marriage) Order, 2014, must be introduced at the national level under which the Registrar must be satisfied that the marriage registered under his/her jurisdiction is solemnized under the laws of India, and at least one party to such marriage is Indian and that the registration of such marriage is done under the relevant laws which are in force in India. 

Local-level bodies, including village panchayats and municipalities, shall promote awareness regarding the registration of marriages, and marriage certificates must be presented by anyone who writes the name of his/her spouse in any application. 

Report No. 211

The 211th report (2008) of the Law Commission of India dealt with the registration of marriages in India of different religions and observed that there is a major diversity in the laws in India regarding the registration of marriages and that only laws relating to registration of divorce in India are of Muslims and Parsis.  

The majority of the Indian states do not have any law regarding the compulsory registration of marriages in India and the states which have provisions for the registration of marriages have faulty and ineffective laws, and people usually do not register their marriages, which usually only leads to petty penalties. 

The Commission recommended the enactment of the Marriage and Divorce Registration Act, which shall apply to all citizens of India, and must deal only with the registration and divorce of all marriages, irrespective of religion, and there must be a mechanism for registration of marriages, and divorce, which shall be administered by registration offices at district, and sub-district level. However, the same has not been implemented yet.

Conclusion

Traditions, culture, customs, community, caste, religious beliefs, lack of education, economic backwardness, poverty, and high inefficiency of enforcement of laws are the main reasons why child marriages in India still prevail. With time, the urban cities have abandoned the practice of child marriages, however, a major sector in rural India still practices child marriage. 

Various laws have been enacted which are directly or indirectly concerned with child marriage, registration of child marriage, punishment for child marriage, etc. and the laws tend to be inconsistent in tackling the menace of child marriage. 

While some legislations punish the parties to child marriage, legislation like the Rajasthan Compulsory Registration of Marriages (Amendment) Act, 2021, makes it mandatory to register the child marriage, in case the parties are not major, the parents or guardians of such parties shall register such marriage. Therefore, India needs a uniform, codified legislation that shall not only aim at eliminating child marriages in India, but also compulsory registration of all marriages. 

References 


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