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SYNOPSIS RESEARCH TITLE: A Critical Analysis of Child Marriage law in India with special reference to Hindu law. HYPOTHESIS: Child Marriages in India is a Valid Marriage.

STATEMENT OF PROBLEM: Choti si umariya main parnanaya o babosa, kain main tharoo kario kusoor. -Oh father why had you given me off in the marriage at such a tender age, for what sin did I commit These lines from a song sung during marriages in Rajasthan best put forth the agony of a childs heart that is undergoing a marriage ceremony. These lines itself symbolize the mixed pain of leaving the fathers house and at the same time the anguish as to why was she being married off at such a tender age. Such situation is unprecedented and the inner pain unimaginable. Prevention of Child Marriages is imperative not merely from the child and human rights perspective but also in the interest of meeting several national goals and Millennium Development Goals. The word Child Marriage is itself contradictory in itself as one would wonder how marriage and child could go together. But it is a sad reality that even to this day Child Marriages are being solemnized much to the chagrin of laws restraining such marriages1. Now that the legislature has come up with the Prohibition of Child Marriage Act, 2006 which had replaced the Child Marriage Restraint Act 1929. It becomes much more imperative to revisit the various laws passed by the legislature in the past and contextualizing it with respect to the new act intended to prohibit the practice of child marriage. This research paper basically deals with the proposed amendments in the new act and drawing a comparison with earlier laws as well as to analyze and predict the consequences of the new law on the Child Marriage. The approach here for the purpose of our study is critical and in some parts analytical supplemented by case laws. The Hindu Marriage Act,1955 lays down minimum age of eighteen for bride and twenty one for bridegroom as a condition for marriage ,however this has not been given as a ground for void or voidable marriage if such condition is violated. The only remedy provided under Hindu Marriage Act 1955 is under section 18. Hence after perusal of Child Marriage Restraint Act,1928 and Hindu Marriage Act, 1955 it becomes clear that the validity of the

Child Marriage Restraint Act, 1929

Electronic copy available at: http://ssrn.com/abstract=1998189

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marriage is not affected in any way even if the marriage was in contravention of minimum age prescribed. When the Hindu Marriage Act,1955 brought out some revolutionary changes then it was argued that Personal law in case of citizens of this country is essentially secular in character, and cannot be treated as a part of Hindu religion properly so called. Reformers also urged that Hindu law was never Sanatana or static and had undergone changes from time to time2. A question arises here that if that was the intention why no provision giving the party the option to opt out of marriage by getting it declared void was introduced when the same was provided for in the proposed Hindu Code Bill, 1948. Regarding the age of consent the Indian Penal Code,1860 has recognized the minimum marriageable age for a girl to be 15 years3. However at the same time marriageable age as prescribed under the Child Marriage Restraint Act,1929 is 18 years. Here it is clear that there is an ambiguity and contradiction as regards the age of consent in the Hindu Marraige Act, 1955 and the Indian Penal Code,1860. Through this research I want to find out the dual approach of Indian Law in regarding Child Marriage which declares such marraige to be voidable but in other sense such marriages are held to be a valid marraige. I had analysed the main legal issues related to child marraige and tried to find out how such marriages are held to be a valid marriage. SCOPE OF STUDY: Child Marriage is one of the worst forms of denials of child rights. Still today in many parts of India such as Rajasthan, Madhya Pradesh, Uttar Pradesh, Bihar and West Bengal childrens are forced everyday into a relationship, of which they have only the faintest knowledge and for which they are not at all prepared4. To push two physiologically and emotionally ill-prepared individuals into marriage is a compassionless way of looking at relationships. Through this research paper I am trying to investigate and analyse the reasons for the failure of the Indian legal system to prevent this practice and the inadequacy legal machinery in this regard and explored the Child Marriage issues and whether they can be abolished just by enacting new laws. The central area of concern of this research is as follows: 1. The Status of Child Marriage in India and the reasons behind it. 2. A study of the loopholes of the Child Marriage Law in India. Further in order to analyse the Child Marriage Law in India with special reference to Hindu Law, various questions are required to be answered, such as: 1. Why a Child Marriage exist in India? 2. Do the Hindu law permits Child Marriage ?
2

The 59th LawCommission Report; February 2008 Proviso to section 375 of IPC states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. Child Marriages Must Stop, www.unicef.org/newsline/01pr21.html

Electronic copy available at: http://ssrn.com/abstract=1998189

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3. If a Child Marriage gets solemnised then whether such marriage can be declared void or invalid by the Child Marriage law in India? 4. Why does the Child Marriage declare a Child Marriage to be voidable and why not void? 5. Which is the area of conflict between Child Marriage Law and Other personal Laws in India? 6. Does the Child Marriage Law actually prohibits Child Marriage in India? 7. Why has the legal system failed to prevent this practice? What are the loopholes of the Child Marriage Law in India. Judgements of various Indian cases are well scrutinized and cited while understanding the issue relating to Child Marriage in India and their legal status. For the purpose of this research due attention have been paid by me in exploring the historical perspective of Child Marriages and tried to investigate the socio-economic factors responsible for child marriages in India. Meanwhile I felt it inevitable to go through the history of legislation of the Child Marriage Law in India Few quantitative datas relating to Child Marriages are also cited by me in this research paper to show that Child Marriage are still being solemnised in many parts of India inspite of the presence of the law prohibiting Child Marriage. Further, after a close analysis of the Child Marriage Law in India, I have evolved out certain limitations pertaining to such law and which may the cause of inabsolute eradication of Child Marriages in India. FOCUS OF THE STUDY: My research mandate is to critically analyse the Child Marriage Law in India with special reference to Hindu law, so accordingly hereinafter I have chapterised the details of my analysis. Moreover, I feel it is pertinent to mention that the contents of detailed analysis are not all exhaustive and are subjected to modification, edition or deletionwith the prior intimation to the research supervisor. I. INTRODUCTION. II. CONCEPT AND VARIOUS PERSPECTIVE OF CHILD MARRAIGE. A. Concept Of Child Marriage. B. History of Child Marriage. C. Quantitative Data Of Child Marriage In India. D. Socio-economic Cause of Child Marriage. E. Consequences Of Child Marraige. III. The HINDU MARRIAGE LAW IN INDIA. A.The Concept Of Void And Voidable Marriage Under The Hindu Marriage Law In India. B. Prescribed Age For Marriage Under Hindu law. C. Conditions For Valid Marriage Under Hindu Marriage Act,1955. IV. CHILD MARRIAGE LAW IN INDIA AN ANALYSIS. A. The Child Marriage Restraint Act,1929. 1. Legislative History Of the Child Marriage Restraint Act,1929. 2. The Objective And Reasons Of The Act.

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3. The Salient Provisions Of The Act. B. The Probition Of Child Marriage Act,2006. 1. The Objective And Reasons Of The Act 2. The Salient Provisions Of The Act. V. The LEGAL STATUS OF CHILD MARRIAGES IN INDIA. 1.Position Under Child Marriage Restraint Act,1929. 2. Position Under Prohibition Of Child Marriage Act,2006. VI. CONFLICT OF CHILD MARRAIGE LAW IN INDIA WITH OTHER STATUTES IN INIA VII. AN ANALYSIS OF THE JUDICIAL TRENDS IN INIDA REGARDING CHILD MARRAIGES VIII.THE LIMITATIONS OR LOOPHOLES OF THE CHILD MARRAIGE LAW IN INDIA IX. CONCLUSIONS AND SUGGESTIONS Methodology To Be Adopted: For the purpose of conducting the research ,the findings of the materials from the primary and secondary sources are all library based so the methodology that I adopted can be termed as a Doctrinal Method LITERATURE REVIEW: To conduct this research , at first instance I am required to undergo a preliminary research by going through various literatures, statutory acts relating Child Marriage. I feel very proud to say that KIIT Law School Library has enough collections of literature on Child Marriage which made me able to have a clear idea about various perspectives of Child Marriage and to understand the present legal status of a marriage between a male child and a female child. There are numerous journals and periodicals in the library to understand the recent trend of judiciary in dealing with issues as to Child Marriage. I am also lucky enough to have an opportunity of accessing Westlaw and Lexis Nexis through internet to go through various articles on Child Marriages. A details of the literature and the case laws which were used by me as primary and secondary sources are mentioned in the Bibliography BIBLIOGRAPHY Primary Sources Constitutional Sources 1. 59th Law Commission Report. 2. Law Commission Report, report No.205 Feb. 2008. 3. National Commission for Women, Annual Report 1995-96.

