Efficacy of The Prohibition of Child Marriage Act, 2006 – regarding the age of marriage in the light of different marriage laws prevailing in India.
Pratim Sarkar
Child marriage is a common practice in different parts of the world, however it is prevalent in India, where more than one third of all child brides live. In certain parts of India child marriage became a custom, which in most cases is backed by family and societal pressure. As per the report of UNICEF, 47% of girls are married by 18 years of age and 18% are married by 15 years of age. These marriages are often performed without the consent of the girls involved in the marriage[1]. Indian laws has made child marriage not illegal but voidable. The highest rate are being seen particularly in the rural areas of A.P, Bihar, M.P, Rajasthan and U.P. It affects both boys and girls , but statistics show that girls are far more likely to be forced into a child marriage than boys. However the percentage of girls forced into Child marriage in India has declined in recent years[2]. Now a days child marriage is largely condemned, many consider child marriage to be a human rights violation resulting in death, health problems, poverty, and violence and of education.
Medieval Indian societies were afflicted by several evil social practices. Commendable efforts and initiatives were taken by many social reformers in addition to that modern, progressive secular education introduced by the British, laws were enacted by the colonial Government to prevent some of these evil practices. Child marriage was one of them.
With a view to restraining solemnization of child marriages the Child Marriage Restraint Act was enacted in 1929 and it was amended in 1949 and in 1978 in order to (inter alia) raise the age limit of the male and female persons for the purpose of marriage. The Act, though restrains solemnization of child marriages but it does not declare them to be void or voidable. The solemnization of child marriage is punishable in this Act also.
Relevant Provisions of different Laws prevailing in India deal with Child Marriage
The Prohibition of Child Marriage Act, 2006
Section 2 (a) “child’ means a person who, if a male has not completed twenty one years of age and a female, has not completed eighteen years of age.
Section 2(b) “child marriage” means a marriage to which either of the contracting parties is a child.
Section 3. Sub Section(1). every child marriage, whether solemnized 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.
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of marriage.
Section 9. whoever being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
Section 10. whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to five lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
The Special Marriage Act, 1954
Section 4. Conditions relating to solemnization of special marriages-
Cl. (c) the male has completed the age of twenty-one years and the female the age of eighteen years.
Section 24. Void marriages-
Sub Section (1). Any marriage solemnized under this Act shall be null and void and may on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if-
Cl. (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled.
The Hindu Marriage Act, 1955
Section 5(iii). the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of marriage.
Section 18. Punishment for contravention of certain other conditions for Hindu marriage-
(a). in the case of a contravention of the condition specified in clause (iii) of Section 5, with simple imprisonment which may extend to fifteen days or with fine which may extend to one thousand rupees or with both.
Muslim Law
One of the important elements of Muslim marriage is Puberty. ‘Puberty is a biological phenomenon. It is generally presumed to have been attained at age 15. A person who has attained puberty is called baligh(major). The possibility of attaining puberty at an earlier age is not ruled out-in exceptional cases boys and girls have found to have attained puberty even at age 12 and 9 respectively.’(The Muslim Law of India, Tahir Mahmood, 3rd Edition, 2002, LexisNexis, Butterworths)
The Indian Christian Marriage Act, 1872
Section 60. Every marriage between Indian Christians applying for a certificate, shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled and not otherwise-
(1) The age of the man intending to be married shall not be under twenty one years, and the age of the woman intending to be married shall not be under eighteen years.
The Parsi Marriage and Divorce Act, 1936
Section 3 Sub Section (1)No marriage shall be valid if-
Cl.(c) in the case of any Parsi has changed his or her religion or domicile or not who if a male has not completed twenty one years of age and if a female has not completed eighteen years of age.
Significance of the present law
The Act of 2006 would have far reaching ramifications. It being a secular Act, a piece of uniform civil code would be applicable on all communities of India[3]. This Act specifically declares that a child marriage is not void, it is only voidable. The object behind the enactment of this law is to discourage marriages between under aged persons[4]. Thus, if the parties to a child marriage do not get it annulled it shall remain to be a valid marriage before the law. Other than this the legislation does not demarcate between a child marriage and a normal marriage. This implies that the contracting parties to a child marriage have the same rights duties and obligations as the bride and the groom of an ordinary marriage. The provisions for custody and maintenance of the girl child has been made i.e. even of such marriage was declared void, the girl had the right to maintenance from the husband till the time she got remarried. Section 12 makes such marriages null and void in case the child is enticed or taken away from the custody of his/her lawful guardian or is by force compelled or by deceitful means induced to go from any place or is sold for the purposes 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. Further, under the new Act the punishment for encouraging or facilitating or solemnizing such marriages was increased. Nonetheless the policy of not holding the women liable for solemnization of such marriages was continued even under the new Act.
