Child marriage has been a glaring failiure of the institution of marriage as it stands today. Despite there being laws enacted prohibiting matrimony in children; an incredibly high incidence of child marriages still subsists. Before their 18th birthday, 27 percent of girls in India are married and 7 percent are married before the age of 15[i].
Child marriage has an immense deep rooted cultural hold that encompasses many social evils like domestic abuse, maternal and child mortality, dowry and the like. It is not farfetched to say that child marriage slows down a nation’s growth exponentially by burdening children with familial responsibilities at a young age. It is especially cumbersome for the female child as it steals from her the opportunities of becoming financially independent and unhealthily promotes the idea of marriage as the ultimate achievement for women. In our society, women are looked down upon as a second gender and our cultural obsession with a “pure” woman or a virgin leads parents to see that their daughters are married off as early as possible lest they indulge in sexual intercourse voluntarily or are forced into it involuntarily (through molestation of any kind). In rural areas, child marriage is more common than in urban areas, and in the central and western parts of India, child marriage rates are typically the highest. The rates of Child marriage range from 47 percent to 51 percent in districts of Rajasthan and Bihar, for example. [ii] Other than this, child- bride trafficking is also a major issue that is not unheard of and can sometimes lead to these children being sold into prostitution and sex work.
Under Mitakshara and Dayabhaga
Historically, under the uncodified Hindu law, the two schools of thought namely Mitakshara and Dayabhaga had their own opinions on what should be the appropriate age of marriage of a child. As per Mitakshara, the age of 16 years and as per Dayabhaga completion of 15 years was deemed appropriate for marriage. Over time, especially after India’s colonization by the British, child marriage began to be seen as a social evil behind notorious cases of what would now be marital rape of children as young as 10 and 11 years of age. The statutory rape laws of today are premised on the idea that women under a certain age are incapable of consenting to sexual activity due solely to their age. Underage marriage and statutory rape go hand in hand in showing that an illegal foundation is bound to crumble.
Consequences of Child Marriage
Forced underage marriages pose significant public health problems, in addition to human rights and criminal law complications. One goal in clarifying the minimal age of marriage in India was to prevent a cyclical problem that pervaded states throughout the country: intergenerational preteen and teen pregnancy. Illegal abortions and female foeticide are prevalent in child brides, since many a times their lack of maturity makes way for exploitative adults to control their actions. The Child Marriage Restraint Act of 1929 fixed the age of marriage for girl child at 14 years and boys at 18 years came into force in British India. It lacked proper implementation due to the British fear of losing support from the Hindu and Muslim communalists but was an example of the social reform taking place in India. The Hindu Marriages Validity Act of 1949 validating the inter caste marriages constituted a great step in the direction of social reform. A complete renovation of the Hindu law of marriage was made by the enactment of the Hindu Marriage Act, 1955.
Role of PCMA, 2006 and Other Statutes
The Prohibition of Child Marriage Act, 2006 replaced the Child Marriage Restraint Act of 1929 with enabling provisions to punish and protect abettors and victims of early marriage. It also provides for Child marriage prohibition officers for areas specified in the official gazette by the state government. The Child Marriage Prohibition Officer has the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3 of the Prohibition of Child Marriage Act, 2006. The PCMA prohibits the solemnization of child marriage below the age of 18 for girls and 21 for boys. Then why does underage marriage persist despite law’s prohibitions and under what conditions does law fail? One reason is that religion and custom confuse the law. People, especially those who are uneducated and lack awareness tend to choose their own traditions and what they’ve seen in their respective society as the norm to be followed. But when these customs are “dowry” and “early marriage”, they inevitably give birth to more unaware adults with strong convictions that unwittingly prevent a whole gender from progressing. Religion no doubt has the power to bring people together but merely as a servant, not a master. Religion unfortunately has egotistical undertones in that it is often skewed in favour of the person interpreting it. Its ability to keep people on the path of righteousness cannot be denied but neither can its extremely fragile presence that turns it into an industry of hope. India is also a target country of the UNICEF-UNFPA Global End Child Marriage Acceleration Action Initiative, a multi-donor, multi-stakeholder programme working for four years across 12 countries. Via teen classes, the Global Initiative reached nearly 2.3 million girls in 2018, allowing their involvement in and access to health information and training in life skills.[iii]
Our law unfortunately is failing us on many counts. Despite there being what one may call rather nuanced laws that promise stringent action against a wrongdoer, the extremely high prevalence of underage marriage and rape (amongst others) still persists. The very idea that young women have a right to select their own partners—that choosing whom to marry and where to live ought to be personal decisions, based on love and individual will—is still regarded in some parts of the world as misguided foolishness. [iv]”Child marriage is fueled by the failure to strengthen and implement laws and policies to eliminate discrimination faced by women and girls, including within marriage and in seeking maintenance and inheritance, freedom from and remedies for physical and sexual violence, education, employment, and reproductive health services”. In the past, Hindu Personal law and provisions of PCMA did collide over which law should be given primacy however judges nowadays agree that keeping in mind the lex specialis doctrine, specific law gains precedence over the general law and . In a 2017 judgment, Justice Gupta of the Supreme Court of India indicated that the status of the PCMA as a special law means that it should have primacy over personal laws.