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International Law Sources 1. Universal Declaration of Human Rights,1948 2. Covenent Of All Forms Of Discrimination Against Women,1979. Statutory Sources: 1. The Child Marriage Restraint Act,1929. 2. The Hindu Code Bill,1948. 3.. The Hindu Marriage Act, 1955 4. The Prohibition of Child Marriage Act,2006 Judicial Decisions: 1.Venkatacharyula v Rangacharyula I.L.R. 189 1 Mad.,3 16. 2.Munshi Ram v. Emperor A.I.R. 1 936 Allahabad,111 3.Moti v. Beni AIR 1936 Allahabad, 852 4.Birupnkshya Das v. Khujubehare A.I.R. 1961 Orissa.,104. 5.Kalawati v. Devi Ram A.1.R 1961 H.P., 1 6.Naumi v. Narotam A.1.R 1963 H.P., 15. 7.Premi v. Dayararn A.l .R. 1965 H.P. ,15. 8.Ma Hari v. Director of Consolidation A.I.R. 1969 All. ,623 9.Buda Sahu v. Laburani Sahuni I.L.R. 1970 Cuttack,1215 10.Buda Sahu v. Laburani Sahuni P.L.R. 1970,102 11.Mohindev Kaur v. Major Singh A.1.R 1972 P & H,184 12.Gindan v. Barila A.I.R. 1976 M.P.,83 13.Venkata Ramana v.State A .I.R 1977 A.P.,43. 14.D. Pradhan v. Bengabali Dei A.I.R. 1977 Ori.. 36. Secondary Sources Books Refered: 1. A.L Basham in his book ,The Wonder That Was India. 2. State Consultation on Child Marriages in West Bengal, Background Note, Unicef , November 2009. 3. Chandra, Sudhir, Enslaved Daughters, Oxford University Press. 4. Sarkar, Tanika, A Prehistory of Rights:The Age of Consent Debate in Colonial Bengal, Feminist Studies 2000. 5. Auboyer, Jeannine, Daily Life in Ancient India: from 200 BC to 700 AD.London: Phoenix Press, 2002. 6. Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001). 7. Barua, A., Heman Apte, Pradeep Kumar, Care and Support of Unmarried Adolescent Girls in Rajasthan,Economic and Political Weekly,Vol XLII No44 November 3-9, 2007.

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8. Chatterji, Jyotsna, Child Marriage, paper presented at India Social Forum, November 2006, New Delhi. 9. Somerset, Carron, Early Marriage: Whose Right to Choose? Forum on Marriage and the Rights of Women and Children, London (2000). 10. Sagade, Jaya, Child Marriage in India, Oxford University Press, 2005. 11. Paras Diwan: Hindu Law; 2nd Edition. 12. Manu Smriti, The constitution of Vedic Society. Websites Visited: 1. UNICEF Innocenti Research Centre www.unicef-irc.org/publications/pdf/digest7e 2. http://www.unicef.org/sowc09/report/report.php 3.Child Marriage,http://www.unicef.org/protection/files/Child_Marriage.pdf. 4.Child Marriages Must Stop, www.unicef.org/newsline/01pr21.htm 5.The Challenge, http://www.childinfo.org/marriage.html. 6. International Center for Research on Women (ICRW) Policy Advisory on Child Marriage, <www.icrw.org/docs/childmarriage0803.pdf 7. Taken from UNICEF based website,<www.childinfo.org/areas/childmarriage. Dictionaries & Law Lexicons Referred: 1. The Pocket Oxford Dictionary, Ed. By FG & HW Fowler, 8th Ed., Oxford University Press. 2. Blacks Law Dictionaries, 7th Ed., Brayan A Garner, West Group, 1999.

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I. INTRODUCTION

Child Marraige is considered to be a violation of human rights, according to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls5.In many parts of the world especially underdeveloped countries parents give consent to child marraiges hoping that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families, the daughter is married off at an young age to relieve the family from her economic responsibilities. Many factors are responsible for this practice, the most common ones are poverty, protection of girls, family honour and the provision of stability during unstable social periods, lack of oppurtunities for girls, lack of awareness about adverse health consequences another big problem is the lack of awareness of law and also inadequate implementation of the existing laws. It is seen that Child Marriages are caused mainly due to the tyranny of poverty and due to lack of education, so it is no coincidence that the underdeveloped countries of Asia, Africa, Middle East have higher rates of Child Marriage compared to the other parts of the world. Statistics show that the majority of girls in Asia, Africa and Latin America are married by the age of 146. It has been seen that the practice of child marriage is practiced more in countries which have high poverty rates, birth rates and death rates, higher levels of underdevelopment and lack of education. Unfortunately marriage before attaining adulthood is a reality for many women, according to UNICEF over 64 million women aged 2024 years were married or in union before the age of 187. Child marriage has many harmful consequences which include lack of freedom, decreased opportunities of education. Child marriage can also result in enslavement, sexual exploitation and violence against the victims. Not only that, a child bride who is not physically or psychologically prepared for conjugal life is also exposed to serious health risks such as early unwanted pregnancy which puts a young girl to great risks, increased risks of maternal and infant mortality, increased vulnerability to HIV and other sexually transmitted diseases. Apart from affecting the health of a girl, Child Marriage has other consequences too. It usually takes away of educational opportunities among girls which limits their opportunities for employment and income generation. In terms of development, child marriage prevents women from participating fully in the life of the family, the community and society and thus results in social isolation. Child marriage prevents women as well as the society from realising their full potential. It has a negative impact on the position of women in the society and also affects the potential contribution of women to the society. The society bears a phenomenal cost by allowing the continuation of the practice of child marriage. The government and the civil society should play a role to develop and implement systems to prevent or discourage this practice. The existing world order, often
5 6

Child Marriage,http://www.unicef.org/protection/files/Child_Marriage.pdf. Child Marriages Must Stop, www.unicef.org/newsline/01pr21.htm 7 The Challenge, http://www.childinfo.org/marriage.html.

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based on injustice and unfair economic opportunities, is to a great extent, responsible for the discriminatory practices against women. Child Marriage is a very common practice in India, especially amongst the uneducated sections of the society, which actually forms a large chunk of the population. In fact 40% of the worlds child marriages occur in India. According to UNICEFs State of the Worlds Children-2009 report8 , 47% of India's women aged 20-24 were married before the legal age of 18, with 56% in rural area. The government has taken several steps to eradicate this practice, however it is still being practiced all over the country. There are several legislations on child marriage such as the Child Marriage Restraint Act,1929 and the Prohibition of Child Marriage Act, 2006. However there are certain flaws in these legislations, and also in the implementation of these laws. In the later chapters the legal issues related to child marriages in India have been discussed extensively. While analysing child marriages in India it can be seen that it is a problem which is affecting the society in many ways. There are many social, religious, cultural and legal barriers in prohibiting the harmful practice of Child Marriage in India.

http://www.unicef.org/sowc09/report/report.php

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II. CONCEPT AND VARIOUS PERSPECTIVE OF CHILD MARRAIGE.

