Child marriage can be defined as a marriage solemnized between two people where the female is below the age of 18 years, and the male is below the age of 21 years. Child marriages usually take place in rural areas where illiteracy and poverty are widespread.
Many factors affect child marriages such as ignorance, social customs and traditions, low level of education and considering women as a financial burden.
Child marriages have their repercussions such as health problems to women due to early age pregnancies, further deterioration in the status of women and a vicious cycle of gender inequality ensue.
General Law on child marriage
The law has failed to curb the prohibition of child marriages that are taking place across the religions, specifically Hindus in most cases. Many NGOs are fighting to eradicate the same and a movement is going on regarding the same. Even public interest litigations filed could not bring about any substantial difference. There is a need for sensitization in society regarding child marriage. Many attempts have been made to regulate child marriage even before the Independence of India and the commencement of the Indian constitution. Below mentioned are the general laws aimed at to regulate child marriage, though there has been no complete abolition of the same.
Child Marriage Restraint Act, 1929
This was the first of its kind legislation regulating the “child marriage” by prescribing the required age of marriage for both the parties to the marriage across India. This act aims to restrain the child marriage fixing the age of marriage for girls at 14 years and that of boys at 18 years but did not make the marriage void by itself. It only prescribed punishments for an adult male who married a minor and the parents who promoted such marriages. However, the punishment was very less and the fine was trivial. This act was amended in 1949 and 1978 to raise the age limit of male and female for marriage. However, this act largely remained a dead letter and failed to achieve its objectives.
Prohibition of Child Marriage Act, 2006
As a result of the ineffectiveness of Child Marriage Restraint Act, 1929; new legislation to replace it was enacted in the form of Prohibition of Child Marriage Act, 2006 however, this act was passed on January 10, 2007. The Act envisages preventing child marriages with enhanced punishments of rigorous imprisonment for two years and/or fine of INR 1lakh. It defines a child to mean a male below 21 years and female below 18 years. A minor is defined as a person who has not attained the age of majority as per the Majority Act. There are provisions for maintenance of the girl child. The husband is liable to pay the maintenance in case he is a major. In case the husband is a minor, his parents would be liable to pay the maintenance. The legal status of child marriage is voidable at the option of the parties. However, if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void. The Act also provides for the appointment of a Child Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness
The Prohibition of Child Marriage Act, 2006, is aimed to:-
1. Punish the ones involved in the performance of child marriage, and
2. To provide a legal opportunity to both the spouses of child marriage to repudiate the marriage, by way of a decree of nullity. (Voidable & Void)
The present law is gender-neutral in providing the right to both the boy and the girl child of forced marriage. The Prohibition of Child Marriage Act, 2006, may be viewed as: –
1. General and secular legislation (which applies to all the citizens of India).
2. Penal legislation.
3. Social and progressive legislation.
Matrimonial legislation, only to regulate “child marriage”, having a uniform application (Status of child marriage).
Child Marriage In Hindu Marriage Act, 1955
Section 5 (iii) of this act states that the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage.
Under the Hindu Marriage Act, only the parties to child marriage are punishable even if they did not consent to the union. There are no provisions for punishing the parents or people who solemnised the marriage. A girl can get the marriage annulled only if she was married off before attaining the age of 15 and she challenges the marriage before turning 18. There is no express provision to prohibit child marriage per se.
Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence on the part of the legislature in Section 11 & 12 and express rule in the form of provision of Section 13 (2) (iv), renders it valid. As a result of silence on the part of the legislature in Section 5, 11 &12 and express provision under Section 18 of Hindu Marriage Act, child marriage is valid as seen in the case of Manish Singh vs. the State of NCT
Neetu Singh vS the State & Ors. the High Court of Delhi held that the marriage of minor is neither void nor voidable, but is punishable.
Under the Hindu Marriage Act, none of the parties has the option to repudiate the child marriage by way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs. State of Rajasthan directed that State should take necessary steps to stop the menace of child marriage by punishing all involved in such marriages. As a result of which, the Chief Minister of Rajasthan had made a special appeal to all its people in the State to prevent these child marriages.
Nevertheless, a female child has been given right to repudiate the marriage under Section 13 (2) (4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the exercise of power by the legislature under Article 15 (3) of the Indian Constitution.
In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu Marriage Act, 1955 and express provisions in the same, the status of child marriage in Hindu Marriage Act, 1955 appears to be uncertain. There is a possibility of two arguments in this context:
1. That the child marriage in Hindu Marriage Act, 1955 is not valid, refer Section 5, or
2. That the child marriage in HMA is neither void nor voidable but renders valid.
It would be further proper to refer to some judicial pronouncements, to know the judicial position:
In P. Venkataramana vs. State, the Andhra Pradesh high court noted that such marriage in Hindu Marriage Act, 1955 is not void, by observing that had the lawmakers intended that they would not have given to a wife the right to repudiate her marriage solemnized before the attainment of the age of 15 years. Moreover, the high court observed that neither under Section 11 nor under Section 12 of the Hindu Marriage Act, 1955 there is any mention of marriage in contravention of Section 5 (iii).
Supreme Court in Lila Gupta vs. Lakshmi Narain, laid down that though Section 5 (iii) of the Hindu Marriage Act prescribes a minimum age of marriage, a breach of this condition does not render the marriage void. The court, in this case, observed that it would be hazardous for marriage laws to treat a marriage in breach of a certain condition as void even though the law does not expressly provide for it. This case was concerning the rights of a widow to inherit her deceased husband’s property against the claims of her brother-in-law and nephew who had challenged the validity of her marriage.