Attempt has been made through this new Act to prevent child marriages not to prohibit them. Under the Special Marriage Act such marriages are void, this Act has enacted for literate and advanced people who alone can normally perform civil marriages. On the other hand, the Hindu Marriage Act has enacted for all Hindu people including illiterate, socially-economically backward and tradition ridden people where child marriages are performed for centuries. An attempt to prevent all such child marriages through this new Act is appreciable.
The unbridled and unhindered mass child marriages performed throughout India, are a clear warning that the existing law prohibiting child marriages has failed miserably. The Law Commission took the notice of this failure of the present Act and making an extensive review in child marriages and its implications upon other laws the Commission by its 205th Report has suggested some proposal which can be incorporated in the present law so that it can strictly enforce. The relevant proposal (inter alia) of the Commission are like (i) Child marriage below the age of 16 be made void (i.e. legally unenforceable under any circumstances), (ii) Marriages where either or both spouses are between 16 and 18 be made voidable (i.e. giving an option of either party to get them annulled),(iii) The age of marriages for both boys and girls be made 18 years; (here the Commission says there is no reason for keeping a difference in the two ages), (iv) The provision of maintenance of the girl till her remarriage in either to be continued and all children arising out of either of the marriages under to be deemed legitimate, (v) The legal age for a girl to give sexual consent to be increased to 16 years;(vi) Registration of all marriages to be made mandatory.[5]
Judicial Approach
In Tanima v. Pradeep, the Court held that a marriage solemnized in violation of age requirement may not be strictly void or voidable. If one of the parties seeks a declaration that the marriage was a nullity on the ground of minority of the other spouse, the court must consider the nature of the dispute and then endeavour to adjudicate the matter[6]. In Kokkula Suresh v. State of AP, the Andhra Pradesh High Court has held that under Hindu Law, marriage of minor girl below 18 years is neither void nor voidable[7]. The Child Marriage Restraint Act, 1929 prescribed 15 as the minimum age for girls and 18 for the boys. But such was the then prevailing social condition that the child marriages were made neither void or voidable, but, once performed they were perfectly valid as held in Manish Singh v. State Government, NCT[8].
In T. Shivakumar v. Inspector of Police, Thiruvallur Town Police Station & Others[9], The Madras High Court held that Prohibition of child Marriage Act,2006 will have overriding effect over Hindu Marriage Act, 1955. Marriage contracted by a person with a female of less than 18 years is voidable and same shall be subsisting until it is annulled by a competent court under section 3. In Bhukhan & Others v. Kaushalya Bhai & Others[10], the High Court held that, marriage between parties below the age of 18 and 15 years is not void marriage as per Sec. 11 of Hindu Marriage Act. Further Section 18 of the said Act does not make marriage between parties who were below the required age at the time of marriage void but only provide punishment for its contravention. The concerned marriage therefore not declared void.
Delhi High Court observed in Association for Human Rights v Union of India and Others[11]. “Child marriage is a violation of human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty”.
Conclusion
In child marriage, not only the rights of the parties are violated but their immaturity, helplessness and inexperience in many respects make them more vulnerable to further exploitation. In that sense, child marriage is a clear violation of human rights. It is worth mentioning here that the right to free and full consent to marriage is recognized in the Universal Declaration of Human Rights and in many other subsequent Human Rights Instruments.
Child Marriages are a social phenomenon which cannot be tackled by legislative initiatives alone. Compulsory registration may not also provide the remedy for restraining the child marriages. This would primarily require change in mind set of the society. Attempt should be made so that people can of their rights, focusing on the evil effects of this practice.
[1] For details visit http://en.wikipedia.org/wiki/Child_marriage_in_India, last accessed on 10.09.2012
[2] Ibid
[3] Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law, (2012), Allahabad Law Agency, Faridabad, pp.108-109
[4] Dr. Basant K. Sharma and Divya Sharma, Hindu law, (2008), Central Law Publication, Allahabad, p. 51.
[5] ‘Child Marriage in India: Policy Changes proposed by the Law Commission of India’, viewed at http:// www.legalperspective.blogspot.com, last accessed on 08/09/2012
[6] AIR 1992 Ori 178
[7] AIR 2009 AP 52
[8] AIR 2006 Del 37
[9] AIR 2012 Mad 62
[10] AIR 2012 (NOC) 223 (CHH)
[11] ‘Delhi high Court recognizes Child Marriage as human rights violation’, for details visit http:// www.hrln.org last accessed on 01.03.2012