A. Concept Of Child Marriage Birth, marriage and death are the standard trio of key events in most peoples lives. But only one marriage is a matter of choice. The right to exercise that choice was recognized as a principle of law even in Roman times and has long been established in international human rights instruments. Yet many girls, and a smaller number of boys, enter marriage without any chance of exercising their right to choose. Some are forced into marriage at a very early age. Others are simply too young to make an informed decision about their marriage partner or about the implications of marriage itself. They may have given what passes for consent in the eyes of custom or the law, but in reality, consent to their binding union has been made by others on their behalf 9. The assumption is that once a girl is married, she has become a woman even if she is only 12. Equally, where a boy is made to marry, he is now a man and must put away childish things. While the age of marriage is generally on the rise, early marriage marriage of children and adolescents below the age of 18 is still widely practised and this practice is known as Child Marriage. Child/Early Marriage refers to any marriage of a child younger than 18 years old, in accordance to Article 1 of the Convention on the Right of the Child. While child marriage affects both sexes, girls are disproportionately affected as they are the majority of the victims. Their overall development is compromised, leaving them socially isolated with little education, skills and opportunities for employment and self-realisation. This leaves child brides more vulnerable to poverty, a consequence of child marriage as well as a cause10. While Child Marriage takes many different forms and has various causes, one issue is paramount. Whether it happens to a girl or a boy, early marriage is a violation of human rights. The right to free and full consent to a marriage is recognized in the 1948 Universal Declaration of Human Rights (UDHR) and in many subsequent human rights instruments consent that cannot be free and full when at least one partner is very immature. For both girls and boys, early marriage has profound physical, intellectual, psychological and emotional impacts, cutting off educational opportunity and chances of personal growth. For girls, in addition, it will almost certainly mean premature pregnancy and childbearing, and is likely to lead to a lifetime of domestic and sexual subservience over which they have no control11.

International Center for Research on Women (ICRW) Policy Advisory on Child Marriage, <www.icrw.org/docs/childmarriage0803.pdf >, visited on 29 November 2011. 10 Child Marriage,http://www.unicef.org/protection/files/Child_Marriage.pdf. visited on 29th November 2011
11

UNICEF Innocenti Research Centre www.unicef-irc.org/publications/pdf/digest7e

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B. History of Child Marriage. As per the Hindu philosophy12, marriage is not just a process of coming together of the individuals but it is also a holy bond and a commitment which lasts a lifetime. Even the holy scriptures of the Vedas the sacred Hindu texts suggest that an individual should enter the phase of Grihasta " household" after his or her student life. Thus, it can be said that marriage is almost a mandatory custom in the life of all the Hindus. According to the philosophy of the Vedas, there is a restriction on child marriage. The age of marriage for a boy is 25 years or more and that of a girl is 18 years or more. From the middle Age to the present day13 the custom of child marriage against Vedas persists in India.There are many reasons to believe that this custom actually originated in the medieval time when the political climate was unstable and law and order was not yet fixed on the national level. Arbitrary powers were concentrated in the hands of a hierarchy led by a despotic monarch. The predatory Sarasenic feudal lords and princelings of Sarasenic origins who ruled all over India in the middle ages were a source of a constant threat. Hence parents would seek to get over with the responsibilities of their daughters by getting them married very young. However, from Middle Age14, as states and government developed, the political system elaborated and modified the Indian society gradually. It transformed the lifestyle and opinion of it's people from a simple to more complex form, restricting significantly the notion of liberty. Women lost their rights and had to obey rules and respect the code be behaviour. They were now subject to family discipline and the honour of their clan. Since young women were considered irresponsible and irrational in love, parents married them early before they got caught into any scandal. Though, age at which the girl was to be married differed and it was rare for girls younger than 12 to be married in antiquity. Nevertheless, girl brides became younger towards the Medieval period, and it became increasingly common for girls as young as 6 or 8 to be married as Indian society. The prime concern of negotiating the marriage was to find out the compatibility between the two families. It was believed during those times that if two persons know each other right from childhood it enhanced understanding and affection. Hence parents decided on the marriages of their children at a very early age although the daughter stayed with her parents until she attained the age of puberty.

Auboyer, Jeannine, Daily Life in Ancient India: from 200 BC to 700 AD.London: Phoenix Press, 2002. Google Books. 13 Supra 8,P-8. 14 Supra 8,P-8.

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C. Quantitative Data Of Child Marriage In India. Child Marriages continue to be a fairly widespread social evil in India. In a study carried out between the years 1998 to 1999 on women aged15-19 it was found that 33.8% were currently married or in a union15. This showed that child marriage was far more prevalent amongst girls and this highlighted the gender dimension of the problem. The National Family Health Survey of 2005- 2006 (NFHS-3) carried out in twenty-nine states confirmed that 45% of women currently aged 20-24 years were married before the age of eighteen years. The percentage was much higher in rural areas (58.5%) than in urban areas (27.9%) and exceeded 50% in eight states16. The percentage of women aged 20-24, married by the time they are 18, stood at 61.2% in Jharkhand followed by 60.3 % in Bihar, 57.1% in Rajasthan, 54.7% in AP, and 53% in MP, UP and West Bengal. The NFHS-3 findings further revealed that 16% of women aged 15-19 were already mothers or pregnant at the time of the survey. It was also found that more than half of Indian women were married before the legal minimum age of 18 compared to 16% of men aged 20-49 who were married by age 18. Though NFHS-3 did not compile data on girls who were married below the age of 15, the 2001 Census of India had revealed that 300,000 girls under 15 had given birth to at least one child. Further in a survey conducted by the Government of Rajasthan in 1993 it was found that 56% girls had been forced into marriage before the age of 15 and of these 7% were married before they were 10.6 A second survey conducted in 1998 in the State of MP found that 14 % girls were married between the ages of 10 and 14. 7 In 2006 the Hindustan Times reported that 57% of girls in India are married off before they are 18 as per the International Centre for Research on Women17. D. Socio-economic Cause of Child Marriage. Child Marriage in India has been practiced for centuries, with children married off before their physical and mental maturity. The problem of Child Marriage in India remains rooted in a complex matrix of religious traditions, social practices, economic factors and deeply rooted prejudices. Regardless of its roots, child marriage constitutes a gross violation of human rights, leaving physical, psychological and emotional scars for life. Sexual activity starts soon after marriage, and pregnancy and child birth at an early age can lead to maternal as well as infant mortality. Moreover, women who marry younger are more likely to experience domestic violence within the home18. The phenomenon of Child Marriage can be attributed to a variety of reasons19. The chief amongst these reasons is poverty and culture, tradition and values based on patriarchal norms. These norms do not take into account that in actuality, Child Marriage is a violation of
Taken from UNICEF based website,<www.childinfo.org/areas/childmarriage/>, visited on November 2007 International Center for Research on Women (ICRW) Policy Advisory on Child Marriage, <www.icrw.org/docs/childmarriage0803.pdf >, visited on November 2011 17 th 59 Report of Law Commission o February 2008. 18 http://middleeast.about.com/od/humanrightsdemocracy/a/child-brides.htm 19 Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001), p.10
16 15

