Child marriage in India remains at a level not due to social conservativeness, but due to the manner in which the law has been formulated. In India, even with numerous reforms, there has been no declaration of child marriage to be void per se across all the personal laws. Rather, the legal system swings between deterrence, protection, and accommodation, which is usually at the expense of the autonomy of the minor, especially that of young girls.
To understand this problem, it is necessary to discuss the conceptualisation of void and voidable marriages in the Indian matrimonial laws, the way the Prohibition of Child Marriage Act, 2006 (PCMA) interacts with the personal laws, and the misuse of criminal laws such as the Protection of Children from Sexual Offences (POCSO) in teenage relationships.
Void and Voidable Marriages: Law
The Indian marriage laws are not based on a uniform criterion in terms of invalidity. Whether a marriage is void, voidable or simply punishable will all be subject to the law of personal law or statute of the parties.
Hindu Marriage Act, 1955
According to the Hindu Marriage Act, Section 11, a marriage is considered void when it has contravened certain set provisions like bigamy, forbidden relation between spouses or sapinda. Interestingly, age does not form part of the reasons that make a marriage void.
Consequently, in verbatim, a Hindu child marriage has been made a valid marriage, although it could face legal prosecution under other laws. The HMA has always been noted by the courts not to forbid child marriage as such, which indicates an evident legislative loophole, which is suspended only after the application of the Prohibition of Child Marriage Act, 2006.
Special Marriage Act, 1954
The Special Marriage Act is very different. In Section 4(c), the age requirements for males are 21 years, and for females are 18 years at the time of marriage.
Any breach of this stipulation makes the marriage null as provided in Section 24. This renders the SMA the only Indian matrimonial law that makes a direct connection between age and voidness, and which demonstrates the readiness of the Parliament to impose a strict age limit in a secular, civil marriage.
Christian Marriage Act, 1872
The Christian Marriage Act is the main set of rules that control the process of solemnization. The problems of nullity are solved by Section 19 of the Indian Divorce Act, 1869, which only acknowledges void marriages on a few grounds, which include impotence, prohibited unions, lunacy, and bigamy.
The ICMA, in all cases, including those concerning the minors, only demands a 14-day notice before solemnization. This once again shows that the law only regulates the child marriage process and does not ban it substantively.
Muslim Personal Law (Uncodified)
Muslim personal law is uncodified, but categorises marriages into Sahih (valid), Batil (void) or Fasid (irregular). Marriages that are consanguineous or affinal and fosterage or polyandrous are only voided.
Child marriage is not specifically outlawed. The ability to marry is usually associated with puberty, and it is assumed to be at around 15 years. The limited and controversial nature of legislative intervention has been because Muslim personal law is based on religious interpretations, but not the statute.
Child Marriage Laws: A Caution to a Crackdown
The Child Marriage Restraint Act, 1929, was the first law that tried to deal with child marriage in India. It did not, however, invalidate such marriages. Rather, it penalised adult males who marry minors and the parents or guardians who encouraged the marriage.
This practice was continued in the Prohibition of Child Marriage Act of 2006. Although the PCMA reinforced the punishment and enforcement mechanisms, it did not overturn the underlying principle that child marriages are voidable at the discretion of the minor; it did not do this by default.
The PCMA criminal liability mostly focuses on adult men and facilitators. As judicially explained in the case of Hardev Singh v. Harpreet Kaur, either of the two parties is a minor, and prosecution usually fails, which reveals structural weaknesses of the statute.
POCSO and Minors Relations
The Protection of Children against Sexual Offences, 2012, is a law that criminalises all forms of sexual acts involving any individual below the age of 18 years, regardless of their consent.
Although formulated as a safeguarding law, POCSO is often abused when dealing with consensual adolescent sex-related cases- especially where one of the parties is slightly more than the age of majority (18-19 years). Families constantly abuse POCSO to bully the older spouse, particularly between inter-caste or inter-religious marriages.
It has led to the criminalisation of consensual relationships, the contrast of which is strong compared to the light treatment under child marriage laws, due to the lack of an exception for close-in-age or Romeo-Juliet.
Colonial Roots: The Phulmoni Case.
The desire not to intervene in the marriage life of minors dates back to colonial India.
In Queen Empress v. Phulmoni Dasi (1891), an 11-year-old girl, Phulmoni Dasi, died because of injuries incurred during marital intercourse. The reason why the husband got away with the conviction is that the act happened during the marriage.
The outrage that followed the case resulted in the enactment of the Age of Consent Act, 1891, which increased the age of consent. That marital status was revealed to serve as a veil of abuse in the case, and the case has left its mark on the jurisprudence of child marriage in the modern era.
Why the Law Avoids Absolute Prohibition.
The protection of the future rights of the minor is one of the reasons. Child marriages would be automatically voided, and the young brides would be socially and economically weak without maintenance, residence and inheritance.
The other issue is the validity of the children born due to such unions. Bringing marriages to a void ab initio has the danger of declaring such children illegitimate and therefore, their rights and social status.
Social and cultural realities have also been cited by the legislators as they accept that child marriage is still common in some societies. This is because a harsh prohibition would only push the vice underground instead of eradicating it.
Lastly, personal laws, especially the Muslim personal law that has in the past been in opposition to full statutory override, also clash.
Reasons This Strategy is Unacceptable.
Adolescents are not mature enough and do not have the agency to enter into a meaningful marriage. Early marriages have a high tendency to lead to premature pregnancy, school dropout, and lifelong economic reliance.
This issue is supported by empirical evidence. According to UNICEF, close to 67 per cent of women who marry before 18 years old are victims of domestic violence, which highlights the way child marriage solidifies gendered vulnerability.
International Commitments
India is a signatory country to the Convention on the Rights of the Child (CRC) and has many times declared its commitment to end child marriage in international forums. Organisations like UNICEF and UN Women have continually pushed for greater protection.
However, at home, India still controls child marriage instead of banning it, and this is in conflict with the changing international human rights regulations.
Conclusion
Child marriage in India not only remains the same because the law does not know the negative consequences of child marriage, but also because it has willingly opted to regulate, as opposed to eliminating it. The legal system that is disseminated through personal legislation, matrimonial legislation, and criminal legislation represents a conservative, compromise-based strategy that does not go as far as pronouncing child marriage invalid. The law aims at creating a balance between social facts and protection by making such marriages voidable and not void, and by restricting criminal liability to a few actors.
But this balancing game has given rise to a highly fragmented regime that has, in many cases, contradicted itself. Although matrimonial laws are reluctant to declare child marriages as unlawful, criminal laws like POCSO are not lenient and will often lead to the criminalisation of relationships between adolescents without safeguarding the minors. The lack of a consistent, unified policy puts minors at a disadvantage not only by lacking any legal clarity regarding their status, but also by being exposed to selective application of the law, as well as exploitation by their own families and the authorities.
The traditional hesitation to enact a complete ban with its legitimacy and sustenance anxieties and social destabilisation reasons is no longer sufficient to explain the ongoing exposure of children. International obligations, facts and evidence regarding early marriage, and constitutional reasons of dignity and autonomy require a complete change. Until child marriage is treated as a substantive right infringement, and not a social anomaly to be remedied, the Indian law will still fail to reach such an ultimate prohibition--and the children will still have to pay the price of such repression.
Share:
Share on
×