January 23, 2022

Child Marriage and the Law

Introduction

In this paper I will analyse the history of child marriage prevention laws both in India as well as on an international level. I will bring to light their objectives as well as give a critical analysis of their subject matter.

 In the International realm, I will give emphasis to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

On the national level, I will critically evaluate the Child Marriage Restraint Act of 1929 as well as the Prevention of Child Marriage Act, 2006. Along with this I will also discuss the International commitments of India towards the eradication of child marriage.

I will also highlight the problem of personal laws acting as hindrance to the prevention of child marriage and some major case laws which have taken place relating to child marriage. Lastly, I will conclude the paper by citing recommendations, along with emphasis on the suggestions given by National Commission for Women

Child Marriage

 The tradition of marrying daughters early is widespread not only in India but also in many other parts of Asia, Africa, and Latin America. As marriage fetches social status and, conversely, remain ing unmarried is considered an oddity, rural parents prefer to marry their daughters early to avoid the complications of marriage later. There is, therefore, silent complicity to child marriage in a country like India and many rural and backward communities treat the age-old practice as normal. Consequently, 40 per cent of child marriages in the world still take place in India[1], though only 514 cases of such marriage were registered in the country during 2004-08[2].

The prevalence of child marriages among the Hindus is perhaps due to the fact that ancient Hindu scriptures sanction them, suggesting that a girl should be married before she attains puberty and certainly immediately after her first menstruation.[3]

However, it is necessary to emphasize that marriage, especially among Hindus, often means no more than irrevocable betrothal. In the case of child marriages, the parties do not begin to cohabit immediately after the marriage ceremony. Conjugal relations are generally preceded by a second ceremony, called gauna or vida. Between the time of her marriage and the gauna ceremony (which is roughly the period between puberty and the institutionalized recognition of her potential motherhood), the bride lives with her parents. If marriages are held late when both the parties are grown up, as is the case with educated families, the gauna ceremony is performed also at the time of the main marriage ceremony.[4]

Several factors, both economic and cultural, contribute to the high incidence of child marriage around the world. These factors include poverty, a desire to “protect” girls’ virginity, and entrenched gender discrimination. Because girls are considered an economic burden, they are devalued by domestic violence and a lack of education, health care and autonomy. The United Nations Children’s Fund’s (UNICEF) Innocenti Research Center notes that “poverty is one of the major factors underpinning early marriage,” as an impoverished family may regard a daughter as an economic burden. Families often receive a dowry payment or some other form of comnensation as the bride price for their daughter.

International Law dealing with Child Marriage

There is no shortage of international human rights instruments that aim to address some component of gender inequality and the problem of child marriages and alike. The most important among them includes the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC) and even the Universal Declaration of Human Rights. Many of these instruments contain provisions relating to marriage. This comprehensive web of overlapping human rights laws alludes to provide a safety blanket for human rights abuses that are born from child marriage. Unfortunately, this patchwork of treaties and conventions leaves gaping holes in implementation and enforcement, which further limits their intended impact.

CEDAW contains several provisions that address and affirm women’s equal status regarding marriage. CEDAW’s Article 16 provides that parties to the convention must take appropriate measures “to eliminate discrimination against women in all matters relating to marriage and family relations.” It calls for the establishment of a minimum age for marriage and a compulsory marriage registration system. In addition, Article 5(a) requires parties to take all appropriate measures “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles of men and women.”

CEDAW is plagued by a host of reservations that allow countries to maintain gender-discriminatory laws, despite their status as states parties to the Convention. CEDAW has been criticized as “one of the weakest links in the chain of international human rights law since it has weak implementing mechanisms and is encumbered with reservations.”[5]

The CRC similarly fails to provide a clear roadmap for protecting women and girls who are vulnerable to exploitation, including child marriage. In contrast to CEDAW, the CRC has a relatively robust enforcement mechanism for treaty implementation, but its vague wording allows countries to perpetuate gender discriminatory nationality laws. In particular, the CRC emphasizes the need to strengthen the family unit, which at times conflicts with the rights of girls to make their own autonomous decisions about marriage.[6]