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human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty. Young married girls are a unique, though often invisible, group. Required to perform heavy amounts of domestic work, under pressure to demonstrate fertility, and responsible for raising children while still children themselves, married girls and child mothers face constrained decision making and reduced life choices. Boys are also affected by child marriage but the issue impacts girls in far larger numbers and with more intensity. Where a girl lives with a man and takes on the role of caregiver for him, the assumption is often that she has become an adult woman, even if she has not yet reached the age of 1820. The marriage of a minor girl often takes place because of the poverty and indebtedness of her family. Dowry becomes an additional reason, which weighs even more heavily on poorer families. The general demand for younger brides also creates an incentive for these families to marry the girl child as early as possible to avoid high dowry payments for older girls. The girl in our patriarchal set up is believed to be parki thepan (somebodys property) and a burden. These beliefs lead parents to marry the girl child. In doing so, they are of course relieving themselves of the burden of looking after the child. The girls are considered to be a liability as they are not seen as individuals who can contribute productively to the family. Unfortunately, the patriarchal mindset is so strong that the girl has no say in decision making. Texts like Manu Smirti which state21 that the father or the brother, who has not married his daughter or the sister who has attained puberty will go to hell are sometimes quoted to justify Child Marriage. Child Marriages are also an easy way out for parents who want their daughters to obey and accept their choice of a husband for them. There is also a belief that Child Marriage is a protection for the girls against unwanted masculine attention or promiscuity. In a society which puts a high premium on the patriarchal values of virginity and chastity of girls girls are married off as soon as possible. Furthermore securing the girl economical economically and socially for the future has been put forth as a reason for early marriage22. The institution of marriage in communities or societies can be used to serve or strengthen economic and social ties between different families and even communities. Also a young girl may be offered to a family in order to improve the financial and social standing of the girls family23. Other reasons that have been listed for the high prevalence of child marriages in India are lack of education and knowledge, shortcomings in the law, and the lack of will and action on part of the administration24.
20 21

Taken from UNICEF based website, <www.childinfo.org/areas/childmarriage/>, visited on November 2007 Barua, A., Heman Apte, Pradeep Kumar, Care and Support of Unmarried Adolescent Girls in Rajasthan,Economic and Political Weekly, Vol. XLII No44 November 3-9, 2007, p.54
22 23

Chatterji, Jyotsna, Child Marriage, paper presented at India Social Forum, November 2006, New Delhi Supra 16. 24 Supra 15

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E. Consequences Of Child Marriages. As stated above, Child Marriage is a grave violation of the rights of the child depriving her of opportunities and facilities to develop in a healthy manner to obtain education and to lead a life of freedom and dignity. It deprives the young girl of capabilities, opportunities and decision-making powers and stands in the way of her social and personal development. Young brides face the risk of sexual and reproductive ill health because of their exposure to early sexual activity and pregnancy. Complications and mortality are common during childbirth for young pregnant girls. Girls who come from poor backgrounds and who are often married at an early age have little or no access to health care services. Risks associated with young pregnancy and childbearing include an increased risk of premature labour, complications during delivery, low birthweight, and a higher chance that the newborn will not survive25. Young mothers under age 15 are five times more likely to die than women in their twenties due to complications including haemorrhage, sepsis, preeclampsia/ eclampsia and obstructed labour26. Maternal mortality amongst adolescent girls is estimated to be two to five times higher than adult women27. Maternal mortality amongst girls aged 15-19 years is about three times higher28. Young women also suffer from a high risk of maternal morbidity. It has been found that for every woman who dies in childbirth, thirty more suffer injuries, infections and disabilities, which usually go untreated and some of which are lifelong29. Research further indicates that the babies of mothers below the age of 18 tend to have higher rates of child morbidity and mortality. Infants of mothers aged younger than 18 years have a 60 per cent greater chance of dying in the first year of life than those of mothers aged 19 years or older [UNICEF 2007]. Babies are born premature or underweight or young mothers simply lack parenting skills and decision-making powers30. Secondly, young girls face the risk of infection with sexually transmitted diseases including HIV. Young brides who run away from early marriages may end up as sex workers or eventually resort to use sex work as a way of earning additional income. Young brides also run the risk of catching diseases from their respective spouses, as older husbands often engage in sexual relations with other women outside the marriage. Young married girls do not have bargaining power in the marriage and therefore cannot negotiate safe sex and are deemed vulnerable. It has also been found that young girls are physiologically more prone to contracting HIV/AIDS, as her vagina is not well lined with protective cells and her cervix may be more easily eroded. An analysis of the HIV epidemic shows31 that the prevalence of HIV infection is highest in women aged 1524 and peaks in men between five to ten years later. Women also undergo sexual violence in marriage and young girls are particularly vulnerable. In a study
Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no.7 (2001), p.10 The 59th Law Commission Report February 2008. 27 Supra 20 28 Supra 20 29 Supra 19. 30 Supra 20. 31 Somerset, Carron, Early Marriage: Whose Right to Choose? Forum on Marriage and the Rights of Women and Children, London (2000), p.21
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carried out in Calcutta in 1997 where half the women interviewed were married at or below the age of 15, with the youngest being married at 7 years old, findings revealed that this age group had one of the highest rates of vulnerability to sexual violence in marriage, second only to those whose dowry had not been paid. The women interviewed said they had sexual intercourse before menstruation had started, that sex was early and very painful, and many still continued to be forced into sexual activity by their husbands. 25Additionally the young girls had made their husbands aware of their unwillingness to have sex or of pain during sex, but in 80 per cent of these cases the rapes continued. As husbands are often much older than their brides, girl brides are likely to be widowed at an early age. A child bride who is widowed can suffer discrimination including loss of status and they are often denied property rights, and other rights. Child widows have little or no education or other skills to be able to take care of themselves. At a 1994 Conference in Bangalore, India, participants told of being married at five and six years old, widowed a few years later, and rejected by their in-laws and their own families. These widows are, quite simply, left with no resources and nowhere to go32. Young girls who are married early usually stop going to school. Giving an education to a girl is perceived by both the girls and boys families unnecessary for becoming a good wife or a mother, if not a deterrent. Those who have a choice are eventually forced to drop out of school because they are forced to assume the responsibility of doing domestic chores and starting a family etc. The loss of adolescence, the forced sexual relations, and the denial of freedom and personal development attendant on early marriage have profound psychosocial and emotional consequences. Researchers on Child Marriage in Rajasthan and Madhya Pradesh state that young married girls suffered more than boys due to the abovementioned consequences of Child Marriage33.

III. The HINDU MARRIAGE LAW IN INDIA.

32 33

The 59 Law Commission Report February 2008. Supra 26.

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The Hindu Marriage Act 1955 was enacted by the Indian Parliament in the year 1955 with the intention of regulating the personal life among the Hindus, especially their institution of marriage, its legitimacy, conditions for divorce and applicability etc. There are many significant features in the provisions of the Act that lay down the very foundation of marriage. The basic essence of the act is that it appropriately recognizes the religious ethics and morals of the Hindus. Therefore, the Hindu Marriage Act is applicable to all Hindus, taking within its ambit various offshoots like followers of Prarthana, Arya and Brahmo Samajas and Sikhs, Buddhists and Jains. A. The Concept Of Void And Voidable Marriage Under The Hindu Marriage Law In India. Concept of Void Marriage: A Void Marriage34 is one that will be regarded by the every court in any case in which the existence of marriage is in issue as having not been taken place and can be so treated by both the parties to it without any necessity of any decree annulling it. A decree is nonetheless advisable. It can be obtained by either party to marriage or by person having sufficient interest in it. A Void Marriage is no marriage. It is a marriage which exist from its beginning. It is called a marriage because two persons have undergone the ceremonies of marriage. Since they absolutely lack capacity to marry,they cannot, by just undergoing ceremonies, become husband and wife in the eyes of law35. For instance, if a brother and sister perform all the ceremonies of marriage and start living as man and wife, that will not make then husband and wife in the eyes of law. So in case of void marriage parties have no status of husband and wife . Thus, if one of them or both of them take another spouse the offense of bigamy will not be committed. For instance , A and B are two brothers. A marries W, but the marriage is void. A dies leaving behind his brother B , and his widow W. B claims that he is entitled to inherit As properties because W was not As wife .If he files a suit claiming inheritance to his brothers property, he can prove in these proceedings that marriage of A with W was void, hence W is not entitled to succeed to. A void marriage confers no status of legitimacy and therefore children of void marriage are illegitimate36. In respect of a void marriage no decree of court is necessary. Even when the court passes a decree, it merely declares that marriage is null and void. It is an existing fact that marriage is void and the court merely makes a judicial declaration of the fact37. Moreover a void marriage cannot be approbated. It cannot be ratified later. Concept of Voidable Marriage:
34 35

