The maze of Child Marriage Laws in India
Sai Krishna Muthyanolla
December 1, 2016
As per the 2011 census, more than 12 million persons in India were married before they reached an age of 10. The multitude of personal laws and varied court judgments have made it difficult to tackle the problem of Child Marriages in the country.
The 2011 Census of India revealed that 12 million persons were married before they reached 10 years of age. A staggering 65% of the 12 million being girls. These numbers are shocking considering that India’s first legislation on the subject of minimum age of marriage was drafted in 1929 called the Sarda Act or the Child Marriage Restraint Act. According to the original act, the minimum age of marriage for girls was 15 and 18 for boys.
Today, more than 80 years after that legislation, there is a lack of consensus in openly accepting that child marriages legitimize human rights violations. The lack of comprehensive legal reform to curb the problem is an outcome of low political and social priority that is associated with children in India. India ratified the United Nations Convention on the rights of the child in 1989 but India’s child protection laws remain open ended and isolated from each other.
The Child Marriage Restraint Act, 1929
The aim of the 1929 legislation was an attempt to prevent the solemnizing of child marriages. According to the International Journal of Humanities and Social Science Invention, “Under this Act, a “child‟ means a person who, if a male has not completed 21 years of age, and if female has not completed 18 years of age‟. Child marriage means a marriage to which either of the contracting parties is child. This Act, prescribed 15 as the minimum age for girls, and 18 for boys, but such was the impact of the social reality and notions that the child marriage were made neither. Child Restraint Act was amended in 1978 to increase the minimum age of marriage to 18 for girls and 21 for boys.
The Child Marriage Restraint Act 1929 was a dead legislation that largely existed on paper. Initially, it was the disapproval and allegations of cultural interference by orthodox communities in India that put the cause on the back burner of the government. But even after progressive social reform and national independence, the intent remained only on paper.
Even though the Act insists that persons performing the marriage and adult male involved in the marriage are punishable with a fine of Rs.1000 or simple imprisonment, child marriage was not voidable and once performed was valid. Another limitation of the Act was its inability to take cognizance of an offence under this Act after the expiry of one year from the date on which it is alleges to have been committed.
The Prohibition of Child Marriage Act (POCM), 2006
It took India 76 years to repeal The Child Marriage Restraint Act for its legislative and legal shortcomings. The Act was replaced with the Prohibition of Child Marriage Act.
According to handbook released by the Ministry of Women and Child Development, the contents of The Prohibition of Child Marriage Act can be categorized into three main actionable goals – prevention, protection and prosecution.
The Act defined Child as person below 18 years of age for girls and 21 years of age for boys. Some of the main changes in this act from its previous legislation is extending the length of punishment to the offenders to two years of imprisonment and fine of 1 lakh rupees or both. The Act requires that incase of the marriage becoming void, money and gift transactions need to be returned. The Act also assures the protection of the female child after a void marriage by requiring to be provided financially till she remarries.
The need for a rights based approach to end child marriages
The current legislation like its predecessor does not automatically declare a child marriage void. It specifies that only if the child is taken away from their lawful guardian by enticement, force or deceitful manner, or is sold or trafficked for the purpose of marriage can the marriage be void. The other acceptable scenario to make a child marriage void is if a court injunction before the marriage itself was violated.
It is important for India to integrate child rights as the core issue in the fight against child marriages. This is not only about forced marriages, it about children entering wedlock without any prior understanding of the relationship as well as the consequences. It is about children held against their will. It is about denying children their basic right to life, education and development.
According to Office of the United Nations High Commissioner on Human Rights (OHCHR) report on child marriages in India, the law creates confusion by declaring some marriages void and some others voidable. Marriage of a minor solemnized by use of force, fraud, deception, enticement, selling and buying or trafficking is a void marriage, while all other child marriages are voidable at the option of the parties to the marriage and hence valid marriages until they are nullified by the court. If the law does not attribute consent to a child, it must render all child marriages void, as all child marriages then become marriages that have taken place either through some form of coercion or use of fraud, trafficking and such other illegal means, or by influencing the mind of the child.
In 2012, a Jaipur based NGO Sarathi Trust facilitated India’s first known child marriage annulment. Even though The Child Marriage Prohibition Act allows annulment of marriage, this is only possible by approaching the courts by either party in the marriage. In majority of the cases in India, both the parties in child marriage are minor children who might not be able to navigate themselves to approach law enforcement authorities or courts directly. A large number of children feel intimidated by lack of education and girls feel unsafe by reporting incidents against their married home or parents. The 2011 Census of India also indicated that girls were disproportionately effected by child marriage and that eight in ten illiterate children who were married were also girls.
One of the top reasons girls are not sent to school after puberty is because of fears regarding sexual safety and violence in spaces outside of home. It is very critical to create safe spaces for them to study, meet their peers and understands their sexual and reproductive rights. Even if a child is married before she turns 10, she remains at her parent’s home till she reaches puberty. These safe spaces will allow her to understand the consequences of her moving to a married home and might also give her strength and courage to exercise her rights to annul the marriage.
