Efficacy of The Prohibition of Child Marriage Act, 2006

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

Uniform Civil Code: The Dormant Law

Prof. Annam Subrahmanyam and Mohan Rao, Bolla

Introduction

The High Court of Kerala in Agnes alias Kunjamol v. Regeena Thomas, has been confronted with a peculiar question of which the law has been dormant. It has, inter alia, reference to a long awaited issue of enactment of Uniform Civil Code. Despite the Constitutional mandate by Part – IV of the supreme law of the land, no state has had courage to make the law on the subject. Long ago, in the Shah Bano Case, the Apex Court has expressed its regrets that Article 44 of the Constitution has remained a dead letter. One decade after Shah Bano Case, in Sarla Mudgal v. Union of India, the Supreme Court of India, has reiterated the need for the Uniform Civil Code for India.

India has been declared more ‘secular’ through the 42nd Constitutional Amendment in 1976. Secular character was considered as one of the basic structures of the Constitution of India by the Kesavananda Bharathi Court. Alas, the plight of women in India has been continuing unabated in the male ‘chauvinistic’ society!

The Peculiar Agnes Case The story of the Agnes case hails from the most literate district of Kerala, viz., Ernakulam. There are several peculiar and interesting issues in this case. Firstly, it pertains to a ‘legal battle between a mother in law and a daughter in law’ in which the mother in law has succeeded in the lower courts. The brief facts of the Agnes case are as follows: The first plaintiff/appellant, Mrs. Agnes, was married to one Sebastian, the youngest son of the defendant. At the time of the marriage, a sum of Rs. One Lakh has allegedly been given to the defendants’ family by the first plaintiff’s family. Sebastian was also allegedly having 75% share in the Prakash Gold Covering business managed by his father. As the father was sick, the business was being run by Sebastian.

 

Another peculiarity of the case was that Sebastian became mentally sick and the sickness aggravated to such a stage that he had caused the death of one of his two children. He was prosecuted under Section 302 IPC but was given the benefit of Section 84 of IPC. He is undergoing treatment in a mental hospital. The other child of the first plaintiff and Sebastian, i.e., Ms. Nayana (minor) is the second plaintiff in the instant case.

 

After the death of the father in law, the business was run by Thomas the elder son of the defendant. The first plaintiff has been living in the ‘Tharawadu’ house (the ancestral residential house in the name of the defendant which is said to have been maintained with the One Lakh rupees brought by the first plaintiff). The defendant has been providing Rs. 1000/- per month and Thomas was giving Rs.2000/- per month for some time to the first plaintiff. Another peculiarity is that the defendants stopped giving the amounts to the Plaintiffs and strangely served eviction notice to the first plaintiff. Thus, the battle between the mother in law and the daughter in law has begun. The daughter in law replied obviously that she would be rendered homeless but the defendant and her family were not willing to provide anything for her and her daughter and were only willing to do something to Sebastian. Apprehending forceful dispossession, the suit was filed by the Plaintiff. The defendant resisted the suit.

 

The daughter in law claims that the amount of Rs. One lakh given by her family at the time of the marriage was utilized for the maintenance of the ‘tharawadu’ (ancestral) house. The house according to her has been orally given to her by the defendant. The defendant being a retired teacher claims that the (‘tharawadu’ house) schedule property was acquired with her own funds. She wants to evict the daughter in law (even without providing anything for her living) and sell the residential house to utilize the sale proceeds for treatment of her son Sebastian.

 

The Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit. The Appellate Court too dismissed the appeal. Both the Courts found that “being a Christian there is no ‘tharawadu’ (ancestral) for the family and the first plaintiff has no manner of the right over the suit property.”

 

The Subordinate Status of Women

 

The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role. As housemakers, women’s contribution to the household economy has remained unremunerated and un accounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S. 125 Cr.P.C, some relief to such women. But, such a state of affairs is far from satisfactory. “ The Court lamented that ‘the relief provided under section 125 Cr.P.C., is far from satisfactory.’

 

Justice Bhavadasan has traced the position in Common law and observed that in Common law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out. The Court recalled,’ the Hindu Law has always recognized the independent status of wife. In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives. Both the parties belong to Christianity and the Indian Christian Marriage Act, 1872 does not provide any property rights to the daughter in law.

 

However, the Court held that the principle of ‘ubi jus ibi idem remedium’ applies in this case…,”

Article 44 : The Dead Letter

 

As a matter of regret the Court ruled that Article 44 of our Constitution had remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Court observed that there was no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. The Court expressed its hope that the community is likely to bell the cat by making gratuitous concessions on this issue.

 

The Court further reminded that ‘It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.’

 

The Court realized the difficulties in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecement attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. speaking through Chief Justice Y.V. Chandrachud in Mohd.Ahmed Khan v. Shah Bano Begum held as under:

 

“The High Court expressed wonder as to how long would it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu Law – personal law of the Hindus – – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country…. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacrament origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India.”

 

Comparing the two provisions viz. Arts.25 and 44 the Court analyzed that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Arts.25 and 26 is a suspect legislation. …. in Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others it was opined that it was a matter of regret that Art.44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. Accordingly, ‘a common civil code will help the cause of national integration by removing the contradictions based on ideologies.’

 

Relief Granted

 

The evidence was to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforceable right in this regard. The Court finally ruled that certainly, the Plaintiff, ‘has a right to reside in the matrimonial house,’ reminding that her husband has been mentally ill and ‘one can easily understand the plight of the first plaintiff and her daughter.’

 

Accordingly, the appeals were allowed and in the result, the setting aside the judgments of the lower courts, the Hon’ble Court issued an ‘order of permanent prohibitory injunction against the defendant [or any one claiming under her] from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.’

 

The counter claim filed by the respondent/defendant was held dismissed. Further, the plaintiffs were held entitled to their costs throughout.

 

Conclusion

It may be concluded that this judgment of the Kerala High Court through the Justice P.BHAVADASAN would be an eye opener for the parliamentarians to come forward to enact a law in pursuance of Article 44 of the Constitution of India in the interest of rendering famine justice. It is sumitted that we can’t, with a sigh of relief, feel contended with the laudable judgments of the Courts like the one we are discussing about. It may be pointed out that time is ripened and it is for the legislature to enact a law for a Uniform Civil Code. It is analytically clarified in the case and the Court’s historic venture to do justice to an unfortunate Christian woman of whom the law has been silent, was so apt and appreciable.

 

But, the State cannot remain a mere spectator when many a Shah Bano and Agnes suffer due to lack of the statutory aid given in pursuance of Article 44 of the Constitution. By performing its duty, the State would render justice to the needy, deserving and deplorable Chiristian and Muslim (Minority) women. Hope that the parliamentarians exhibit the courage expected by the Supreme Court in Shah Bano and Sarla Mudgal cases by enacting a law in pursuance of Article 44 of the Constitution.