AUTHOR:

SHRUTI  SARKAR,
Student,
Jindal Global Law School

CO-AUTHOR:

Abstract

This paper will discuss the terrifying reality of child marriages in India. The practice of child marriage is an ignominy of the entire society as it not only violates the basic human rights of children but also serves as the cause of trauma to young girls and results in innumerable health complications. The amalgamation of historical, socio-cultural, economic and political factors has led to the aggravation of this phenomena. An attempt has been made to throw light upon the laws that have come into force in order to do away with the social evil. It also discusses how the failure in the process of implementation combined with the presence of loopholes in the law has led to the continuation of this detestable practice. Despite the legal provisions there is no true emancipation offered to the child in such situations. Therefore, it forms the need of the hour to draw our attention towards the existing legislative provisions and their implementations, in order to discover the root causes of the aggravating phenomena. This creates the need for an efficacious governmental mechanism. An attempt has been made in this paper to suggest a few possible solutions to entirely root out such heinous practises and create a society that promotes the growth of an environment which is in no way hostile to any gender.

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Even after 73 years of independence and over 90 years of legislations in the domain of child marriage, it is still a horrific reality in a country like India, that takes pride in its progressiveness. Child marriage has been defined as the marital union of a boy below the age of 21 years and a girl below the age of 18 years[1]. India is the home to about 223 million child brides.[2] This presents evidence of the glaring condition of children, as it not only transgresses their bodily integrity, their sexuality, but also severely circumscribes their development. Though it harms the growth of both the sexes, the effect on girls is far worse. In our country, the customs have always had an overriding effect on the law, and therefore the socio-cultural backing of such an abhorrent practice, makes it permissible. Child marriages serve as the cause of trauma to young girls and result in innumerable health complications. It is in complete disregard of their socio-economic circumstances and does not acknowledge their need to consent. The inadequacies of the legal provisions combined with the several contradictions of the Personal laws, have presented multifarious challenges towards the eradication of child marriages. Child marriages are an ignominy of the Indian society, as it not only leads to undue physical and mental burden on children but is also violative of their basic human rights.

Child marriage is an acceptable practice under several Personal laws in our country. A closer look at the Hindu Marriage Act, 1956, brings to our attention that there is no explicit barrier to child marriages. However, section 13(2)(iv) of the same Act highlights that the marriage is voidable at the option of the girl who has not turned 18 years of age, and was married before the age of 15 years[3]. It also fails to punish the guardians or people who solemnised the marriage as, only the parties to the child marriage are punishable[4], notwithstanding their consent. It is also crucial to understand its associated implications. Child marriage would also render the girl vulnerable, if she decides to leave her matrimonial home after attaining majority, as her husband would be in a position to enforce the restitution of conjugal rights against her and her minority at the time of her marriage would not serve as a valid reason for her conduct. Further, under the Muslim Personal law, child marriage is an acceptable practice and the age is set at 15 years for girls. Section 2(vii) of Dissolution of Muslim Marriage Act,1939 allows the girls to opt out of the marriages officiated by their guardians, before becoming 18 years of age and in the absence of consummation of the marriage[5]. While the Indian Christian Marriage Act, allows the marriage between minors, it creates the requirement of consent from the guardians or an issuance of a preliminary notice 14 days prior to the marriage, and after the expiration of such period, in the absence of prohibition from the guardians, the marriage can be commenced[6]. Under the Parsi Marriage and Divorce Act, 1936, the marriage between a boy below the age of 21 years and a girl below the age of 18 years is considered to be invalid[7]. Subsequently, marriage under Jewish personal law is invalid before the age of 12 years but considered to be valid after the same. Therefore, it is evident that the interplay of the personal laws is a significant factor in sustaining the practice of child marriage in our country.