The CRC only speaks of the “best interests of the child” within the context of cultural identity and community practices. Thus, it may allow states to justify cultural abuses against the girl-child “on the basis of social identity” as long as such abuses “occur within the confines of the family.”[7]

Even though countries sign on to these human rights treaties, presumably in good faith, countries are permitted to make broad and categorical reservations to critical treaty provisions. This effectively permits countries to gain a reprieve from implementing those provisions in the name of sovereignty and national interest. The reservations thus undermine the effectiveness and overall purpose of the treaties. Similarly, the treaties are written so broadly that they offer states nearly boundless discretion in determining which laws to amend to be brought into compliance. In doing so, countries receive all of the benefits without any of the drawbacks, they can gain international credibility by being a party to a human rights treaty, yet they can also indemnify themselves from ever having to change their laws or behavior toward those who live at the margins of society.

Child Marriage Laws in India

The Government of India has introduced several policy initiatives to address the problem of early marriages. The National Population Policy 2000 promotes delayed marriage for girls and the National Policy for the Empowerment of Women, 2001, recognises the critical need of men and women to suitably address the issues of early marriage and aims to eliminate child marriage by 2010. The National Youth Policy 2003 calls for sensitisation among adolescents with regard to the correct age of marriage.

The National Family Health Survey (NFHS-2) of 1998-1999 showed that, despite the steady rise in the age of first marriage, almost universally marriage is early in India and that 30% of women 15-19 years of age are married. Another 4% are married but “gauna” has not been performed.[8] Among women aged 20-24 years, almost 25% were married before age 15 and half were married before age 18. Child marriages are particularly prevalent in some states. For example, each year on a particular festival day in Rajasthan, mass child marriages take place.[9] The legally permissible age of marriage in India is 18 years for girls and 21 years for boys as per the Child Marriage Restraint Act of 1929. Though the Act was ostensibly passed to prevent child marriage, it does not invalidate the marriage of a child below the minimum age. Rather, as the Act has been interpreted by the courts, it aims at the restraint of such marriages, but the validity of such a marriage once it is performed is beyond the scope of the Act.[10]

The Act seeks to restrain child marriages by punishing the adults-parents, guardians, priests, or an adult bride- groom-responsible for the marriage. However, only extremely minor punishments are prescribed by the Act, indicating that the offense is taken lightly by the legislature. The Act provides for punishment of up to 15 days in jail or a fine of up to 1000 rupees if the bridegroom is under 21 years of age. If the bridegroom is over 21 years of age, the Act provides for up to three months’ imprisonment and a fine. The parents of the child and the person performing, conducting, or directing the child marriage may also be punished with up to three months’ imprisonment and a fine. However, while expressly stipulating that no woman can be punished with imprisonment.

The National Human Rights Commission has recommended that the offenses under the Act be made non-bailable and that authorities at the village level should be given the power to prevent child marriage.[11] The Act clearly also discriminates between boys and girls in making the marriage age higher for boys. Girl children may be sexually abused under the guise of marriage, yet the Act provides little redress.

The shortcomings of this act led to the formulation of The Child Marriage Act, 2006, which replaced the CMRA. In 2004, in order to ensure stringent laws dealing with the issue of child marriage, the Prevention of Child Marriage Bill was introduced in the Rajya Sabha and was referred to the Parliamentary Standing Committee to examine the provisions of the bill. The report of the Parliamentary Standing Committee (2005) took cognisance of the annual reports of the National Commission for Women (NCW), the National Human Rights Commission (NHRC) and the violent attack on an Integrated Child Development Services (ICDS) supervisor from Madhya Pradesh. The NCW and NHRC in their draft  bill recommended:

  • the punishment provided under the Act should be made more stringent;
  • marriages performed in contravention of the act should be made void void; and
  • the offences under the Act should be made cognisable.