Paras Diwan: The Hindu law; Second edition;p-695 Supra 35. 36 Section 16 of Hindu Marraige Act,1955 37 Paras Diwan: The Hindu law; Second edition;p- 696

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A Voidable Marriage is one that will be regarded by every court as a valid, subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction38. However , in English Law, the form of the decree was the same as in the case of void marriage : pronouncing the marriage to have been and to be absolutely null and void to all intends and purposes in the law whatsoever. This lead to a great deal of confusion and conflict. This confusion has been now avoided by the Nullity of marriage Act, 1971. Section 5 lays down, decree of nullity granted after the commencement of this Act on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree , be treated as if it had existed upto that time. A Void Marriage is a perfectly valid marriage so long as it is not avoided. A Voidable marriage39 can be avoided only on the petition of one of the parties to the marriage. If one of the parties does not petition for annulment the marriage will remain void. If one og the parties dies before the annulment of the marriage the no challenge the marriage. The marriage will remain valid forever.So long it is not avoided all the legal consequences of a valid marriage flow from it, such as: it confers the status of husband and wife on the parties,the childrens are legitimate and all mutual rights and obligation arises from it. B. Prescribed Age For Marriage Under Hindu law.

Almost all systems of law have permitted marriages at an early age, and age of marriage and age of majority have been different. The Hindu Sages have enjoined that a girl should be married before she attained puberty though they laid down the age of 25 for the boys the age when a child returned from Gurus ashram after completion of his education. Under ancient Hindu law the age of majority was much less, under the Dayabhaga School it was completion of 5th year, while under the Mitakshara school it was completion of 16 years40. The Hindu sages like Manu and Gautama enjoined that it was the religious duty of the father to give the daughter in marriage before the signs of puberty made appearance. Some sages even declared that if a girl was married after she attains marriage-age, she was at liberty to choose a husband for herself41. The Hindu Marriage Act,1955 originally laid down the age of 15 for girls and age 18 for boys. These ages were raised to 18 and 21 of respectively by the Child Marriage Restraint (Amendment) Act,1978. Section 5 (iii) of the Hindu Marriage Act,1955 lays down that a marriage may be solemnised between any two hindus if bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage42. But such a policy of law that non- age does not render the marriage void or voidable. The marriage remains valid. The 59th Report of the Law Commission felt that the
38 39

Laxhamma v Thyamma AIR 1974 Andhra Pradesh,255 Supra 37 40 Paras Diwan: The Hindu law; Second edition; p- 606 41 Supra 40. 42 Section 5 of the Hindu Marriage Act,1955

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general understanding that the breach of that conditions does not effect the validity of marriage should remain undisturbed43. The rationale behind this policy is that minor marriages in our country are still so rampant that if we would lay down that non-age rendered a marriage void, probably 80 percent of marriages: to put a damper on them. But if performed, the validity of the marriage will not be effected in pursuance to policy of discouraging child marriages. C. Conditions For Valid Marriage Under Hindu Marriage Act,1955. A marriage may be solemnized between any two hindus, if the following conditions44 are fulfilled, namely:(i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or , (b) though capable of giving a valid consent, has been suffering from mental disorder of such kind or to such an extent as to be unfit for marriage and the procreation of children; or, (c) has been subject to recurrent attacks of insanity or epilepsy; (iii) the bridegroom has completed the age of twentyone years and the bride the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

IV. CHILD MARRIAGE LAW IN INDIA AN ANALYSIS. A. The Child Marriage Restraint Act,1929.

43 44

The 59 Law Commission Report February 2008 Section 5 of the Hindu Marriage Act,1955

th

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1. Legislative History Of The Child Marriage Restraint Act,1929.

Child marriage existed historically in India, it is believed that child marriage was prevalent in the ancient as well as medieval times45. Some Indian scholars question the existence of child marriage in ancient India, but in most religious texts the father was urged to marry of his daughter at a very young age. Most religious texts recommend46 ages between 8 to 10 as the ideal age for marriage. Sage Manu, in his Manusmriti has categorically written47 that if a girl remains unmarried after reaching the puberty, the father has failed in his duty towards her. Similarly, another sage, Parasara, said that the parents or guardians of a girl who reaches puberty before marriage will definitely go to hell. Amongst the Yadavs, Guptas ,Thahare, Kurmis, Mourya it was believed that if a daughter is married before the start of her menstrual period the blessings that will accrue will be akin to the donation of 7.800 cows. On the other hand, if the marriage is solemnized after a daughters menstrual period, it will have the same effect as killing 7,800 cows. One thing that must be kept in mind when tracing the religious and cultural roots of child marriage is that in 400 BC the average life span of a woman was between thirty five and forty years; if this was a rationale for early marriage at one time, this is no longer an issue. According to Customary Muslim Law Child Marriages are permitted. A person can enter into a valid marriage after reaching puberty, that is once he or she attains the age of 15. Even in the medieval times Child Marriage was prevalent, according to studies48 the predatory feudal lords and the princes who stalked all over India in the medieval age were a source of constant threat. Hence parents would seek to get over the responsibilities of their daughters by getting them married off before they reached marriageable age. According to some scholars the practice of child marriage did not exist in ancient India and started in the medieval age along with other evil practices like Sati and dowry. The practice of Child Marriage was prevalent even during the British period. Two significant cases in the nineteenth century brought the issue of Child Marriage into limelight. The Rukhmabai case49 in Maharashtra and Phulmonee case50 in Bengal as they are popularly known raised significant questions about the age and issue of consent in Hindu marriage. In the case of Phulmonee the girl child aged eleven years died because of a haemorrhage from a rupture of the vagina caused by her husband who had forcible sexual intercourse with her, but the court acquitted her husband as the girl was above ten years and according to the law sexual intercourse with a wife who was above the age of ten was not rape. This case galvanised public support for the Age of Consent Bill and in many ways silenced the opposition. Both the cases marked the tension between the Hindu orthodoxy on one hand that upheld child marriage and perceived any opposition to it as an affront to tradition and social reformers opposing such religious bigotry on the other hand. For the latter
45

Sagade, Jaya, Child Marriage in India, Oxford University Press, 2005 Manu Smriti, The constitution of Vedic Society.

46

47 48

Supra 46. Supra 45. 49 Cited in Kosambi, "Gender Reform," p. 271.

50

Supra 49.