The same approach was taken by the Karnataka High Court in V. Mallikarjunaiah vs H.C. Gowramma. In this case, the husband had sought a declaration from the trial court that his marriage was void since he had not completed the age of 21 at the time of marriage. According to the court, the law does seek to discourage marriage of underage boys and girls but not to the extent of making the marriage void or voidable.
Andhra Pradesh High Court in Kokkula Suresh vs the State of AP held that such marriage is neither void nor voidable but valid. Court also recognizes the husband as the guardian of the girl child (female spouse) and he was entitled to her custody.
However, Madras High Court in T. Siva Kumar vs Inspector of Town Police Station has taken a completely different outlook. It was held that even though a marriage contracted by a person with a female of fewer than 18 years is voidable and subsists until it is annulled by the Court, the marriage though not invalid but is also not a valid marriage in the strict sense and the male does not have all the rights which would otherwise emanate from a marriage which is valid in a strict sense.
Marriage of a Minor Muslim as per Muslim Personal Law
Muslim law is not codified in India. Therefore, its provisions are based on the interpretation of the Quran by scholars. Under Muslim law, there is no bar for child marriage. A guardian has a right to get a child marriage. However, the couple has ‘option of puberty’ where they can repudiate the marriage after attaining puberty. However, they must do so before turning 18 and only if the marriage has not been consummated. The age of marriage under Muslim law is the age of puberty which is 15 years. However, marriage before the age of 7 even if contracted by a lawful guardian, is void ab initio.
The option of puberty and Repudiation of marriage
“Option of puberty” is a right which is given to both the parties of the Muslim marriage to repudiate i.e. to cancel the marriage, if solemnized during minority, with the consent of theirs. For marriage in Muslim Personal Law. They can exercise this option on attaining the age of 15, as this is the age where it is presumed that parties are major so far as marriage is concerned. As far as the exercise of option of repudiation is concerned, it is just that the child marriage (marriage solemnized during minority) must be valid (must have been done with the consent of legal guardians).
Following are the ingredients which are to be established to exercise this right:-
1. Marriage during minority with the consent of father or guardians for the said marriage, and
2. Attainment of Puberty (Majority i.e. 15).
In Behram Khan vs. Akthar Begum, it was held that ‘Consummation of marriage before the age of puberty does not deprive the wife of her option. But the consummation of marriage after attaining puberty disables the person from exercising the right of repudiation/option of puberty.
Some of the judicial pronouncements for the age of puberty
Privy Council in Nawab Sadiq Ali Khan vs. Jaya Kishori, says that the majority in the case of a girl child is attained at the age of 9.
Md. Idris vs. State of Bihar and Ors., Patna High Court ruled that as per the interpretation of Muslim law, by Mulla, in Mulla’s Text on Principles of Muslim Law, the age for a girl to attain puberty is 15 years of age.
Mis. Seema Begum vs. the State of Karnataka. In this case, the declaration was sought by a Muslim girl, who was 16 years of age when a petition was filed, that she is not governed by the provisions of Prohibition of Child Marriage Act, 2006 and in her case, it is the Muslim personal law, which has allowed her to marry on 15. The petition was rejected and no such declaration was issued in her case.
Karnataka High Court, accordingly held:
1. That a Muslim girl is not free to marry on her own before the attainment of the age of majority or the required age of marriage i.e. 18 years of age as per the definition of “child” under section 2 (a) of Prohibition of Child Marriage Act, 2006.
2. That the statutory law (Prohibition of Child Marriage Act, 2006) will prevail over the uncodified personal law (Muslim personal law).
3. That Prohibition of Child Marriage Act, 2006 applies to all the Indian citizens uniformly irrespective of their religion.
4. That despite Delhi High court ruling that a Muslim girl can marry before 18 years of age.
Therefore, child marriage of two Muslims could be terminated in the following way:
1. Avoidance of Marriage: Option of Puberty (followed by judicial order).
2. Avoidance of Marriage under Prohibition of Child Marriage Act: Decree of Nullity.
Dissolution of marriage: Divorce & Talaq
NHRC Guidelines on Child Marriage
In their report, they said that to prevent early marriage is to make education free and compulsory for all children up to the age of 18 years. Accordingly, the Right to Education Act must be amended so that it is applicable up to class 14 instead of class 8 right now.”
The report, ‘India child marriage and teenage pregnancy’, compiled by NCPCR and the NGO Young Lives India, shows that in almost all states, the completion rate of secondary schooling is significantly higher among unmarried girls in the 15-19 years’ age group. The report shows that in the 15-19 age group of married girls, 30 per cent have never received any education, 21.9 per cent have got primary education, 10 per cent have secondary schooling while only 2.4 per cent have higher education.
Among states, in Bihar, which has a child marriage prevalence far above the national average, the completion rate of secondary education among girls who married before 18 years is 51 per cent, followed by Delhi and Rajasthan at 54 per cent and 57 per cent, respectively. “There is a strong correlation between the educational attainment of girls and early child marriage. There is also a strong association between parents’ low aspirations for a child’s education and teenage marriage,” said Renu Singh from Young Lives. The data also showed that 32 per cent of married girls aged 13 to 19 years had their first child when they were still in their teenage. NCPCR Chairperson Stuti Kacker cited the example of Karnataka, which has made child marriage null and void.
The Prohibition of Child Marriage Act 2006 doesn’t invalidate child marriage but only gives the contracting parties the option of annulling it within two years of becoming an adult or through a guardian in case they are still minors. The WCD ministry’s proposal, seeking to make child marriage ‘void ab initio’, is pending approval of the Union cabinet for a while now.
About the author –
This article has been written by Mohd Monish, 2nd year law student at Maharaja Agrasen Institute of Management Studies, New Delhi.