Author: Ms. Nellie Bimla Emmanuel, Faculty of Thakur Ramnarayan College of Law
The marriage between two individuals is considered a holy sacrament and binds the couple in a bond for a lifetime filled with trust, respect, love without any coercion or force. The consent of the parties is an important aspect for constituting a marriage that should be free and the parties to the marriage should be entitled and competent to give consent. This aspect is sometimes negated or not considered for a few reasons. One such reason and the most principal of them all is child marriage.
A marriage whether informal or formal between a child and an adult or another child below the age of eighteen years is considered as child marriage. Such marriages often occur between a girl and a man which expresses gender inequality. It violates the rights that the children are entitled to and the victims undergo long-term consequences by such act. It acts as a toll on the mental health of the children and they also suffer through various health-related problems due to early pregnancies and childbirth.
THE HISTORY OF CHILD MARRIAGE:
In various sections of the world, before the Industrial Revolution began, countries such as China, India and Eastern Europe had a practice in which the women got married on reaching puberty. In the 19th century, the people living in agricultural groups were categorized based on such marriage practices. The men refrained from marrying before they accrued wealth and then were married to adolescent girls who contributed by giving dowry in these marriages for the finances of the family.
In medieval and ancient communities, girls were engaged on or before reaching puberty. The age of marriage for girls was fifteen years and in the Jewish world, it was on reaching puberty. Ruth Lamdan once wrote that in the 16th century, child marriages were the norm as they were so common. Northwest Europe relatively had late marriages where the ages varied from the mid-20s to 30s for both men and women, this gave rise to legislation in this regard in the year 1275 wherein sexual relations with a girl child between the ages of twelve to fourteen were criminalized and severe punishments were granted.
In the 18th century, in Syria, marriages were contracted at a young age but consummation in such marriages was not allowed until a certain age. In the 1830s, less than 10% of women in Egypt were married before the age of twenty years and in the year 1923, the Egyptian Parliament set the age of marriages as sixteen for women and eighteen for men.
CHILD MARRIAGE AND THE LAWS OF INDIA:
India is one of those countries which have been practising child marriage. Even after the laws relating to this matter are made by the Parliament, such marriages do not reach the verge of prohibition. The reasons behind such practice are societal and family pressure, poverty and tradition. The girl child is considered a burden and hence to get rid of them, early marriages come into the picture. They are forced to get married and bear children even before their minds and bodies are ready for it. Child marriages are nothing less than a social evil but there were legislators who tried to frame laws to eradicate such practices.
The Prohibition of Child Marriage Act, 2006 (PCMA) came into force after replacing the Child Marriage Restraint Act, 1929 to eliminate the ineffectiveness of the Child Marriage Restraint Act, 1929. The PCMA aims to prevent child marriages by granting punishment of rigorous imprisonment up to two years and or with a fine of up to One Lakh rupees. The Act defines a child as below the age of 18 years if a female and below 21 years if a male. The Act provides for a Child Marriage Prohibition Officer to prevent such child marriages.
The provisions of personal laws inconsistent with PCMA are as follows:
The Hindu Marriage Act, 1955 punishes the parties to the marriage and not their parents even if their consent was not obtained. The girl can repudiate the marriage before turning eighteen if it was solemnized before she attained fifteen years of age. The Act does not prevent such marriages making them voidable and not void.
The Indian Christian Marriage Act, 1872 states that 14 days prior to the marriage a notice needs to be served if a marriage needs to be solemnized between minors and after the expiration of the period, the marriage can be contracted without the guardian’s consent.
The Muslim law has not attained codification in India but based on the interpretations of the Quran, child marriage is not prohibited. The guardians can get the children married but Khayar-ul-bulugh that is the option of puberty exists in case the children want to renounce the marriage.
The Courts have often highlighted that the secular law of PCMA should prevail over personal laws.
In the case Lajja v. State, the High Court of Delhi ruled that the Prohibition of Child Marriage Act, 2006 prevails over the personal laws.
In Seema Begaum v. State, the High Court of Karnataka reiterated the Delhi High Court judgment and stated that the secular law overcomes personal laws.
Hence, the judiciary supports the prevention of child marriages through its judgments.
THE MODERN ERA PRACTICE:
Due to the current and rising pandemic situation in India, many people have lost their jobs and this has resulted in a drastic impact on the livelihoods of the poor and below the poverty line. With this rising poverty, the practices of early marriages are also rising to reduce the expenses of the family. A toll-free emergency number called Childline has stopped 5,200 marriages during a span of two months during the pandemic and it was reported that thousands of such practices go undetected. A United Nations report made a prediction that the pandemic can lead to a rise of 13 million early marriages in addition. According to the report presented by UNICEF, 23 Billion child brides were hosted by India in 2019. In India, 7 per cent of girls were married before the age of 15 years and 27 per cent before the age of 18 years. Every year at least 1.5 Million girl children get married before turning eighteen.
The subjects of such marriages are deprived of their educational opportunities and are subjected to domestic violence, childbirth and oppression. The economic hardships faced by the people are the main drivers of child marriages.
THE SUPREME COURT’S VIEW:
A Division Bench of The Supreme Court comprising of Mohan M. Shantanagoudar J. and Aniruddha Bose J. interpreted Section 9 of the Prohibition of Child Marriage Act, 2006 which punishes a male above the age of 18 years for marrying a minor girl. The Court in the case of Hardev Singh v. Harpreet Kaur & Ors. stated that the PCMA does not anticipate punishing a male between the age of eighteen to twenty-one for solemnizing a marriage with an adult female. The court held that the Act neither punishes a woman for marrying a male child.
The Apex Court in its verdict iterated that the decisions in our society regarding such marriages are taken by the guardians or the parents and elders of the bridegroom and bride and the girl child who is the bride has little or no say in these matters.
Without the sustenance of the views of equality, child marriage cannot be curbed. The demands to declare child marriages as void ab initio cannot be attained until and unless society and that includes each and every person desire to eradicate this practice. The issues will rise when declaring such marriages will jeopardize the rights of the victims of early marriages. The societal norms need to function as per the Laws of the land which are made to protect the children and their rights. The step of declaring Uniform Civil Code in this regard may also result be a great step in serving the purpose.
 The Prohibition of Child Marriage Act, 2006, No. 6, Acts of Parliament, 2006 (India).
 The Child Marriage Restraint Act, 1929, Imperial Legislative Council of India, 1929 (India)
 The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).
 The Indian Christian Marriage Act, 1872, No. 15, Acts of Parliament, 1872 (India).
 Lajja v. State [W.P (Crl.) No.338/2008] (India).
 Seema Begaum v. State [W.P No. 75889 of 2013 (GM-RES)] (India).
 United Nations Report.
 United Nations Children’s Fund (UNICEF).
 The Prohibition of Child Marriage Act, 2006, No. 6, Section 9, Acts of Parliament, 2006 (India).
 Hardev Singh v. Harpreet Kaur & Ors. (Cri. Appeal No.1331of 2013) (India).