Physical, mental and psychological evolution of a human being takes place with time and it is through education one achieves the bare minimum of one’s own discernment but owing to the socio-cultural set up of the Indian society, there exist certain time immemorial practices that holds back the growth of an individual and of the society as a whole.
One such challenge remains to be the solemnization of child marriages in India whereby the research conducted by UNICEF shows that globally around 21 percent of young women are married before the age of 18[1] where one of the three world’s child brides live in India.[2] India ranks fourth among the eight South Asian countries in terms of child marriage prevalence with Uttar Pradesh as home to the largest population of child brides.[3] Child marriage refers to the solemnization of marriage when either the man or woman has not completed the minimum marriageable age prescribed by the law.
Marriage comes with a bundle of lifelong responsibilities and when such responsibilities are laid upon children of tender age, it not only violates their basic rights but also weakens the very progress of the society at large.
Child marriage only strengthens the prolong suppression of children’s rights whereby their premature involvemnt in the complexity of a marriage renders their mental, pyschological and physical growth obsolete. Although child marriage is detrimental to both the genders, the severe effect of the same lands majorly on the child brides whereby they become subject to the whims of their husbands and in-laws. For the collective progress and development of a nation, empowerment of a woman is of paramount importance to eradicate menaces like gender inequality and increase their participation in the workforce but when young girls are married off by their families, they not only suffer loss of education but also go through sexual abuse, premature pregnancies which ultmiately poses a threat to their health.
The origin of the custom of child marriage in India is not known but a general inference can be drawn from the ancient living conditions that might have forced parents to adopt such a practice. Child marriage was a common practice in ancient India and it is only upon instances like Queen Empress v. Hurree Mohun Mythee[4] after which consequences of child marriages were considered as a young girl child was raped by her husbnad which led to her death owing to the incapacity of her body to take such trauma. The Child Marriage Restraint Act, 1929 was then enacted to bring a social reform concerning the restraint of child marriages. The statute prohibited child marriages by providing penalizng provisions for the same but did not invalidate a child marriage ab initio.
According to the Act, an adult male engaging into a marriage with a child bride would be liable for a simple imprisonment which may extend to three months or fine and if the adult male was below 21 years but above 18, the punishment was reduced to just 15 days or fine. Owing to the inadequate magnum of punishment, the Act was hardly taken into serious consideration by either the police or people in general. Another loophole left by the Act remained to be the unaddressed situation where a female adult married a male child which exists till today.
To amend and strengthen the dead provisions of the Child Marriage Restraint Act, 1929, the Legislature of India passed Prohibition of Child Marriage Act, 2006 with more strict penalizing provisions.
The act defined child marriage whereby 'child' referred to a girl below 18 years and a boy below 21 years of age and also explicitly discourged its practice but nevertheless did not provide anything on the invalidation of a child marriage at its very inception. The ambiguous and irrational position of law for providing punishments but not a provision that explicitly bans child marriage is unaccounted for. Under the Act, the propagators, abettors or people who were involved actively in the occurrence of a child marriage were made liable to be punished. But again, the efficiency of such provisions remained inactive in their application as the loopholes around the validity of child marriage still existed at its very core.
The provision of making a marriage voidable at the option of a minor when he/she attains the age of majority and the limitation period provided for doing so not only violates the very basic right of children to have a life with dignity but also creates a harsh onus of responsibility on the minors to get their marriage repudiated before time. The inadequacy of the laws render the victims of child marriage in such a situation whereby once they are tied with a person during their tender age, they are rarely able to get it annulled owing to the gross dependency of child brides on their husbands and lack of education further aggravates their situation of dismay.
Apart from that, the position of personal laws are somewhat the same on the subject. For example, the Hindu Marriage Act requires the parties of marriage to be of competent age which is 18 for girls and 21 for boys but also leaves room for its validation through the option of repudiation.
As far as this is concerned, no legal or logical rationale has been given by the law makers for not providing the complete ban on child marriage and making it invalid in the eyes of law at its inception. Contrary to these anomalies, the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 was passed which declared child marriage void ab initio and illegal at its very core. Thus, no provision of repudiation was provided here so that all child marriages lose the essence of legality from the very beginning. The Supreme court praised this reform in the landmark judgment of Independent Thought v Union of India[5] whereby it also elaborately talked on the menace of child marriages and how it needs to be eliminated from the society to secure, uplift and empower the social and legal position of women in our country.
Lastly, the Prohibition of Child Marriage (Amendment) Bill that was introduced in 2021 proposes to raise the marriageable age of women from 18 to 21 which not only overloads the already loaded anomaly of law but also lacks in ending the very root of child marriages in India. Ground work needs to be done for the effective implementation of laws prohibiting the child marriages whereby the law has to first prohibit the validity of the solemnization of all child marriages brining in about a uniform law that supersedes the personal laws. As personal laws cannot override a child’s right to life and education, the legislature needs to look at the very root cause of the problem by providing enough opportunities for the young women to pursue their education which will in turn make them capable enough to be the judge of their own life through independency. Thus, it is only through more explicit and certain laws and rules, justice can be brought forth for the eviction of child marriages in India.
[1] Child Marriage Around the World, UNICEF, https://www.unicef.org/stories/child-marriage-around-world [2] Ending Child Marriage ; A Profile of Progress In India, UNICEF, https://www.unicef.org/india/media/1176/file/Ending-Child-Marriage.pdf [3] Id. [4] ILR (1891) 18 Cal 49 [5] (2017) 10 SCC 800
This article is written by Isha of Symbiosis Law School, Nagpur.