3.

CHILD MARRIAGE :

 This was initially dealt with the Child Marriage (Restraint) Act, 1929 and
was later received by Prohibition of Child Marriage Act, 2006.

 Section 5(3) of HMA prescribed minimum statutory age for marriage: Boy
– 21 years and Girl – 18 years. Marriage amendment in 1978 revised the
age and increased it 21 years and 18 years respectively.

 Applicability:

 1.Child marriage is applicable on all the citizens of India irrespective of

what religion they follow. PCMA is applicable to Christians & Parsis.

2. In Islamic law, they follow traditional laws wrt to marriage, gifts,

ceremonies, etc. Here, the ROL shall always be traditional law and not
codified law. The traditional law prescribes a lower age for marriage
which is in recognition to Shariat law. Upon attainment of puberty.

Voidability: A marriage performed between a couple where either or both

the parties are below the statutory age does not render the marriage void-
ab-initio.

The marriage of two children is deemed to be valid until one of the parties
obtains a judicial decree of annulment.

 Saramma v. Ganpati held that child marriage, 1975 AP, was void.

 P Ventakramana v. State of AP relied on factum valet doctrine to

declare it voidable in nature. A and B at the age of 13 and 9 got married.
Criminal complaint under 498 filed, claimed there was no legal marriage
relying on Saramma v. Ganpati, which was overrule din this case.

 Guardians consent is extremely important in child marriage.

S. 12(1)(c) of HMA states that the consent of the petitioner, or where the
consent of the guardian in marriage of the petitioner [was required under
section 5 as it stood immediately before the commencement of the Child
Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of
such guardian was obtained by force [or by fraud as to the nature of the
 ceremony or as to any material fact or circumstance concerning the
respondent.

 If the consent of guardian is obtained through fraud then they have the
remedy to approach the court and declare it annulled. Only under this
situation will the marriage be voidable.

 Section 12 void marriage a) Taken out of keeping of lawful guardian, b)

by force or compelled, or by any deceitful means c) is sold for purpose of
marriage all cases void.

 Section 14 shows that marraiges in contravention of injunction orders shall

be void.

 Section 13(2) (iv) calls for repudiation of marriage by bride. It is

irrelevant whether the marriage has been consummated or not after
reaching 15 years of age. The bride has the option to repudiate the
marriage till the age frame of 15-18 years. This right cannot be claimed
after 18 years.

Here, the guardian can file a suit in the child’s name. He/she shall be
known as “Guardian at Litum”. This right is only recognized for
litigation. Usually not allowed by courts- done only by looking at child's
interest

After declaration for repudiation is passed, no conjugal rights can be there.

 Section 13 also provides the Court power as per S.13 w.r.t injunction
regarding child marriages and that JMFC or Metro Mag has this power. If
court is satisfied that child marriage is about to be solemnized, may issue
injunction. Can be taken both suo moto or on receopt of complaint.

 Section 18 of HMA provides for a punishment & fine.

S. 18: Punishment for contravention of certain other conditions for

Hindu marriage. Every person who procures a marriage of himself or
herself to be solemnised under this Act in contravention of the
 conditions specified in clauses (iii), (iv),  [and (v)] of section 5 shall be
punishable—
 [(a) in the case of contravention of the condition specified in clause
(iii) of section 5, with rigorous imprisonment which may extend to two
years or with fine which may extend to one lakh rupees, or with both;]
(b) in the case of a contravention of the condition specified in clause
(iv) or clause (v) of section 5, with simple imprisonment which may
extend to one month, or with fine which may extend to one thousand
rupees, or with both

PROHIBITION OF CHILD MARRIAGE ACT

It goes ahead to differentiate b/w Child v. Minor.

 MINOR: Defined as per Indian majority Act.

