"EXAMINING THE LEGAL FRAMEWORK OF CHILD MARRIAGE: IDENTIFYING GAPS AND SOLUTIONS"
Author: Shad Khan
School of Law, DAVV
Introduction
India, a republic that expresses enthusiasm in possessing the world's longest constitution, yet it lacks to provide a suitable structure when it comes to prohibiting child marriages. Child marriages violates the fundamental rights of children by depriving them of their cherished childhood memories at a very young age. A certain lack of faith exists in our Constitution's ability to explicitly prohibits child marriage. India is made up primarily of villages, where the majority of the population lives. They lack knowledge, social behaviors, social norms, and security. The belief that women are less valuable than males contributed significantly to the rise in child marriages in India, which led to pervasive disparities between sexes. Illiteracy and conservative mentality are two new factors contributing to an upsurge in child marriage.
Why it's Prevailing?
Child marriage is rampant in India due to failure on the part of the government to spread awareness and education among the villagers that it can put girl in great risk such as- Health Risks, Limited Education Opportunities, Economic disadvantages, Psychological and Emotional Impact, Limited Decision-Making Power, Loss of Childhood. UNICEF conducted a survey in 2018, provided the data that girls aged under 15 years of age and 18 years of age were 7% and 27%, respectively.[i]
The perception of a girl child as a burden on her parents is a deeply ingrained social issue in backward society, due to the existence of thinking like Dowry and Marriage Expenses, Economic Dependency, Educational Disparities, Cultural Preferences for Sons and Limited Economic Opportunities. Society holds that a girl must be pure to marry and may become sexually active after reaching puberty. The tragic reality that child marriage is regarded as a tradition of honor and distinction in society as depicted on Akshaya Tritiya.
Legislation - Child Marriage Prohibition Act, 2006- Preamble of the Act provides for the prohibition of solemnization of child marriages and for matters connected therewith or incidental thereto.[ii] This act proved to be a better initiative for obscuring child marriages in India. It provide punishment as well as fine whoever practices child marriage.
Application of the Act
Extent of the said act has been defined under section 1(2) of PCMA as it will be applicable to all Indian citizens and also beyond India. It lead down the provision that a person of Indian origin if commits child marriage beyond the territories of India can be punished.
Who is Child?
According PCMA, a "Child" is someone who, in the case of a male, has not attained the age of 21, and in the case of a female, has not attained the age of 18.[iii]
What is Child Marriage?
A marriage in which anyone of the party (either husband or wife) is a child referred as a Child marriage.
Status of Child Marriages
According to the section 3 of PCMA, 2006- the contracting party who was a minor during the solemnization of marriage will make a decision to decide the validity of marriage. It should be emphasized that only if any participant in the marriage was a child at the time of the solemnization, an application declaring a child marriage voidable or void can be filed in the district court. However, a guardian, in conjunction with concerned officers, may apply for annulment on behalf of the child if the child is a minor. Although the application can be submitted at any time, it must be done before the child turns two years old after attaining majority, which means that a male must be 23 years old and a woman must be 20 years old.
Marriage shall be declared null and void in certain circumstances[iv], these include :
The minor is fraudulently removed from the custody of the legal guardian.
The minor is forcibly compiled to go anywhere. Minors are either trafficked or sold for immoral motives or destructive purposes.
Any child marriage carried out in defiance of a court decision issuing an injunction pursuant Section 13 of the PCMA, 2006.[v]
Punishment under the Law
Child marriage is illegal and is punishable by severe imprisonment which may continue for two years, a fine that could be worth one lakh rupees, or both awarded to a person whoever :
Is adult above 18 years of age marries a child.[vi]
Carries out, manages, oversees, or supports any child marriage.[vii]
Any parent or guardian, legal or otherwise, as well as any anyone who belongs to a group or association of people, who promotes a marriage, allows it to be solemnized, or recklessly fails to mitigate the ceremony from being solemnized.[viii]
Entities to which Child Marriages may be reported-
Any person to whom solemnization or commencement of child marriage came in knowledge at the first instance can report to the following:
Judicial magistrate first class(JMFC)
District magistrate
Child marriage prohibition officer
Nearby police station
Child welfare committees
Objectives of The PCM Act,2006
The said act aims to protect child marriages in India and guarantee children's fundamental rights through specific provisions providing for prison sentences and fines or both. The act provide provisions for the recruitment of an officer for the purpose of strictly restricting child marriages in each district or state, as the case may be. The PCM Act dissolves child marriages in particular circumstances and only on the complaint of the party who was a minor at the time of the marriage.
The aforementioned act being little enough in favor of girls provides for the livelihood and habitation of the female party to child marriages and also custody of the girl child. It provides all support and assistance, including medical assistance, legal assistance and advice. The Child Marriage Commissioner has the authority to bring witness of child marriage for the sake of justice and to make reasonable accommodation for the child in child welfare committees under the supervision of the First class judges where no such committee exists.