Although this bill was not passed at that time, it did become the basis for the Prohibition of Child Marriage Act, which was passed much later in 2006.[12]

 The purpose of the Prevention of Child Marriage Act, 2006, is not simply to restrain but prohibit child marriages. It lays down the minimum age for marriage as 21 for males and 18 for females. The aberration of two different ages at marriage for women and men was raised before the Parliamentary Standing Committee, while some members opposed this; the government commented that “for the purpose of marriage, two different ages have been accepted socially as well as culturally in the country”.

Section 3 of the Child Marriage Act, 2006, provides that a child marriage will be rendered voidable only if the children or their guardians file legal proceedings. It is unlikely that any such case will be filed given the societal norms that surround it. Under Section 3(3), a petition for annulment of the marriage by the contracting party who was a child at the time of marriage may be filed any time, before (the child filing the petition completes) two years of attaining majority, which allows a male of 23 years and female of 20 years to file a petition.

Under Sections 10 and 11(1), whoever performs, conducts, directs or abets any child marriage shall be punishable under the Act. Therefore, any family member, institution or association of persons can be held liable for punishment under the Act.

The Act, under Section 12, lays down that child marriages will be void only in three cases –

  • First, when the girl is “enticed out of the keeping of the lawful guardian”;
  • Second, in cases of compulsion or deceitful means; and,
  • Third, for the purpose of trafficking.

However it os highly important to note here that the NCRB 2012 records on child marriage reveal  very low conviction rates

India’s International Commitments to End Child Marriages

  • India has committed to eliminate child, early and forced marriage by 2030 in line with target 5.3 of the Sustainable Development Goals. The government did not provide an update on progress towards this target during its Voluntary National Review at the 2017 High Level Political Forum.
  • The government has acceded to the Convention on the Rights of the Child in 1992, which sets a minimum age of marriage of 18, and ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993, which obligates states to ensure free and full consent to marriage.
  • India is a focus country of the UNICEF-UNFPA Global Programme to Accelerate Action to End Child Marriage, a multi-donor, multi-stakeholder programme working across 12 countries over four years.
  • India is also a member of the South Asian Initiative to End Violence Against Children (SAIEVAC), which adopted a regional action plan to end child marriage from 2015 – 2018.
  • Representatives of the South Asia Association for Regional Cooperation (SAARC), including India, asserted the Kathmandu Call to Action to End Child Marriage in Asia in 2014. As part of its commitment, India will ensure access to legal remedies for child brides and establish a uniform minimum legal age of marriage of 18.
  • During its 2017 Universal Periodic Review, India agreed to consider recommendations to improve enforcement of legal provisions against child marriage.

Paradox Of Personal Laws and Child Marriage

For a critical understanding of child marriages in India, it is essential for us to take into account the various personal laws. Therefore, a reading of the Child Marriage Act, 2006, needs to take into account the implications of the various personal laws and the secular law on marriages. While the Hindu Marriage Act does stipulate conditions for a valid marriage under Section 3(iii) of the Hindu Marriage Act, 1955[13] (hereafter referred to as “HMA”), the male should have completed 21 years of age and the female 18 years to fulfil the conditions of a Hindu marriage. However, marriage in contravention of the above-mentioned condition is not void and Section 18(a) of the HMA provided simple imprisonment up to 15 days or with fine which may extend to Rs 1,000 or with both.

The provisions of the Child Marriage Act, 2006, are further diluted due to personal laws on marriage. For instance, the Muslim law on marriages lays down the age of puberty as the age of marriage. However, as per Section 2 (vii) of the Dissolution of Muslim Marriages Act, a Muslim woman can dissolve her marriage if it was performed before she attained 15 years of age, but she has to repudiate her marriage before attaining the age of 18 years, provided the marriage has not been consummated. In both Muslim and Christian marriage laws, consent of the guardian is essential for a minor’s marriage.

Section 3 of the Christian Marriage Act, 1872, defines a minor as a person who has not completed 21 years. As per Section 19 of the Act, consent of father, or guardian, or mother is mandatory for marriage of minors, therefore the Act does not invalidate minor marriages.

On the other hand, the Special Marriages Act, 1954, is the only Act where child marriages are void; Section 4(c) states that the male must have completed 21 years of age and the female 18 years for a valid marriage.