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such blind adherence to social norms meant the continuation of harmful practices in the name of tradition and therefore necessitated immediate challenge of such socially sanctioned practices including Child Marriage. While the debate on Child Marriage is often understood as a tradition-modernity dichotomy, it is also important to bring to the fore the struggle by women themselves in these cases to challenge patriarchal values and practices, albeit in their limited ways. The issue of Child Marriage was first addressed in the 1860s when the Indian Penal Code laid down laws related to Child Marriage. The minimum age for marriage was not laid down, laws were made to punish those who had sexual intercourse with their wives below a particular age. The change was intended to give protection to young girls from sexual abuse within the institution of marriage. In 1860 the India Penal Code was drafted, according to Section 375 of the IPC sexual intercourse by a man with his wife who is under the age of 15 is considered to be rape. This was the first step taken in the direction of making child marriage illegal, however this law could not be successfully implemented and the practice of child marriage still continued all over the country. In 1929 the Child Marriage Restraint Act or the Sarda Act came into force with the objective of eliminating the practice of child marriage. The minimum age of marriage was raised to 14 years for girls by this Act, later it was amended in 1978 by which he minimum age was raised to 18 years for girls. However this Act has several loopholes and weaknesses, and very few persons have been prosecuted under this Act. It can be said that the enactment of this Act was only a perfunctory gesture by the government, without serious commitment to prohibiting Child Marriages. 2. The Objective And Reasons Of The Act. The Child Marriage Restraint Act, 1929 was passed during the tenure of British rule on prepartition India. It forbade the marriage of a male younger than twenty-one or a female younger than eighteen. A marriage fell under the scope of this Act if either of the contracting parties met the established criterion of a child. To eradicate the evil of Child Marriage51, the Child Marriage Restraint Act was passed in 1929. The object is to eliminate the special evil which had the potentialities of dangers to the life and health of a female child, who could not withstand the stress and strains of married life and to avoid early deaths of such minor mothers. 3. The Main Provisions Of The Act. 1.The penal provisions of the Child Marriage Restraint Act,1929 do not invalidate the fact of marriage nor do the penal provisions apply to a child. However the Act lays52 down punishment for male adult below twenty one years of age and for male adult above twenty one years of age who contracts a Child Marriage and also for the person who performs conducts and directs a child marriage. 2. Section 6 of the Act, provides53 that where a minor contracts a Child Marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or
51 52

The Child Marriage Restraint Act, 1929 The Child Marriage Restraint Act, 1929 53 Supra 36

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unlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine. 3. Section 7 provides54 that the Code of Criminal Procedure, 1973 shall apply to offences under the Act as if they were cognizable offence for the purpose of investigation. The Act provides that only a Metropolitan Magistrate or a Judicial Magistrate of the First Class can take cognizance of, or try any offence under this Act. 4. The Act lays down55 the period of Limitation of cognizance. It lays down that no Court can take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. This further dilutes the efficacy of the law. 5. The Act lays down the provisions56 for injunction, Section 12 empowers the Magistrate to issue injunction prohibiting marriage in contravention of this Act. The Court may issue an injunction against any of the persons mentioned in Section 3, 4, 5 and 6 of this Act prohibiting such marriage. An injunction shall not be issued against any person unless the court has previously given notice thereof to the person concerned and has afforded him an opportunity to show cause against the issue of the injunction. This requirement of the law may defeat the purpose of social justice where there is imperative need of judicial intervention to save the welfare and interest of the child. B. The Prohibition Of Child Marriage Act,2006. In 2006 the parliament approved a bill outlawing Child Marriages and voiding those that have taken place. Sixty-five percent of the girls married in India are below the age of 18. We need to remove this biggest obscenity of child-child and child adult marriages, Minister of State for Women and Child Development declared while moving the Prevention. of Child Marriage Bill, 2004 that the Rajya Sabha later adopted57. The supposed goal of this Act is to amend the laws that are in force in relation to child marriage, and to abolish the evil practice. However it can be said that the legislature has not really tried to abolish the practice of Child Marriage, Child Marriages have been merely discouraged. The legal position has not changed a great deal even after the passing of this Act. The present legal position after the passing of the Child Marriage Prohibition Act, 2006 has been discussed in detail in the subsequent chapters.

Supra 36 Supra 36 56 Supra 36 57 The bill had been tabled in parliament in 2004. It was then considered by a parliamentary standing committee and a group of ministers before cabinet approval was obtained.
55

54

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1. The Objective And Reasons Of The Act. The Child Marriage Restraint Act,192958 was enacted with a view to restraining solemnization of child marriages. The Act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of Marriage; The Act, though restrains solemnization of child marriages yet it does not declare them to be void or invalid. The solemnization of child marriages is punishable under the Act. There has been a growing demand for making the provisions of Act more effective and the punishment there under more stringent so as to eradicate or effectively prevent the evil practice of solemnization of child marriages in the country. This will enhance the health of children and the status of women. The National Commission for Women in its Annual Report for the year 1995-96 recommended59 that the Government should appoint Child Marriage Prevention Officers immediately. It further recommended that (i) the punishment provided under the Act should be made more stringent; (ii) marriages performed in contravention of the Act should be made void; and (iii) the offences under the Act should be made cognizable. The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. The Central Government, after consulting the State Governments and Union territory Administrations on the recommendations of the National Commission for Women and the National Human Rights Commission, has decided to accept almost all the recommendations and give effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929. Thereafter the Prohibition of Child Marriage Act,2006 has been passed. The Prohibition of Child Marriage Act,2006 was enacted to provide for the prohibition of solemnisation of child marriages and for matters connected therewith or incidental thereto. 2. The Main Provisions Of The Act,2006. (i) Section 3 of the Act lays down a provision that a petition can be filed for annulling a Child marriage at the option of the either party.The act states that a Child Marriage is voidable at the option of either party to the marriage. (ii) Section 4 lays down provision for mantainance and residence to the female contracting party to Child Marriage. (iii) Section 5 of the Act lays down custody and mantainance of the children born out of Child Marriage. (iv) Section 6 of the Act lays down the provision as to legitimacy of Children born out of Child Marriage.

58 59

The Child Marriage Restraint Act, 1929 National Commission for Women, Annual Report 1995-96.

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(v) Section 9 of the Act lays down the punishment of the male adult marrying a child.

(vi) Section 10 of the act lays down punishment for solemnisation of Child Marriages.

(vii) Section 12 of the Act lays down the provision as to when a Child Marraige shall be deemed to be void (viii) Section 13 of the Act lays down the provision as to the power of the court to issue injunction prohibiting Child Marriage. (ix) Section 15 of the Act lays down provision making the offence of Child Marriage cognizable and non-bailable.

(x) Section 16 of the Act lays down provisions for appointment of Child Marriage prohibition officer by the state government.

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V. The LEGAL STATUS OF CHILD MARRIAGES IN INDIA. One of the main reasons for the existence of child marriage is weak legislations and lack of implementation of the existing laws. This results in child marriages being conducted with impunity. In India age of marriage is 18 for a female and 21 for a male60. Any marriage of a person below this age is punishable in India. A. Position Under Child Marriage Restraint Act,1929. Under the Child Marriage Restraint Act,1929 the policy of the government was to discourage child marriages by punishing those who promoted or engaged in the act of marrying underage girls and boys, however the new spouses were not liable for any action under the Act despite both parties being under the prescribed age, and such a marriage was considered to be valid and legally enforceable. The reason behind such a policy was that it was in the best interests of the girls involved in such a marriage; for under the existing cultural and social ethos of the land a married girl was no more considered to be a part of the family of her birth and instead a part of the family of the groom. More importantly, since non-recognition of such marriages would imply that the off-springs of such marriage would be ill-legitimate, it was considered important to consider such under-age marriages valid.10 Under the Hindu Marriage Act, 1956 even marrying parties persons were liable to be punished. However child marriages were not declared to be void or voidable, they were still valid and legally enforceable, and a person could not render it void after attaining adulthood if a valid marriage had taken place during his or her childhood. B. Position Under Prohibition Of Child Marriage Act,2006. Under the Prohibition of Child Marriage Act,2006 child marriages were not made void but voidable, that is the parties to an underage marriage could declare it void after attaining adulthood. However the girl still had the right to maintenance from her husband even if the marriage was declared to be void, hence the right of the girl was protected. Another change that was brought about by the act is that the punishment for encouraging child marriage was increased. Before the passing of this Act the punishment was a meager simple imprisonment upto three months and fine. Under the new Act the a male adult marrying a child can punished with rigorous imprisonment which can extend to two years and also liable to pay a fine up to 2 lakhs. Persons solemnising the marriage, abetting the marriage or taking part in the marriage in any way can also be punished in a similar fashion. Under Section 12 of the Prohibition of Child Marriage Act,2006 certain marriages can also be declared to be void61. The marriage of a minor child is rendered to be void if the child :(a) is taken or enticed out of the keeping of the lawful guardian; or
60 61

The Child Marriage Restraint Act, 1929 Section 12, Prohibition of Child Marriage Act,2006.