Child Marriage Prohibition Officer (CMPO)
PCMA, 2006 provides provisions deals with rules, regulation and duties of CMPO and it also empowered the state government to appoint by notification, any person from throughout the state or county as the commissioner for prohibiting child marriage in the area specified in the notification.[ix] CMPO may be assisted, appointed at the discretion of the state government by a member in good standing of the community or a Gram Village council or municipal councils official, or a public servant, a non-governmental official, or a representative of a Non-governmental organization to whom the state government belongs.[x]
Duties of CMPO -
Take disciplinary action to avoid the solemnity of child marriages.
Gather evidence to effectively prosecute people.
Advise local residents not to be swayed by the encouragement, help, support or approval of child marriage.
Provide information to the public on the harmful and counterproductive impacts of child marriage.
Sensitize the community on issue of child marriage.
Performing the other functions and duties assigned by the state government.
Legality under Personal Laws
Under the provisions of the 1955 HMA, child marriage is observed as a criminal offense punishable by imprisonment or fine, or both. Required age under the law for bride and groom is 18 and 21 years, respectively[xi] Initially the age was 15 or 18[xii], but there were subsequent increases. Punishment for the contravention of ages of parties is two years of imprisonment and one lakh rupees fine or both.[xiii]Mohammedan law states that Muslim girls under the age of 15 requires the consent of their legal guardians before they reached puberty.[xiv]Age for minor provided is 21 years of age[xv], in case of minor certain provisions are provided in the said act for the consent of guardians to upheld the validity of marriage in the eyes of law.
Judicial Interpretation
Lajja Devi V/S State[xvi]
The Hon'ble Court took suo moto cognizance on the letter of the mother of the girl child, alleging that her child was kidnapped by accused persons and that forcibly, without her consent, she was made to marry the accused. The court held that the girl child, Miss Meera, is still a minor and the marriage is voidable; she will be under the surveillance of her parents, and when she reaches the age of majority, it will be her choice whether to continue marriage or not.
Independence thought V/S Union of India[xvii]
A Writ Petition was filed on August 6, 2009, before the Hon'ble Court by a registered NGO requesting the quashing of an IPC provision as it is violating the fundamental rights of a girl child. It explains that having intercourse with a partner over the age of fifteen while she is still under the age of 18 is not considered rape, regardless of whether she knows about it or consents to it.[xviii] The court quashed Section 375, exception 2, of the IPC. It is now a heinous crime to have sexual intercourse with a wife without her consent who is between 15 to18 years of age.
T ShivaKumar V/S Inspector of police & Ors. Thiruvalluvar[xix]
In this case following two issues related to child marriages were raised:
Can it be said that a minor has reached the age of judgment and is therefore releasing her parents' legal guardianship and joining their custody?
Whether a person's marriage to an underage girl would be recognised as a legal union and result in the husband being granted custody of the girl?
The court ruled that adult men who marry an underage girl in violation of PCMA should not be the girl's natural guardians. Therefore, custody of the underage girl will be in the care of her legal guardians until she reaches majority.
Way Forward
The central and the state were directed to adopt the Karnataka model by the supreme court in the relevant case of Independent thinking v. Union of India. The Karnataka government has expanded the scope of the PCMA to include all personal laws and has added a new subclause to section 3 of the same legislation that declares all future child marriages to be null and void from the outset. Making corrections in the areas of consent, legal age, and marriage registration requirements can help reduce the number of child marriages..
Conclusion
In conclusion, the examination of the legal framework surrounding child marriage reveals a complex and deeply ingrained issue that demands our immediate attention and a multifaceted approach. While legal provisions exist in many jurisdictions to combat child marriage, there are significant gaps that hinder their effectiveness. Child marriage persists due to cultural, social, and economic factors that cannot be addressed by law alone. To combat this practice effectively, we must implement a comprehensive strategy that combines legislative reform with educational programs, community engagement, and support systems for those at risk. Child marriage is not just a legal issue; it is a human rights concern that calls for the collaboration of governments, civil society, and international organizations. By identifying these gaps and working together to implement sustainable solutions, we can protect the rights and well-being of vulnerable children and contribute to a world where child marriage becomes a relic of the past rather than a stark reality for countless young lives.
References [i]United Nations International Children's Emergency Fund. Survey Report on Child Welfare (2018) [ii]Prohibition of Child Marriage Act, 2006, Preamble [iii]Prevention of Child Marriage Act 2006 §2(a) [iv]Prevention of Child Marriage Act 2006 § 12 [v]Prevention of Child Marriage Act 2006 § 14 [vi]Prevention of Child Marriage Act 2006 § 9 [vii]Prevention of Child Marriage Act 2006 § 10 [viii]Prevention of Child Marriage Act 2006 § 11 [ix]Prevention of Child Marriage Act 2006 § 16 [x]Prevention of Child Marriage Act 2006 § 16(2) [xi]Hindu Marriage Act 1955 § 5(3) [xii]Child Marriage Restraint Act 1978. [xiii]Prevention of Child Marriage Act 2006 § 18(a) [xiv]Mohammedan law § 275 [xv]Christian Marriage Act 1872 § 3 [xvi]W.P. (Crl.) No. 338/2008 [xvii]W.P.(Civil) No. 382/ 2013 [xviii]Section 375, Exception 2, Indian Penal Code, 1860. [xix]H.C.P. No. 907 of 2011