Under the Parsi Marriage and Divorce Act, the marriage of a girl under the age of 18 is considered invalid.[14] However, in the provision on grounds under which a marriage can be declared void, age is not included.[15] The Parsi Marriage and Divorce Act is silent on the issue of consent. It also fails to discuss penalties for the violation of the minimum age of marriage.

Under Jewish personal laws, which are uncodified, the minimum age of marriage for girls is puberty, which is presumed to occur at 12 years.[16] Marriage before puberty is strictly prohibited, but any marriage after that age is recognized as legal and valid.

Important Case Laws Relating to Child Marriage

Amrinder Kaur and Another vs State of Punjab and Haryana and Others[17] was a case of a runaway couple seeking protec- tion under Article 21 of the Constitution as they were being threatened by the girl’s family. The minor girl of 16 years got married as per Sikh rites to a Jat man of 21 years; her counsel argued that since she has attained the age of discretion, her marriage is not void. The couple married without approval from the girl’s family and the girl’s father lodged a complaint that a man in his neighbourhood, along with his parents, had kidnapped his daughter with the intention to marry her.

The Court, referring to prior judgments20 on the issue, held that none of the referred judgments took into consideration the provisions of the Child Marriage Act, 2006, which came into force in 2007. Relying on Sections 2(a), (b) and 12(a) of the Child Marriage Act, 2006, the Court held that the marriage is child marriage, as the petitioner is 16 years and two months old, who has been enticed out of the keeping of the lawful guardian and cannot contract the marriage; therefore, her marriage shall be null and void. The Court held that in the garb of providing police protection it cannot declare the void marriage as valid. The Court stated that “the life and liberty of the petitioners is only endangered and threatened by the girl’s family so long [as] their marriage legally subsists, but once their marriage is declared to be void, there is no threat to their life and liberty.

Unlike cases under the CMRA, the Court in this case took note of the Child Marriage Act, 2006, and held that underage marriages between 16 and 18 years, even with the consent of the girl, are void and cannot be provided protection[18]

Another important case law is in relation to Muslim personal laws that hold the “age of puberty” as the age of marriage. In the Mrs Tahra Begum vs State of Delhi and. Ors[19] the Delhi High Court held that a Muslim minor girl could many in accordance with the principle of the “Option of Puberty” or khiyar-ul-bulugh. However, in accordance with this very principle, the minor girl may also choose to repudiate the marriage upon attaining majority. In this case, the minor girl clearly expressed her choice to reside with her husband and the court upheld her agency and choice, over age and minority status. This case has revived the debate about the interplay between the Child Marriage Act, 2006, and the various personal laws (Faizur 2012)

Conclusion

Child rape has been defined in Indian law as sexual intercourse with a girl under 16 years of age. However, engaging in sexual intercourse with a wife against her will does not amount to rape if she is over 15 years of age. Rape of a child wife between 12 and 15 years of age is punishable with imprisonment, a fine, or both. Imprisonment is limited to a maximum of two years, even though the minimum punishment for rape of a child under the age of 12 years is 10 years’ imprisonment. Thus, the law of rape largely legitimizes child marriages. Moreover, girls forced into child marriages are fearful of approaching the authorities, lest their parents are imprisoned and fined.

Inconsistency in the different personal laws as well as the laws laid down in the Indian Penal code regarding the legally permissible age at marriage, the option of puberty in personal laws, and judicial computation of the age of discretion inhibits implementation of the not only the existing legislations present, but any further piece of law that could be brought to aid in the plight of victims of child marriages.

Preventive and rehabilitative measures must also be reevaluated and strengthened. The entire body of procedural criminal law must be reviewed to make it more sensitive to women and children.

