Child marriage means a marriage where two individuals marry before attaining the age of majority. For marriage, the girl’s age should be 18 years and the boy’s 21 years.
Child marriage is the bad reality of our society, and even after enacting several laws by the parliament, these kinds of marriages are still in practice in India.
Although both boys and girls are the sufferers of child marriage, comparatively, the girl child is the one who suffers the most. Early marriage leads to early responsibilities, early pregnancy, no access to education, etc. Even the girl is not mentally, emotionally, or physically prepared for the marriage and subsequent responsibilities. Such marriage takes away the childhood of a girl.
Child marriage is a violation of human rights as well as the Fundamental Rights of an individual.
In this law note, we will learn about the laws related to child marriage and the issues faced by the girls and boys who enter such marriage.
Meaning of Child Marriage
“Child” means a person who has not completed the age of 21 years in case of male and 18 years in case of females”. “Child Marriage” means a marriage to which any of the contracting parties is a child.
Development of Laws on Child Marriage
The origin of child marriage is not certain, but this is a very old concept, and even after making various laws to stop this practice, it is still prevalent in India, especially in the rural areas.
The movement against child marriage was first started after the case of Queen vs Haree Mohan Mythee (1890), in which an 11-year-old girl died due to injuries sustained during sexual intercourse with her 35-year-old husband.
The age of consent for sexual intercourse was increased from 10 years to 12 years by the Criminal Law (Amendment) Act, 1891, to protect women from immature cohabitation. Later in 1929, the age of consent was again increased from 12 to 13 years by the same amendment in case of child marriages.
In 1927, a Bill to prevent the solemnisation of child marriages among Hindus by declaring such marriages void if either party was under the age of marriage was presented by Rai Sahib Har Bilas Sarda. The Bill was then converted into the Child Marriage Restraint Act, 1929.
Legislative Provisions for Child Marriage
Legislative provisions brought by the parliament to prevent or restrain child marriages are:
The Child Marriage Restraint Act, 1929
The Child Marriage Restraint Act applies not only to Hindus but also to all the citizens of the society. Initially, the age prescribed in this Act for marriage was 14 years and 18 years for females and males, respectively. Later by an Amendment Act of 1949, the age limit of girls was raised to 15 years. After that, through an amendment in 1978, the age of both boys and girls was increased to 18 and 21 years respectively.
It is believed that an increase in the age of marriage will be better for the development of a girl and her child.
The Child Marriage Restraint Act gives the power to the court to penalise the groom who is above 21 years of age with 3 months of simple imprisonment and a fine for marrying a minor girl. And if the groom is between 18 – 21 years, he shall be punished with simple imprisonment of up to 15 days or a fine of Rs. 1,000 or both.
Parents or guardians can be penalised with simple imprisonment of 3 months along with a fine.
However, a similar option did not exist for a female adult who married a minor boy, probably due to the rare occurrence of such cases.
The Hindu Marriage Act, 1955
The Hindu Marriage Act lays down various conditions for solemnising a valid marriage between a male and female. Before the enactment of the Child Marriage Restraint Act, 1978, if a male is a minor and has to marry, then the consent of a guardian is a must in such cases. But after the enactment of the Child Marriage Restraint Act, 1978, the age of marriage was increased to 18 years for females and 21 years for males and consent of guardians is not required in such cases.
Section 5 provides the essential conditions for a valid marriage. And if any marriage is performed in contravention of section 5(iii), which specifically lays down the age of parties for performing a marriage, then such a marriage will be voidable.
The Prohibition of Child Marriage Act, 2006 (PCMA)
As per the Prohibition of Child Marriage Act, any party to the child marriage can declare their marriage to be voidable. And a girl can file a petition for a voidable marriage until she attains the age of 20 years or till her remarriage. This Act also allows a girl to take maintenance and residence from the male member (groom) or his parents.
Punishments given under PCMA are quite higher than the Child Marriage Restraint Act, 1929 as the punishment for male adult or anyone who performs, conducts, directs, or abets any child marriage has been enhanced to 2 years of rigorous imprisonment or with a fine up to one lakh rupees or both.
All the offences performed under this Act are cognizable and non-bailable and also allow for an injunction to restrain child marriages.
The provision declaring child marriage invalid and void in specific cases, including kidnapping, abduction, or trafficking of minors, is perhaps the most significant modification made by the Act.
Child Marriage and Reproductive Rights
Every human being has a right to marry voluntarily and the right to reproduction. Child marriage indeed leads to loss of childhood, early pregnancy, etc.
Marrying a girl in her childhood will undoubtedly result in infringement of her reproductive rights as at that age when she is not mature enough to take care of her, how can we expect her to take care of a baby.
The girl is tiny, and she is more prone to become the victim of marital rape, sexual abuse by her husband, undesirable pregnancy, early maternity, and most importantly, her life is not her own anymore. It is being controlled by her husband or in-laws.
However, Human rights campaigners have long contended that the government must be held responsible for the abuse of reproductive rights because they have a responsibility to defend the human rights of their citizens.
Case Laws Related to Child Marriage
Case laws related to the provisions of child marriage are given below.
The court stated that the Prohibition of Child Marriage Restraint Act, 2006, is secular and overrides the Hindu Marriage Act, 1955. However, even after the enactment of the Prohibition of Child Marriage Restraint Act, 2006, there are still certain gaps in the law because it does not prohibit child marriage. The practise of child marriage has been discouraged by regulation, but it is not entirely prohibited.
The Himachal Pradesh High Court held that child marriage is neither void nor voidable.
The Punjab and Haryana High Court observed that the solemnisation of child marriage is not a defence to a claim for conjugal rights restitution.
Child marriage is a severe social problem that infringes on the reproductive rights of girls, which make up the majority of their human rights.
Early marriage and motherhood infringe on a girl’s freedom to manage her own body, limit her educational and professional options, and cause problems for her and her children.
As a result, the human rights of a female child are violated at a time in her life when they are most vulnerable. And even though there are specific legislations enacted by the government to prohibit child marriages, child marriage is still prevalent in our society.
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