Introduction- Child Marriage is defined as a marriage of a girl before the age of 18 and a boy before the age of 21 and refers to both formal marriages and informal unions in which children under the age of 18 live with a partner as if married. Child marriage affects both girls and boys, but it affects girls disproportionately. Child marriage is a global issue. It is fueled by gender inequality, poverty, social norms and insecurity, and has devastating consequences all over the world. Prohibition of Child Marriage Act, 2006 prohibits child marriage in India. This act has some loopholes regarding the different age for boys and girls and a few others. To curb the same, The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in Lok Sabha in 2021. The Bill amends the Prohibition of Child Marriage Act, 2006 to increase the minimum age of marriage of females. But, it was criticized by the opposition parties on various grounds. But, will this steps further address various issues such as providing opportunities for girls in backward and poverty-stricken areas or better access to healthcare.
Features of PCMA Act:-
The Prohibition of the Child Marriage Act, 2006 (hereinafter referred to as ‘PCMA,2006) was introduced due to the ineffectiveness of The Child Marriage Restraint Act, 1929.
The features of PCMA Act, 2006 are as follows:-
- The latter provided for simple imprisonment which may extend to three months and shall be liable for the fine too, this was the punishment in the case of a male adult above the age of 21 years marrying a child. In the same act (The Child Marriage Restraint Act, 1969) punishment for the male adult below the age of 21 years to marry a child is simple imprisonment which may extend for fifteen days or with a fine which may extend to one thousand rupees, or with both. To put it in a nutshell, in the 1929 Act, the imprisonment was simple in nature while the PCMA, 2006 introduced rigorous imprisonment which would extend to two years with a fine of one lakh rupee or both.
- In the PCMA,2006 there are provisions for the maintenance of the female contracting party and there are also provisions regarding the custody and maintenance of children of the child marriages (Section 4 and Section 5 of the PCMA, 2006). The provisions for maintenance were not present in the Child Marriage Restraint Act of 1929.
- The PCMA, 2006 also looks over the legitimacy of the children of child marriage. In the PCMA, 2006 if the husband is a minor (below the age of twenty-one, as the prescribed age of marriage), his parents would be liable to pay the maintenance.
- In the PCMA 2006, the legal status of child marriage is voidable at the option of the parties. However, if the consent is obtained by fraud or deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void. The voidable nature of Child marriage was also introduced in this act. The concept of child marriage being voidable was absent in the previous act.
- The PCMA, 2006 also provides for the appointment of a Child Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness regarding the same.
- The PCMA, 2006 repealed the Child Marriage Restraint Act, 1929 under section 21.
- The PCMA, 2006 calls for bringing an amendment to the Hindu Marriage Act, 1955, mainly in section 18 of the Hindu Marriage Act, 1955.
- The PCMA, 2006 gives power to the state governments under section 19 to make rules regarding child marriage.
Statistics:-
| State | 1991 | 2001 |
| Uttar Pradesh | 53.3 | 53.0 |
| Rajasthan | 57.2 | 57.1 |
| Bihar | 61.2 | 60.3 |
| Maharashtra | 38.5 | 38.8 |
| Madhya Pradesh | 52.9 | 53.0 |
| Chhattisgarh | – | 51.8 |
| Jharkhand | – | 61.2 |
| West Bengal | 53.0 | 53.3 |
| Gujarat | 33.1 | 33.5 |
| Orissa | 36.1 | 36.3 |
| State | NFHS Survey(1998-1999) | NHFS Survey(2006-2007) |
| Uttar Pradesh | 62.4 | 58.6 |
| Rajasthan | 68.3 | 65.2 |
| Bihar | 71.0 | 69.0 |
| Maharashtra | 47.7 | 39.4 |
| Madhya Pradesh | 64.7 | 57.3 |
| Chhattisgarh | – | 55.0 |
| Jharkhand | – | 63.2 |
| West Bengal | 45.9 | 54.0 |
| Gujarat | 40.7 | 38.7 |
| Orissa | 37.6 | 37.2 |
| State | Crimes Against PCMA |
| Andhra Pradesh | 32 |
| Arunachal Pradesh | 0 |
| Assam | 139 |
| Bihar | 5 |
| Chhattisgarh | 1 |
| Goa | 0 |
| Gujarat | 16 |
| Haryana | 33 |
| Himachal Pradesh | 7 |
| Jharkhand | 3 |
| Karnataka | 185 |
| Kerala | 8 |
| Madhya Pradesh | 5 |
| Maharashtra | 50 |
| Manipur | 0 |
| Meghalaya | 0 |
| Mizoram | 0 |
| Nagaland | 0 |
| Odisha | 24 |
| Punjab | 13 |
| Rajasthan | 3 |
| Sikkim | 0 |
| Tamil Nadu | 77 |
| Telangana | 62 |
| Tripura | 4 |
| Uttar Pradesh | 12 |
| Uttarakhand | 9 |
| West Bengal | 98 |
| Total | 786 |
Case laws
In the landmark judgement of Independent Thought v Union of India the Supreme Court decided that the exception should be read as “sexual intercourse or sexual acts by a man with his own wife, the wife not being below 18 years, is not rape.