The government did make certain efforts at legislating provisions to curtail child marriages. The Prohibition of Child Marriage Act (PCMA), 2006 presents an example of such an enactment. This was created in response to the inefficacy of the Child Marriage Restraint Act, 1929 which failed to sufficiently punish the perpetrators of such heinous acts. The PCMA enhanced all the punishments laid down under the Act of 1929. Punishments are also prescribed for anyone who performs, conducts, directs or abets any child marriage[8]. Child marriage can also be declared to be null and void under certain circumstances involving kidnapping, abduction or trafficking of the minor[9]. To exercise the option of voidability of child marriage under Section 3(3) of the PCMA, the minor is required to initiate the legal process, within 2 years of attaining majority[10]. This highlights the unjustified burden that is placed on children to effectuate their withdrawal from the marital union. The Act’s requirement of the parties to the marriage to initiate the filing for annulment, can be undertaken by the guardians, in case of minority of the party[11]. However, the minor can also seek the help of the ‘next friend’ who has to be an adult[12], this points towards the inherent loophole in the legal recourse, as the probability of such an adult friend is highly unlikely. These clauses essentially disregard the socio-cultural and economic liability on young girls, who are in no position to arrange the requisite resources to seek relief. The lack of favourable societal circumstances and the absence of authority to take such decisions combined with the insufficiency of the concerned governmental functionaries, leaves the girl in a susceptible position. The Act also provides different definitions of a child, the age is set at 18 years for girls, while it is 21 years for boys, this in turn is in complete contradiction of the provisions of the Juvenile Justice Act (Care and Protection Act), 2000 (JJA), the Indian Majority Act, 1875 which adopt a gender neutral tone to define “child” as any person below 18 years[13] and the Indian Contract Act, 1873, which highlights the incompetency of the parties below the age of 18 years, to enter into a contract[14]. Therefore, the PCMA in a way is discriminatory to the girls as it promotes stereotypes of higher intellectual maturity of girls without any empirical evidence to back the same. This again places the girl child in a disadvantageous position, in a society which lives by its patriarchal norms.

There have been several debates around the predominance of  PCMA over the Personal laws and over the years, different High Courts have taken different stances. In 2012, the Delhi High court in the case of Lajja Ram v State[15] held the prevalence of the PCMA over the Personal codes. However, it was in 2014, in the judgement pronounced by Gujarat High court, in the case of Yusuf Ibrahim Mohammad Lokhat v State of Gujarat[16] where it was observed that, the personal laws should be taken as the primary source to decide the cases of underage marriage. Further Justice Deepak Gupta, while presenting his opinion in the Supreme Court’s judgement in Independent Thought v. Union of India & Anr[17], highlighted the primacy of secular provisions such as the PCMA over the Personal laws. It is important to notice the amount of uncertainty and ambiguity associated with the rulings. Therefore, it becomes crucial that the Supreme court makes such a decision binding on all courts in order to prevent the anomaly. There should be a clarification issued regarding the unconstitutionality of such provisions which are violative of the rights of women and young girls and no personal law should be exonerated from its responsibility to offer equal treatment to all the genders.

Child marriage also has severe health implications on the young girls. The lack of requisite knowledge about the sexual well-being and the physical immaturity of the sexual organs, leads to painful sexual intercourse and increases the risks of sexually transmitted diseases[18].  Child marriages often result in early and unwanted pregnancies, complications from pregnancy and childbirth are the main cause of death among adolescent girls aged 15-19 in developing countries[19]. In a patriarchal country like India, the desire for a male heir, forces the women and young girls to conceive multiple times, which not only adds to their plight but also deteriorates their health. Young girls often lack the authority to make decisions regarding the required nutrients, healthcare and in matters of household management, which often overshadows their autonomy. It also makes them prone to forms of domestic and sexual violence. This violates their right to equality and right to life and dignity as enshrined under Articles 14 and 21 of the Indian Constitution. In addition, the current figures violate the right to health, as recognized by WHO – that pregnancy prior to the age of 20 years is harmful to the health of a young woman[20]. They are also expected to take up household responsibilities over education, this is in contravention of their right to education, which in turn limits their opportunities and increases their dependency due to social and financial constraints.