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(b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void. The court has also been given more powers under this Act. Prevention is always better than cure, the Act envisions situations wherein conducting of the child marriages should be stopped. The court has the power to issue injunction prohibiting child marriages62. If, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. Under this Act provisions are made for the maintenance of the girl even if the marriage is annulled later, so the rights of the girl to get maintenance is protected. The children born out of such a marriage are also deemed to be legitimate for all purposes. Hence the rights of the a child born under such a marriage has also been protected under this Act. At present, an a child marriage is considered to be a valid marriage, although it can be annulled at the option of one or both the parties63. Recently it was held64 by the Delhi High Court that the marriage between an 18 year old boy and a 16 year old girl is valid since it is not declared to be void or voidable under any Act, and although both are underage for the purpose of marriage the marriage is legal and binding. After the passing of the Child Marriage Prohibition Act such marriages are made voidable, but nobody other than a party to the marriage can file a petition for the annulment of the marriage. However in another case the same High Court has held a child marriage as a human right violation, and a minor girl and her forty year old husband were restrained from consummating their marriage till she attains the age of majority. The girl was ordered to stay with her parents till attaining the age of majority. However the court refused to declare the marriage void. Hence, the courts have given conflicting judgements and as a result the legal position is not very clear, and in many cases it has been seen that the offenders have gone unpunished inspite of committing the offence.

62 63

Section 13, Prohibition of Child Marriage Act,2006. Section 3, Prohibition of Child Marriage Act,2006. 64 Supra 71 p- 27

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VI. CONFLICT OF CHILD MARRIAGE LAW IN INDIA WITH OTHER STATUTES IN INIA The intention of the legislature to .approve the validity of the child marriage is evident in other enactments also. It is distressing to note that the Indian Penal Code, 1860 acquiesces child marriage65.The exception to section 375 specifically lays down that sexual intercourse of man with his own wife, the wife not being under fifteen years of age is not rape, thus ruling out the possibility of marital rape when the age of wife is above fifteen years66. On the other hand, if the girl is not the wife of the man, but is below sixteen, then the sexual intercourse even with the consent of the girl amounts to rape? It is rather shocking to note the specific relaxation given to a husband who rapes his wife, when she happens to be between 15-16 years. This provision in the Indian Penal Code,1860 is a specific illustration of legislative endorsement and sanction to child marriages. Thus by keeping a lower age of consent for marital intercourse, it seems that the legislature has legitimized the concept of child marriage. The Indian Majority Act, 1875 lays down eighteen years as the age of majority but the non obstante clause67(notwithstanding anything contrary) excludes marriage, divorce, dower and adoption from the operation of the Act with the result that the age of majority of an individual in these matters is governed by the personal law to which he is a subject. This saving clause silently approves of the child marriage which is in accordance with the personal law and customs of the religion. Another glaring instance of legislative endorsement of Child Marriage can be seen in the Hindu Minority and Guardianship Act, 1956, which clearly says that the natural guardian68 of a minor girl is her husband. This section does not envisage the impact when the husband of the minor girl also happens to be a minor himself. This acceptance of guardianship of the minor wife itself indicates the legislative intention of giving legitimacy to such marriages. It is to be specifically noted that the other legislations like the Indian Penal Code and Indian Majority Act are pre independence legislations whereas the Hindu Minority and Guardianship Act is one enacted in the post independent era Another post independent social welfare legislation, the Dowry Prohibition Act, 1961 also contains provisions which give implied validity to minor's marriages. The words 'when the woman was minor' used in section 6(1)(c)69. reflects the implied legislative acceptance of the child marriage. Criminal
65

See section 375 which defines rape. Though perfectly defined, the Code does not include sexual intercourse with a minor wife above the age of 15 with its purview. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. See section 3 75 of the Indian Penal Code, 1 860. Section 2 of the Indian Majority Act, 1875 says: "Nothing herein contained shall affect (a) The capacity of any person to act in the following matters, namely marriage, dower, divorce and adoption. (b) The religion and religious rites and usages of any class of citizens of India."

66

67

Section G(c) says that the natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of minors property - in case of a minor married girl is the husband. It reads: "when any dowry is received by any one other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman, (c) If the dowry was received when the woman was a minor within one year after she has attained the age of eighteen years and pending such transfer shall hold it in trust for the benefit of the woman."
69

68

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Procedure Code, 1973 also contains a provision which incorporates the legislative endorsement of Child Marriage. The Code makes it obligatory for the father of the minor married female child to provide maintenance to her in case her husband lacks sufficient means to maintain her70. The insertion of option of puberty to Hindu Law through an amendment in 1976 indicates the silent acceptance of child marriages. The option of puberty provides a special ground for divorce for a girl who gets married before attaining fifteen years of age and who repudiates the marriage between 15- 18 years. Legislative endorsement and acceptance which confers validity to minor's marriage in other statutes definitely tarnishes the very purpose and object of the Child Marriage Restraint Act,1929 - to restrain and to prevent the solemnization of Child Marriage. These provisions containing legal validity provide an assurance to the parents and guardians that the legal rights of the married minors are secured. The acceptance and acknowledgement of such legal rights itself and providing a validity of Child Marriage defeats the legislative intention to curb the social evil of Child Marriage.

70

Section 125(l) (d) Proviso reads: "Provided that the Magistrate may order the father of a rninor female child referred to in clause (10) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child is married is not possessed of sufficient means".

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VII. AN ANALYSIS OF THE JUDICIAL TRENDS IN INIDA REGARDING CHILD MARRIAGES. Solemnization of Child Marriage is an offence under the Child Marriage Restraint Act, 1929. The Act was simply designed to restrain solemnization of child marriage without affecting the validity of marriage. The Preamble of the Act specifically states that the aim of the Act is 'to restrain' the solemnization of Child marriage. How far this object has been achieved, poses a debatable issue. The word 'restrain' means to keep in check, under control, or within bounds and is different from "prohibit, - avoid or invalidate." Hence, it is doubtful whether the validity or invalidity comes within the scope of the Act. Even before the enactment of the Act, the marriage of a minor duly solemnized had been considered as valid. Marriage under Hindu Law is a religious ceremony and a sacrament or samskara. Hence when the marriage rituals are completed by Saptupadi before the consecrated fire it creates a religious tie, which once created cannot be undone. Thus completion of the marriage ceremony with rituals is enough to confer validity to the marriage . 1. The Madras High Court categorically upheld the legal status of Child Marriage even in 1891. In Venkatacharyula v Rangacharyula71 , Vaishnava Brahmin girl got married without the consent of her father. Her mother falsely informed the priest, that the father had given his consent. Accordingly he performed the marriage with all rituals. The validity of the marriage was questioned on the ground of lack of consent of the father. Declaring the validity of that marriage, the Division Bench pointed out that the person married may be a minor or even of unsound mind, and yet if the marriage rituals are duly solemnized, it is a valid marriage.Thus the duly solemnized marriage was valid even if the parties to marriage were incapacitated. A perusal of the provisions of the Child Marriage Restraint Act,1929 reveals that it is silent about the validity aspect of child marriage.It only penalizes the solemnization of the child marriages. Whether the judicial response is in tune with the legislative intention is a much discussed issue in various judicial decisions. 2. In Munshi Ram v. Emperor 72, he daughter of one Ram Chander was married to one Munshi Ram's minor son. The marriage ceremony was completed with the observance of all rituals connected with the marriage. The Court painted out that the gaund ceremony is not a part of the marriage ceremony, and the failure to perform it does not affect the completion or performance of the marriage. Considering the validity of child marriage,Justice Ganga Nath stressed his view in the following words:

The Act aims at and deals with restraint of the performance of the marriage. It has nothing to do with the validity or invalidity of the marriage. The question of validity and invalidity of the marriage is beyond the scope of the Child Marriage Restraint Act,1929.