In the case of Lajja Devi v Union of India the Delhi High Court held that since the provisions of the Prohibition of Child Marriage Act, 2006, provide for child marriages to be voidable, it cannot be held void under the Hindu Marriage Act, 1955.
In T. Sivakumar v The Inspector of Police, Thriuvallur The High Court of Madras, held that the child marriage is neither void nor voidable, rather its a valid marriage. The High Court overruled the judgement of the Division bench and also stated that Section 3 of the PCMA Act, 2006, is not necessary for the child marriage to be voidable.
205th Law commission report–
Law Commission Report in its 205th report recommend to amend the prohibition of child
Marriage Act, 2006 and other allied laws. The law commission was requested by the supreme court in the writ petition(Criminal) 81of 2006, filed by the Delhi Commission for women and the National Commission for women to bring mandatory changes in the PCMA relating laws.
The law commission report also figured out some loopholes in the PCMA and Allied Acts, they are as follows:-
- In the IPC section 375, exception 2, sexual intercourse with one’s wife who is of the age of fifteen and above is not considered punishable. It does not make it liable under the Prohibition of the Child Marriage Act, 2006. Inconsistencies of different laws and sections would lead people to misuse the same for the personal unmentioned gains
- According to the PCMA, each state government has to draft rules for the implementation of the Act and each state has to appoint trained Child Marriage Prohibition Officers (CMPO) who should know what their duties are. But in reality, this has not happened because currently only 24 states and union territories have drafted rules according to the PCMA whereas only 20 states and union territories have appointed CMPOs.
- There are inconsistencies over the age of majority for marriage. In many customary and personal laws, the age is not consistent with other laws regarding marriage in the country
- Registration of all the marriages is not made compulsory under a stipulated time period, which makes it difficult to actually keep track of the number of child marriages and how many people are affected by the same
Recommendations by the 205th Law Commission Report:-
- i) That child marriage below a certain age, ie. 16 years of age be made void. However, all the Sections relating to maintenance in Section 4 of the PCMA 2006 regarding maintenance to the female party to the marriage till her remarriage and the provisions relating to child custody and legitimacy of the children in Section 5 and 6 of the PCMA 2006 be made applicable to cases of void marriages also.
- ii) All marriages between 16 and 18 should be made voidable at the option of either party. The sections relating to maintenance, child custody, and legitimacy in Sections 4, 5 and 6 should be applicable to voidable marriages as they are at present.
Consequently Section 3(1) and 3(3) of the PCMA 2006 should be amended to incorporate the changes outlined in paras (i) and (ii)above and will read as under:-
“3(1) (i) Any marriage of a child below 16 years of age solemnized after the commencement of this Act will be null and void and may, on a petition be presented by either party thereto against the other party be so declared by a decree of nullity.
(ii) Every marriage of a child between the ages of 16 and 18, whether solemnized 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.”
Section 3(3) should be amended to read as under:-
“(3) The petition under Section 3(1)(ii) may be filed at any time till the person contracting a child marriage attains 20 years of age.”
iii) That the exception to the rape Section 375 of the Indian Penal Code be deleted. This would ensure that the age of consent for sexual intercourse for all girls, whether married or not, is 16. The 172nd Report of the Law Commission had recommended increasing the age of consent for all girls to 16.
- iv) Registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government.
- v) The age of marriage for both boys and girls should be 18 years as
there is no scientific reason why this should be different. Consequently the present Section 2(a) of the PCMA should be deleted and replaced by the following Section 2(a):-
“(a) ‘child’ means a person who has not completed 18 years of
age.”
- vi) Other acts like the Hindu Marriage Act should also be amended to ensure that the provisions in the said acts are the same as and do
not contradict the Prohibition of Child Marriage Act, 2006.
Child Marriage (Amendment) Bill, 2021:-
NEW BILL ON PCMA AND THE CHANGES MADE IN THE SAME.