 CHILD: Any boy (below 21 years) & any girl (below 18 years). This
specific provision is only for PCMA and not for any other provisions.
(Section 2)
 HMA does not deal clearly w/ child marriage and as to whether it is void
or voidable. Section 3 of the PCMA deals w/ the same:
Section 3: Child marriages to be voidable at the option of contracting
party being a child.-
(1)  Every child marriage, whether solemnised 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 the marriage.
(2)  If at the time of filing a petition, the petitioner is a minor, the petition
may be filed through his or her guardian or next friend alongwith the
Child Marriage Prohibition Officer.
(3)  The petition under this section may be filed at any time but before the
child filing the petition completes two years of attaining majority.
(4)  While granting a decree of nullity under this section, the district court
shall make an order directing both the parties to the marriage and their
parents or their guardians to return to the other party, his or her parents
 or guardian, as the case may be, the money, valuables, ornaments and
other gifts received on the occasion of the marriage by them from the
other side, or an amount equal to the value of such valuables, ornaments,
other gifts and money: Provided that no order under this section shall be
passed unless the concerned parties have been given notices to appear
before the district court and show cause why such order should not be
passed.
 The party who are not fulfilling the conditions and are falling in the
category of child marriage are the only ones who can approach the court of
law.
 For males, you have reached the majority but are still a child as per the
provisions of PCMA then they can approach the court on their own.
 Limitation period shall be applicable in the time period the party shall
approach the court of law for remedy. They should approach within a
reasonable time.
 As per Section 3 of PCMA 2006, every child marriage, whether
solemnized before/after commencement of the act is voidable at the
instance of the parties.

COGNIZANCE & I NJUNCTION, SECTION 13:

 Child marriage restraint officer has the right to take cognizance of the
offence either during or after the marriage. But, under PCMA any person
can file suit and the district magistrate must take cognizance and issue
order to stop the marriage. In case if there is no DM, a collector can take
cognizance of such event.
 Injunction: Any competent court can issue injunction against child
marriage. In case of a regular marriage (valid marriage), one cannot seek
for injunction as the essentials under CPC for balance of convenience is
not fulfilled.
 Cognizance: Thus, the cognizance of the event can be taken by anyone i.e.
magistrate, police officer, suo motto by court or any stranger. If the officer
(under duty) does not take cognizance of such case, he can be punished
under law.
  Further, parties participating or abetting child marriage shall also be
punished.

MAINTENANCE AND CUSTODY, SECTION 4:

S. 4: Provision for maintenance and residence to female contracting party to
child marriage.-

(1)  While granting a decree under section 3, the district court may also make an
interim or final order directing the male contracting party to the child marriage,
and in case the male contracting party to such marriage is a minor, his parent or
guardian to pay maintenance to the female contracting party to the marriage
until her remarriage.

(2)  The quantum of maintenance payable shall be determined by the district court
having regard to the needs of the child, the lifestyle enjoyed by such child during
her marriage and the means of income of the paying party.

(3)  The amount of maintenance may be directed to be paid monthly or in lump

sum.

(4)  In case the party making the petition under section 3 is the female contracting
party, the district court may also make a suitable order as to her residence until
her remarriage.

 A child born in a child marriage shall have maintenance rights. If the

marriage is terminated and one party who gets the custody of the child
cannot pay for the maintenance, the other party must provide for it.
 Since, the other party is also a child, the parents must provide for
maintenance.
 In regular marriage if the parties cannot provide maintenance, their
guardians will not be involved to provide for the maintenance for that
child. This is dealt under HMA and Hindu Adoption Act.
 Parents will only get involved if they have taken a share of the property
from the party.
HUSBAND v. WIFE DIFFERENCE
 The husband can claim maintenance only till he turns 18.
  Wife is considered to be under the custody of the husband.
 Hence, the husband’s guardian must provide for her even after she turns 18
and will only stop when she becomes capable of doing so.
 The husband has a right to claim from wife, but that shall only be
exercised if it is ensured that the husband’s guardian themselves do not
have enough to provide for him.
 If the maintenance of the wife continues after the age of 18 then the
law applicable will change to HMA from PCMA.
 After remarriage maintenance shall not be given.

LEGITIMACY OF CHILDREN, SECTION 6:

S.6: Legitimacy of children born of child marriages.- Notwithstanding that a

child marriage has been annulled by a decree of nullity under section 3, every
child begotten or conceived of such marriage before the decree is made, whether
born before or after the commencement of this Act, shall be deemed to be a
legitimate child for all purpose

A) REGULAR MARRIAGE

It shall be considered as a legitimate marriage and all rights u/HMA shall be

available

B) CHILD MARRIAGE

Even if the marriage is dissolved, the children (offspring) will get property rights.
Their legitimacy shall be u/PCMA and their property rights shall be u/HSA

C) V OID MARRIAGE

˅
This marriage is void-ab-initio. Here, initially the court had passed decree that a
child born out of void marriage/irregular marriage shall be considered as
illegitimate child. But, after the 1975 amendment, certain rights were given to
them – (i) if the child is born before 1976 and the father dies before 1976 then no
property rights (ii) if the child is born before 1976, father dies after 1976 then
there shall be property rights. Hence, the property rights are determined when the
question of succession came into question (which here is the time of father’s
death).