The structural inefficiency of both, the Personal as well as the Special provisions have allowed the continuation of such an archaic practice. The need of the hour therefore calls for the abrogation of the provisions that facilitate child marriages. This situation can be tackled by setting a bar of 18 years for both the genders, to avoid gendered stereotypes. Punishment for forced marriages should be made harsher, the need for consent should not only be emphasised upon but should also be made more pronounced and the permissibility of the guardians to wed off their children should be done away with. Parents, and community members especially from economically backward strata should be made aware and incentivised to prevent child marriages. And women should be empowered, by equipping them with skills, education and wider opportunities. Provisions should also be made to penalise the Child Marriage Prohibition Officers appointed under the PCMA for their dereliction of duty and lack of accountability. It is also very pivotal to make the entire process less cumbersome and more accessible. The need for filing a complaint by the guardian or next friend should be substituted by any person who notices the practice of such an offence. And lastly, child marriage should be declared as void for once and for all as women no longer deserve to be treated as the second-class citizens in a nation that is equally theirs.

The standardized application and careful utilization of the precisely collected data from the secondary sources used in the research work include scholarly journal articles, academic reports etc. These have brought forward the deplorable condition of young girls and women who have been forced into child marriages. Traditions and cultures cannot be used to justify these abominable practices. The freedom of religion is in no way an excuse to systematically subdue the basic human rights of a particular section of the population. While several Acts, ranging from the Juvenile Justice Act, the Indian Majority Act and the Indian Contract Act set the age of majority for all the genders at 18 years, the Personal laws expect the children to make decisions about their marital unions before the age of majority, this indeed is preposterous and it throws light on the disproportionate burden placed on children, which forms the reason for their trauma. A huge step towards eradicating this appalling practice is to first identify and then eliminate these conventions that form the cornerstone of child marriages which serve as the opprobrium of the Indian society. The ambiguities surrounding the legal framework have to be resolved and the severe implications of this practice have to be highlighted. It is time to stop the ticking clock of child marriages and reset it to build a society that empowers women and encourages supportive laws towards the cause. Annihilation of all forms of gender equality still seems to be a distant dream but abolition of child marriages can prove to be a revolutionary step towards achieving this end.

[1] The Prohibition of Child Marriage Act, 2006 § 2(a).

[2] Ending Child Marriage A Profile of Progress In India, UNICEF https://www.unicef.org/india/media/1176/file/Ending-Child-Marriage.pdf.

[3] The Hindu Marriage Act, 1956 § 13(2)(iv).

[4] The Hindu Marriage Act, 1956 §  18(a).

[5] The Dissolution of Muslim Marriage Act,1939 § 2(vii).

[6] The Indian Christian Marriage Act, 1872.

[7] The Parsi Marriage and Divorce Act, 1936 §  3(1)(c).

[8] The Prohibition of Child Marriage Act, 2006 §  10.

[9] The Prohibition of Child Marriage Act, 2006 § 12.

[10] The Prohibition of Child Marriage Act, 2006 § 3(3).

[11] The Prohibition of Child Marriage Act, 2006 §  3(2).

[12] The Prohibition of Child Marriage Act, 2006 § 3(2).

[13] Ending Impunity For Child Marriage In India: NORMATIVE AND IMPLEMENTATION GAPS, CRR(2018) https://reproductiverights.org/sites/default/files/documents/Ending-Impunity-for-Child-Marriage-India-WebUpdate-0218.pdf.

[14]  The Indian Contract Act, 1872 § 11.

[15] Lajja Ram v State [1955] CriLJ 1547.

[16] Yusuf Ibrahim Mohammad Lokhat v State of Gujarat [2014] 1358 CR 213.

[17] Independent Thought v. Union of India & Anr [2013] WP (C) 382.

[18] Child Marriage, UNFPA, (2020) https://www.unfpa.org/child-marriage.

[19] Q & A: Child Marriage And Violations Of Girls’ Rights, HUMAN RIGHTS WATCH (2013) https://www.hrw.org/news/2013/06/14/q-child-marriage-and-violations-girls-rights.

[20] Christopher Finnigan, A Legal Failing: Why Child Marriage Persists In India LSE BLOG (2019) https://blogs.lse.ac.uk/southasia/2019/01/10/a-legal-failing-why-child-marriage-persists-in-india/.

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