3.

3-Prohibition of Child Marriage Act in India

Child marriage is not a new phenomenon in Indian society. It has been prevalent in
India for centuries. The most common reasons for child marriage include poverty, lack of
education and insecurity among other reasons. However, child marriage brings along with it
various consequences. These include sociological as well as psychological consequences such
as denial of the right to education, early parenthood, hindrance in the physical and mental
development of both boys and girls etc.

Child marriages have been proven to be more devastating for girls as compared to boys.
Girls are expected to adjust to the major changes at an early stage of life. Girls are often exposed
to various crimes such as domestic violence and marital rape.

To prevent the harsh consequences of child marriage in India, the Child Marriage
Restraint Act, 1929, was enacted by the British in order to eradicate the culture of child
marriage in India. However, the Act was repealed and replaced by the Prohibition of Child
Marriage Act, 2006. This article seeks to analyse the various aspects involved in the prohibition
of child marriages in India.

Origin of the act

Child marriages have deep roots in Indian society. Even prior to the colonisation of the
State, child marriages prevailed on a large scale in India. However, in 1929, the Child Marriage
Restraint Act was enacted in order to eradicate child marriages in India. The age limit set by
the legislation was 14 years for girls and 18 years for boys.

The Act consisted of various loopholes. Firstly, the age limit was very low for both
boys and girls. Children could not be expected to have developed a mature mind as well as to
attain the physical health for marriage. The consequences of the marriage still subsisted. In
addition to this, the punishment under the Act was very trivial. Hence, the legislation was
amended in 1978 post-independence, in order to increase the age limit. The age limit was
increased to 18 years for girls and 21 years for boys.

The Act still failed to be proven effective in restraining child marriages in India. One
of the major reasons was the punishment under the Act. In order to bring reforms under the
law, the Prohibition of Child Marriage Act, 2006 was enacted, with increased punishment for
the offenders. The relevant provisions of the Act of 2006 have been discussed in further
sections.

Role of International Centre for Research on Women and UNICEF

The International Centre for Research on Women (ICRW) has played a significant role in
terminating the practice of child marriages in India. The policy adopted by the ICRW can be
summed up so as to include the following solutions to curb the practice of child marriages:

• Educating girls

• Providing economic support

• Educating parents and society

• Encourage supporting laws and policies

In India, the ICRW has implemented the Maharashtra Life Skills Programme through
which it was successful to increase the median age of marriage of a girl in Maharashtra from
16 to 17 in a short span of one year (1998-1999).

Another crucial international organisation that has been working rigorously to curb the
practice of child marriage in India is UNICEF. The policy adopted by UNICEF India is to
target the root causes of the practice and terminate the same. It has identified various socio-
economic causes to be the primary concern. Another important cause of child marriage is the
lack of education in society. UNICEF has joined forces with the UNFPA to implement various
policies to conclude the act of child marriages in India.

Relevant provisions of the Child Marriage Act of 2006

Section 3
Section 3 provides that if a child marriage has been solemnized before or after the
commencement of the Act, it shall be voidable at the option of the party to the marriage who
was minor at the time of solemnization. A district court may grant a decree for annulment of
the marriage if it is satisfied with the applicant.
Section 4
Section 4 of the Act provides that the district court is empowered to pass an interim order for
maintenance of the female child while passing a decree under Section 3, in order to ensure that
the girl child is able to fulfil her needs. The court may even direct the guardians of the male
child if it is found that he is a minor as per the Majority Act, 1875.
Section 6
Section 6 of the Act provides that if a child is conceived from child marriage, irrespective of
the fact whether a decree for annulment has been passed under Section 3 or not, such child
shall be deemed legitimate for every purpose.
Section 9
Section 9 provides the punishment for an adult male who solemnizes a child marriage, which
shall be rigorous imprisonment for a term which may extend to two years or fine which may
extend to rupees one lakh, or both.
Section 10
Section 10 provides that anyone who performs, conducts, directs, or abets any child marriage
shall be punishable with rigorous imprisonment for a term which may extend to two years along
with a fine which may extend to rupees one lakh.
Section 11
Section 11 of the Act provides that anyone who promotes or negligently fails to prevent the
solemnization of a child marriage shall be punishable with rigorous imprisonment for a term
which may extend to two years along with a fine which may extend to rupees one lakh. The
section also criminalises attending and participating in child marriage. The proviso to the
provision exempts women from imprisonment.
Section 12
Section 12 provides that where a child below the age of 18 years is enticed out of the keeping
of the legal guardian, or is forced, compelled or deceived, or is trafficked or used for immoral
purposes, and such child is made to solemnize a child marriage, such a marriage shall be void
ab initio.
Section 16
Section 16 of the Act provides the provisions for the appointment of the Child Marriage
Prohibition Officer by the State Government and provides the duties and powers of the officer.
The duties shall include prevention of solemnization of child marriages in areas under his or
her jurisdiction, collection of evidence for the prosecution of offenders under the Act, creating
awareness about consequences of child marriage, collection of statistics on child marriage in
areas under his or her jurisdiction etc. The officer is also empowered to approach the district
court seeking annulment of any child marriage.
Judicial precedents