MAJOR ENTERS INTO A MARRIAGE, SECTION 9:

S. 9: Punishment for male adult marrying a child.- 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

 B=22, G=16; the boy can be punished for the same if he knowingly
entered into this marriage’
 B=18, G=16; B will be punished but not under PCMA but under IPC.
 B=14, G=20, G will be punished but not imprisoned. She will only be
fined or the fine shall be imposed on her guardians.

SECTION 10:

S. 10: Punishment for solemnising a child marriage.- Whoever performs,

conducts, 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 one lakh rupees unless he proves that he had reasons to believe
that the marriage was not a child marriage.

 Here, the people promoting/permitting child marriage shall be held liable

for punishment. Females shall be exempted from imprisonment

SECTION 11:

S. 11: Punishment for promoting or permitting solemnisation of child marriages.

- (1) Where a child contracts a child marriage, any person having charge of the
child, whether as parent or guardian or any other person or in any other
capacity, lawful or unlawful, including any member of an organisation or
association of persons who does any act to promote the marriage or permits it to
be solemnised, or negligently fails to prevent it from being solemnised, including
attending or participating in a child marriage, shall be punishable with rigorous
imprisonment which may extend to two years and shall also be liable to fine
which may extend up to one lakh rupees: Provided that no woman shall be
punishable with imprisonment. (2) For the purposes of this section, it shall be
presumed, unless and until the contrary is proved, that where a minor child has
contracted a marriage, the person having charge of such minor child has
negligently failed to prevent the marriage from being solemnised.

 The scope of section 11 is extremely wide. This includes people like

guests, pandits, maulvis and other members who were invited to the
wedding and knew that the marriage in question is child marriage.
 Guardians are punished separately (legal guardians = mother and father).
Thus, legal guardians are punished different and other family member who
abetted the marriage is covered separately under Section 10.

DE-FACTO GUARDIAN, LEGAL-GUARDIAN:

 If X is child and his Mother and Father are alive but he lives with his
paternal uncle. Here, his M&F are legal guardians and the paternal uncle
who provides for him and keeps him is his de-facto guardian.
 The de-facto guardian is a recognized guardian by the legal guardian who
have given the child to the de-facto guardian themselves.
 However, a de-facto guardian cannot take decision for a minor child.
 Even as per Hindu Minority Guardianship Act, when the legal guardians
are not present then there is a list of guardians who are only allowed to
take decision for that child.
 If the de-facto guardian takes a decision for the minor child, then once the
child turns 18 he can seek for compensation from the de-facto guardian if
it has caused him loss.
 The head of orphanage or an Ngo shall be considered as legal guardians.
 Hindu Minority Guardianship Act gives a list of legal guardians.

DIFFERENCE B/W SECTION 3 & S ECTION 12 AND EXPLANATION FOR S.12:

 Marriages under Section 3 are voidable in nature and marriage under
Section 12 is directly void in nature.
 If child marriage done by legal guardian or a de-facto guardian in good
faith then its voidable but if it’s done by an unlawful guardian then its
void.
 Thus, Section 12 has multiple grounds to declare a marriage void:

S. 12: Marriage of a minor child to be void in certain circumstances.- Where

a child, being a minor- (a) is taken or enticed out of the keeping of the lawful
guardian; or (b) by force compelled, or by any deceitful means induced to go
from any place; or (c) is sold for the purpose 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, such marriage shall be null
and void.

1. UNLAWFUL GUARDIAN

 An unlawful guardian is the one who abducts the kids by enticing them
or kidnapping them and taking them away from their legal guardian. If
this unlawful guardian gives the child away for a child marriage, the
marriage shall be void-ab-initio.
 A de-facto guardian is an authorized guardian who is appointed w/ the
permission of the legal guardian. The one who acts as a guardian but is
not a legal guardian.

2. FORCE:

 If other parties use external force on the child’s guardians and coerce
them to marry the child off then this marriage will be void-ab-initio.

3. SOLD FOR MARRIAGE:

 If child exchanged for some consideration, then the marriage is void-

ab-initio.

4. ADDITIONAL GROUND (SECTION 14- AGAINST INJUNCTION):

  The officer may issue an injunction to stop a child marriage. If the
marriage takes place despite the injunction then the marriage is void-
ab-initio.

Section 18 of HMA prescribes punishment for all these acts.