The new Child Marriage Amendment bill was introduced in the Lok Sabha on 20th December, 2021. The primary objective of this bill is to raise the legal marriage age for females from 18 to 21 in India. The justification behind this amendment is the enforcement of the Constitutional mandate of gender equality as the legal marriage age for males in India is 21.
The following key amendments have been made in the prohibition of Child Marriage Act:
- Section 2 of the Child Marriage Act under which child now refers to any male or female who has not attained the age of 21 years notwithstanding any such law or customary practice opposed to this amendment.
- Substitution of the words 2 years with 5 years in Section 3(3) of the act, which deals with the child filing a petition for the annulment of child marriage. Post this amendment; a child may file such a petition only before completing five years of attaining majority.
- Insertion of Section 14A in the act states that these new amendments will have an overriding effect in context to the existing laws or customs that may contradict the amendments.
The other personal and marriage laws such as the Hindu Marriage Act, Hindu Minority and Guardianship Act and the Foreign Marriage Act, Indian Christian Marriage Act, Parsi Marriage and Divorce Act, Muslim Personal Law (Shariat) Application Act and the Special Marriage Act shall be amended accordingly to be consistent with these new provisions. This legislation will be implemented two years after the President’s approval.
Union Women and Child Development Minister, Smriti Irani, introduced this bill stating that it will be applicable to all castes and religions. This act itself upholds the principles of the fundamental right to equality by keeping the marriage age 21 years of both male and female citizens. This will widen educational and occupational opportunities for women as it
In addition to this, empowering women by improving their nutrition levels and lowering the maternal mortality rate was another bill.
Since this bill has overriding properties, it will completely nullify the provisions mentioned in the various personal and marriage laws regarding the age of marriage. For example, the age of marriage for females is 18 years and 21 for males under Section 5(iii) of the Hindu Marriage Act, 1955. The new amendment act will nullify this particular provision and mandate the minimum age of 21 years for both males and females.
The opposition stance on the Child Marriage (Amendment) Bill, 2022:-
- One of the opposition leaders Adhir Ranjan Chowdhury said that the government did not consult with any of the stakeholders before introducing the amendment and suggested that the bill should be sent to the Standing Committee
- Gaurav Gogoi, another opposition leader said that “even the law commission had objections to bill so it should be sent to the Standing Committee
- Trianmool Congress’ member Saugata Roy said that the minorities were totally opposed to the bill and the stakeholders need to be consulted
- AIMIM MP, Asaduddin Owasi said that the bill is against fundamental rights. As an 18 year old can vote but cannot get married?
There are certain drawbacks of the new Amendment Bill 2021:-
- The most striking fact about this bill is that no amendments were made for child marriage in the bill.
- The Prohibition of Child Marriage Amendment Act, 2021, has no provisions to make child marriage void. Under the current legal regulations, as stated in Section 3(1), child marriage is voidable at the option of the underage party to marriage within two years of attaining maturity.
- This bill also brings out major problems, for instance, the difficulty in implementation of the law. The past records state that when the law is used it mostly penalizes the young adults for the self arranged marriage.
- However there has been a decline in the child marriage which from 27% in 2015-16 to 23% in the year 2019-20. However, the situation is not upto mark.
- Moreover, 70% of the early marriages took place in the deprived sections of the community such as schedule caste and schedule tribes. If the law is being implemented it would push them even further.
- Moreover, education plays a vital role. As per the state of the world report 2020 published by UNFPA, in India 51% of the young women have no education and 47% among those who have only primary education had married by the age of 18. The study conducted by the International Centre for Research on Women has found that the girl out of the school are 3.4 times school are 3.4 times more likely to be married or have their marriage already fixed than girls who are still in school
Due to the above mentioned drawback the Child Marriage Amendment bill, 2021 has been put on hold.
Referred to the Standing Committee on Education, Women, Children, Youth and Sports Affairs by Naidu, the Bill, which has received objections from women and child rights experts, was to present its report in the current session of the House, by March 24. The extension was on the request of Committee Chairman Vinay Sahasrabuddhe. The panel will now submit its findings to Parliament by June 24.
Conclusion:-
Child marriage is a serious issue in India. A lot of girls get married before the legal age i.e. 18 years and they face a lot of issues such as domestic violence, Sexual abuse, STD diseases, etc. There is a law in India to prohibit this concerns. It may have a small amount reduced the child marriages, but it still lacks due to some provisions, which were pointed out by law commission report and they suggested some amendments in the law. Also, the government through Child Marriage Bill, 2021 tried to amend some provisions, but they were criticized by the opposition due to some loopholes being in the amendments. Further, the bill will be discussed in the parliament in the mid 2022.