The objective of the Prohibition of Child Marriage Act, 2006, as stated above, is to provide for
the prohibition of solemnisation of child marriages. The judiciary has analysed the provisions
of the Act on various occasions and has provided various landmark judgements. Some of the
most important judgements have been stated as follows:

Lajja Devi v. State (2012)

In this case, Mrs. Lajja Devi addressed a letter to the Hon’ble Chief Justice of the Delhi
High Court, informing him about the abduction of her daughter, Ms. Meera, who was a minor.
The High Court treated the letter as a writ petition and commenced the proceedings of the case.
It was found by the Court that Meera was not abducted, rather she eluded her parents to marry
one Charan Singh. Meera made a statement under Section 164 of the Criminal Procedure Code,
1973 that she eloped with her own will and married Charan as she was being forced to marry
someone else by her parents.

The issue before the Delhi High Court was whether the marriage of Charan and Meera,
provided that Meera was a minor at the time of the marriage, would be void under the Hindu
Marriage Act, 1955. The Court analysed the provisions of the Prohibition of Child Marriage
Act and held that the Act would override the personal laws, and the child marriage contracted
by a minor girl, shall be voidable. The Court also held that since the provisions of the
Prohibition of Child Marriage Act, 2006, provide that a child marriage shall be voidable, it
cannot be held void in any case.

Independent Thought v. Union of India (2017)

In the landmark judgement, the Hon’ble Supreme Court analysed the provisions of the
Prohibition of Child Marriage Act, 2006, along with Section 375 of the Indian Penal Code,
1860, and criticised the inconsistencies of the law. Exception II of Section 375 of the Indian
Penal Code states that sexual intercourse between a man and his wife, wherein the wife is not
below 15 years of age, shall not constitute as rape. On the other hand, the provisions of the
Prohibition of Child Marriage Act, 2006 provide that the marriages wherein the girl is below
18 years of age shall be voidable and persons supporting such marriages shall be liable for
criminal offences. These laws, when read together, create a group of female children between
the age of 15 to 18 years, whose marriage shall be voidable, yet the husbands shall not be liable
for the heinous offence of rape.

The Court held that the exception to Section 375 of the Indian Penal Code should be read down
as follows; “Sexual intercourse or sexual acts by a man with his own wife, the wife not being
below 18 years, is not rape”.

T. Sivakumar v. The Inspector of Police, Thiruvallur (2011)

In this case, the High Court of Madras analysed whether an application under Section
3 of the Prohibition of Child Marriage Act, 2006, was necessary for the marriage to be a
voidable marriage. The petitioner relied heavily upon the decision of a Division bench of the
High Court of Madras, G. Sravanan v. The Commissioner of Police, Trichy City (2011),
wherein it was held that child marriage is neither void nor voidable, rather it is a valid marriage
and the husband should be at liberty to seek the custody of his wife.

The High Court overruled the judgement of the division bench and held that reliance
shall be placed upon Section 3 of the Prohibition of Child Marriage Act and the marriage shall
be voidable until the parties accept the marriage or seek for annulment under the said provision
subject to the limitation period. Thus, an application under Section 3 is not necessary for the
child marriage to be voidable, as the same is affected by the provision by the virtue of the Act.

Impact of the Act of 2006

The Act of 2006 has been proven to be a great success. The data comparison from Census 2001
and Census 2011 substantiates the impact of the statute. According to a report by the ICRW,
the number of women between the age group 15-19 who have ever been married in the rural
areas has reduced from around 29 per cent to around 21 per cent. The number has been halved
in States such as Bihar, Uttar Pradesh and Andhra Pradesh. On the other hand, the numbers in
the urban area have remained stagnant at around 15 per cent all over the country along with an
increase in States such as Odisha and West Bengal.

Recent developments

The Prohibition of Child Marriage Act, 2006, replaced the Child Marriage Restraint
Act, 1929, in order to prohibit the solemnization of child marriages in India. However, child
marriages are still prevalent in the country at a significant rate. According to a report of the
Australian Aid in collaboration with the International Centre for Research on Women and the
United Nations Population Fund (UNFPA), child marriages are still prevalent at the rate of
50% in India. India is one of the most backward nations in prohibiting child marriages. The
condition of rural India is, even more, worse than that of urban India.

In order to overcome this situation, the legislature has introduced the Prohibition of
Child Marriage (Amendment) Bill, 2021. The Bill seeks to amend the minimum age of
marriage of a female child and bring it at par with that of a male child to 21 years. In addition
to this, the Bill also seeks to increase the limitation period for the marriage to be declared null
and void. The present limitation period under Section 3(3) of the Act is two years after attaining
the legal age for marriage, i.e. 21 years for males and 18 years for females. The Bill proposes
this period be increased to five years.

The statement of objects and reasons of the Bill states that the amendment is necessary
for bringing the status of women at par with that of men, citing Article 14 of the Constitution
of India. The Bill, if enacted, shall also bring an amendment to all the personal laws in order to
change the minimum age of marriage to be 21 years for both men and women.