According to UNICEF, the best strategy to delay marriage for children is to retain them in school longer. According to Indian law, a child is entitled to free and compulsory education only till 14 years of age and many children from economically weak backgrounds drop out after that. It will be a step in the right direction if Right to Education is extended till all children are 18 years of age. This will bridge the gap between legal age for marriage and reduce to financial burden of parents to facilitate children to continue their education.
Social Incentives & Schemes
Government of India’s position on child marriages already addresses it as a social, cultural and economic issue. Over the years, government has drafted created several schemes to encourage girl child education and development, the most popular of them being conditional cash transfer schemes to provide support for families with girls. Even though this kind of scheme is an excellent social incentive, implementation has been ineffective due to ground capacities. Planning Commission and United Nations Population Fund- India commissioned a study in 2010 to understand the feasibility of these schemes. According to the report, a major roadblock is the lack of co-ordination among government departments and lack of ground resources to monitor such schemes.
Many initiatives by Indian governments past and present have been undertaken to support the development of the girl child and against female infanticide but no single program that works directly with the goal of eliminating the practice of child marriage. Even though female infanticide, education, domestic violence are important aspects and have an indirect link to child marriages, they do not address the issue directly.
Establishing link between trafficking, slavery and child marriage
According to CRY (Child Rights and You), at least 180 children go missing in India every day, including 22 from the nation’s capital. The total number of untraced children in 2015 was 62,988 as against 34,244 in the year 2013 as per government data. While a large number of children are untraced, it is likely that many more have not even been reported missing by their parents and guardians.
International agencies have multiple times established the direct link between missing children and child trafficking. Missing children could be abducted, kidnapped, sold by known acquaintances to agents who in turn hold them captive and channel them to brothels, sell them into forced marriages to older partners who sexually exploit and abuse them. A large number of trafficked children are girls who are sold into forced marriages to places within India where sex ratios are dwindling.
Aidan McQuade of Anti-Slavery International says “to define when child marriage becomes slavery, we propose that one or more of the three indicators are present: when the ability to refuse, leave or end a marriage is denied; when a child spouse is exploited within the marriage or denied freedom of choice on her personal matters; and when a child spouse is subject to rape and violence without recourse to law or society for protection.”
India’s Immoral Trafficking and Prevention Act interprets exploitation during trafficking at the minimum as of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. But the Act implicitly does not state anything about coerced unions like child marriages or the slavery and trafficking as elements of that outcome.
Gaps and Challenges
Even though India has drafted many critical laws and legislations for children, the laws essentially do not always compound each other in a real scenario because they contradict each other or have different definitions. For example, Protection of Children from Sexual Offences Act, 2012 that defines any sexual act with a child below 18 years of age as an offence and Prohibition of Child Marriage Act that prohibits child marriages but makes them valid once solemnized. In which case, it is likely that minor children have no choice but to enter a sexual union once married, and sex with a child willing or unwilling becomes legal.  Such contradictions need to be corrected and a uniform stance needs to be taken across all laws pertaining to children in order to protect their rights and life.  Power to override personal and religious laws in this regard needs to be integrated into the legal framework.
India also needs to move from its traditional stance of considering sex trafficking alone as the core issue and include other possible forms of trafficking like domestic slavery and child marriages. It is important for the lawmakers to consider children as a separate entity and draft provisions for them. In spite of the Immoral Trafficking and Prevention Act stating that all forms of sexual exploitation are a crime, if a child is sexually exploited and coerced within a marriage, the legal validity of marriage protects the perpetuators.  It is therefore very important to declare all child marriages as void regardless if a party to the marriage has asked for an annulment or not.
While the Prohibition of Child Marriage Act governs child marriage in India, the legal system also takes into account a gamut of personal laws. Under Prohibition of Child Marriage Act, parents, guardians, religious and community leaders promoting the marriage are punishable but under the Hindu Marriage Act, the punishment applies only to the couple themselves and no penalty to parents, guardians or others. According to Muslim Personal Law, puberty, presumed at 15 years is considered minimum age for marriage, where as the Child Marriage Prohibition Act clearly states that all marriages before girls turn 18 and boys turn 21 are punishable under law. Under Jewish Personal law, minimum age of marriage for girls is presumed at 12 years of age. All marriages after 12 are considered legal and valid. Inconsistencies between the personal laws and the Prohibition of Child Marriage Act has caused complications and varied judgments by courts.  There is an urgent need to override all personal laws in the case of child marriage and declare the Prohibition of Child Marriage Act supersedes all other laws.
Integrating all the existing child laws in India under one umbrella in a way that they are consistent with each other and compound each other when put together will be an important step to tackle the problem of child marriages.