Being a secular Act, it is deemed to be more suited in cases of child marriage and for steering away from inconsistencies in interpretation of personal laws vis a vis PCMA. For example, under the Hindu Marriage Act, marriages below the age of 18 are voidable only if a girl was married before the age of 15 and challenges the marriage before she turns 18. If she got married after 15 but before 18 years of age, her marriage is valid and child marriages are not specifically recognized as involving force or fraud (which renders a marriage voidable). To dissolve a child marriage under the HMA a girl must seek a divorce. These loopholes in Hindu personal law are the reason secular Acts are preferred when delivering justice to the sufferer.
Making applicable a Uniform Marriage Code throughout India may force people to see one another as individuals rather than subsets of a religion. However, this today seems to be an improbable fantasy at most directive in nature and not enforced. People comply with personal laws more readily than they do with other statutes. The recent increase in reports of child marriage incidents (especially in small districts and rural communities) may be reflective of people being more aware and adamant in stopping such evil from persisting, even though the rate of occurrence is still alarming. It shows that the law is not reaching the rural and native of the village and poverty and ignorance is still winning the battle. Even today, one-third of the world’s child brides live in India.
From the point of view of the ICRW, every marriage of a teenager under 18 is a child marriage, and while conclusive accounts are unlikely, researchers suggest that 10 to 12 million girls in the developed world marry young girls every year.[v] The charity cautioned in its Global Girlhood Study 2020 that 2020 is a year of “irreversible setbacks and lost progress” for girls, forecasting that this year alone, 500,000 more girls are at risk of being coerced into child marriage and 1 million more are likely to become pregnant. In 2020, this growth took the overall number of child marriages to approximately 12·5 million[vi].It is the duty of the state to protect, prevent and provide redress for acts that are responsible for child marriage, through mechanisms that are both legislative and institutional in nature. Through the working of State and National Commissions, the government is obligated to establish laws and provisions to make perpetrators accountable and help to victims of child marriage accessible, even in the narrowest corners of our country. In doing so, it not only fulfils its duty towards the nation but also fulfills the need for humanity in general.
[i] Center for Reproductive Rights, Ending Impunity for Child Marriage in India, 2018, available at: https://reproductiverights.org/document/ending-impunity-for-child-marriage-in-india-normative-and-implementation-gaps (last visited on January 20, 2021).
[ii]Center for Reproductive Rights, Ending Impunity for Child Marriage in India, 2018, available at: https://reproductiverights.org/document/ending-impunity-for-child-marriage-in-india-normative-and-implementation-gaps (last visited on January 20, 2021).
[iii] UNFPA-UNICEF global programme to end child marriage, available at: https://www.unicef.org/protection/unfpa-unicef-global-programme-end-child-marriage (last accessed on January 19,2021).
[iv] Too young to wed, available at: https://www.nationalgeographic.com/magazine/2011/06/child-brides/ (last accessed on January 20, 2021).
[v] Too young to wed, available at: https://www.nationalgeographic.com/magazine/2011/06/child-brides/ (last accessed on January 20, 2021).
[vi] 2.5 million more child marriages due to covid 19 pandemic, available at: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32112-7/fulltext (last visited on January 20, 2021).
BY SHREYA SHARMA| NATIONAL LAW UNIVERSITY ODISHA