In 2014, as part of its annual report, the NCW submitted recommendations on the implementation of child marriage laws in India. The recommendations were made after the commission engaged in national and regional consultations and held a meeting with government ministries and other stakeholders. The recommendations were then forwarded to the Ministry of Women and Child Development. The recommendations included:

  • declaring marriages in which a party is under eighteen void;
  • identifying and amending laws that recognize child marriages as valid;
  • incorporating the provisions of the Prohibition of Child Marriage Act in the Hindu Marriage Act 2005, Special Marriage Act 1954 and Christian Marriage Act 1872;
  • making marriage registration compulsory; and
  • appointing Child Marriage Prohibition Officers to enforce the existing laws[20]

            The “Five-E” approach has also been advocated that includes programs to:

  • empower girls with information about the harmful effects of child marriage and develop their confidence.
  • educate parents and community leaders about the harmful effects of child marriage, resulting in a pledge not to marry any girls before the age of eighteen
  • enhance girls’ access to high-quality education to help them develop the knowledge and skills to advocate for themselves
  • provide economic incentives to parents to increase the value of the girl in the eyes of her family
  • encourage legal reforms, such as new laws prohibiting child marriage, or implementation and enforcement of existing laws.[21]

Lastly, Non-governmental organisations (NGOs) have played a proactive role in working towards the prevention of child marriages through counselling and awareness generation. One such successful instance is the Child Line 1098 service, which has been able to successfully prevent child marriages in the state of Andhra Pradesh.

 

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End Notes

[1] (UNICEF 2009: 4)

[2] (National Crime Record Bureau [NCRB] 2008).

[3] Census of India, 1901, Vol. I, Part I, p. 440.

[4] Census of India, 1931, Vol.XVIII – United Provinces – Part I, pp. 289, 309-315.

[5] . The Arab Human Development Report 2005,

[6] Kirsten M. Backstrom, Note, The International Human Rights of the Child: Do They Protect the Female Child, 30 GEO. WASH. J. INT’L L. & ECON. 541, 5

[7] Backstrom, (see note 5)

[8] NFHS-2, p. 56. The term “gauna” describes the ceremony that takes place when a girl is sent to her husband for co-habitation. It was and still is customary in many parts of India to marry the girl and not allow her to leave her parental family at least until menarche and often later. The NFHS-2 has reported that the period between marriage and gauna has now been reduced to about one year in most cases

[9] This is a commonly accepted fact and is reported widely in the Indian media every year. The name of the festival is “Akha Teej.

[10] Munshi Ram v. Emperor, All India Reporter 1936 Allahabad 11; P. Venkataramana v. State, All India Reporter 1977 Andhra Pradesh 43.

[11] U. Joshi, “Child Marriage: Causes and Prevention,” Social Welfare 46/10 (2000): 18-19.

[12]Rajya Sabha debates on the Prevention bate.nic.in/bitstream/i23456789/30ii2/i/PD_ of Child Marriage Bill, 2004, that was eventually amended and passed as the Prohibition of Child Marriage Act, 2006

[13] As per Hindu Marriage Act 1955, the minimum age of marriage was 15 for girls and 18 for boys; this was amended in 1976, increasing the minimum age to 18 for girls and 21 for boys.

[14] S.3(1), The Parsi Marriage and Divorce Act, No. 3, 1936.

[15] Id., S.30-S.32

[16] Jaya Sagade, Child Marriage in India: Socio-legal and Human Rights Dimensions 47 (2nd ed. 2012)

[17] Case No CRM-M 29790 of 2009; Date of decision 27 November 2009

[18] Justice Rakesh Kumar Jain stated that no protection under Section 482 of the CrPC can be granted by this court because in that eventuality police protection has to be granted to a fugitive of law.

[19] Mrs. Tahra Begum vs State of Delhi and Ors; WP(CRL) 446/2012

[20] Government of India, Ministry of Women & Child Development, Annual Report 74 (2012-13), available at http://wcd.nic.in/ publication/AR201213_english.pdf [hereinafter Annual Report (2012-13)].

[21] Thompson & Allison M. Glinski, Now to End Child Marriage in a Generation, OPENDEMOCRACY.NET (May 1, 2014), http://www.opendemocracy.net/opensecurityAyric-thompson-allison-m-glinski/how-to-end-child marriage-in-generation [https://perma.cc/X5W4-FTD6

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Author: Shekhar Mishra (Amity Law School, Noida)

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