71 72

I.L.R. 189 1 Madras, 316. A.I.R. 1 936 Allahabad, 111. The daughter of Ram Chander had been married to Munshi Ram's 1ni11or son. The paretits of both the parties were prosecuted. They accepted the solemnization of marriage and hetice were convicted under sections 5 and 6 of the Act. On appeal, the Sessions Court confirmed the sentence. An application for revision was filed before the High Court.

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Hence the judges are constrained by the limitations in the Act. Even if the judge feels the omission in the legislation he has no power to fill the gap. The judicial creativism is restricted by the express words used in the statute or by necessary implication. If the omission of the legislature is intentional, the courts have nothing to do with it. The Courts have to delve deep into the words to find out the true purpose and object of the Act at the time of enactment. 3. In the same year, the Andhra High Court also discussed this issue. In Moti v. Ben i73 made a complaint against one Chhotulal that he had kept Beni's daughter Chamelia in wrongful confinement. Chamelia was taken from the custody of Chhotulal and was given into the custody of the mother as per the request of Beni. During the proceedings it was known that the girl was married to Moti. Then the Magistrate directed to produce the girl before the court and handed her over to the husband. Against this order an application for revision was filed before the District Magistrate. The District Magistrate had ordered Chamelia to the custody of the mother saying that she was yet a girl of thirteen years and she cannot be legally married and therefore the proper guardian is the mother. 'the matter was referred to the High Court. While setting aside the order of the District Magistrate, Justice Thomobo observed that the court below acted without jurisdiction. He vehemently criticized the remark of the District Magistrate that the marriage of Chamelia with Moti was an illegal marriage. His words reflect the real status of the child marriage and the penal nature of the offence under the Act. It is true that celebration of this marriage may have contravened the provisions of the Child Marriage Restraint Act, 1929; but marriage of a child is not declared by the Child Marriage Restraint Act, 1929 to be an invalid marriage. The Act merely imposes certain penalties on persons bringing about such marriages. 4. In 1961, Justice S.P. Mohapatra strongly emphasized the indisputable aspect of the validity of marriage in Birupnkshya Das v. Khujubehare 74. The Act does not invalidate the marriage even though it may be in contravention of the provisions of the Act75. Add frm data The Hindu Marrige Act was enacted in 1955 and contains the same age limit for bride and bridegroom at par with the Child Marriage Restraint Act,192976. The said Act remains silent about the legal validity of the child marriage and continues the earlier penal policy adopted in

73

AIR 1936 Allahabad, 852

A.I.R. 1961 Orissa,104. In spite of the marriage being valid, it is transparent from the provisions of the Act that the marriage in contravention of its provisions is a criminal act, punishable under the law.The legislature no doubt disapproves all such marriages and makes the performance of such marriage punishable in law.
75 76

74

Section 5 of the Hindu Marriage Act deals with the conditions for a Hindu Marriage and Ciause (iii) says that, at the time of the marriage the bridegroom should have completed the age of twenty one years and the bride, the age of eighteen years.

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the Child Marriage Restraint Act in case of violation77. The legislative policy adopted by the colonial Government has been followed even after fifty three ycars of independence without any change. The judicial decisions also support the view that the validity of the marriage is not affected by the violation of age rule. 5. In Kalawati v. Devi Ram78, the Judicial Commissioner of Himachal Pradesh declared that the marriage in violation of the age rule prescribed under the Hindu Marriage Act,1955 would be neither void nor voidable. Judicial Commissioner Capoor emphatically declared that the minority of the wife or of her guardian itself is not a ground for getting it declared null and void.

He affirmed his view in his next decision Naumi v. Narotam79. Realising the unnecessary hardship and consequences of making the child marriage void, the legislature may have intentionally omitted incorporating any provision dealing with invalidity of child marriage in the Hindu Marriage Act. 6. In Premi v. Dayararn80. Judicial Commissioner Ornprakash rightly shared this view saying that it is not the duty of the court to fill the gaps intentionally left by the legislature. A marriage which contravcncs the condition specified in clause (iii) of section 5 of the Hindu Marriage Act,1955 is not declared void by section 11 of the Hindu Marriage Act,1955 or any other section of the Act. The omission to declare such a marriage to be void by section 11 of the Hindu Marriage act,1955 or any other section does not appear to be merely accidental. The legislature has provided punishment under section 18 of the Act, for the breach of the aforesaid conditions. It is not for the court to speculate upon the reasons for the aforesaid intentional omission. But it may not be that the legislature did not intend to declare child marriages contravening the condition about age, specified in clause (iii) of section 5 as void, as though such marriages are discouraged by society and Law, yet the evil is deep rooted and child marriages are not rare in the country and declaring such marriages as void must have resulted in unfortunate consequences and unnecessary hardship to the parties. 7. In another case Ma Hari v. Director of Consolidation81. Justice Sathish Chandra of the Allahabad High Court observed that the solemnization of marriage in contravention of the provisions of the Hindu Marriage Act may result in punishment, yet the marriage would not become null and void and the marriage would remain valid in Law and enforceable and recognizable in a court of law.

77

According to section 1 S(a) of the Hindu Marriage Act, 1955, a contravention of the condition specified in clause (iii) of section 5 is punishable with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both 78 A.1.R 1961 Himachal .Pradesh, 1 79 A.1.R 1963 Himachal.Pradesh,15. 80 A.l .R. 1965 Himachal.Pradesh, 15.
81

A.I.R. 1969 Allahabad, 623

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8. Justice S. Acharya of the Orissa High Court shared the same view in Buda Sahu v. Laburani Sahuni82. However, in Budhan v.Manraj83., , the court adopted the opposite view while considering the issue of restitution of conjugal rights that the marriage may not be valid if performed in contravention of the age rule but the invalidity cannot be pleaded as an answer to a petition for restitution of conjugal rights. This judicial interpretation which was in sharp contrast to the earlier judicial trend was discussed in the 59th Report of the Law Commission84 and the Commission emphasized the general understanding that child marriage is valid. 9. In Mohindev Kaur v. Major Singh85 The Division Bench of the Punjab and Haryana High Court consisting of JJ Pandit and Gopal Singh vehemently emphasized that the marriage in contravention of age rule is not a nullity and hence such contravention cannot be pleaded as a defence to a petition for restitution of conjugal rights. It was further observed that the infringement of clause (iii) of section 5 did not affect the tie of marriage and render the marriage either void or voidable.

While deciding a petition on restitution of conjugal rights in Gindan v. Barila86, Justice Tankha affirmed the validity of the child marriage and the penal nature of the offence87. 10. In 1977, the Full Bench of Andhra High Court in Venkata Ramana v.State88 overruled the earlier Sarammas case upheld the validity of' child marriages in India. In this case the wife had made a complaint against the husband under section 49489 of the Indian Penal Code as he contracted a second marriage. The age of the husband and wife at the time of marriage was thirteen and nine years respectively. The defence of the husband was the first marriage as null and void, as it infringed the age rule as required for a valid marriage and he relied on Sarammas case. The Full Bench observed that the violation of clauses (iv) and (v) of section 5 of the Hindu Marriage Act renders the marriage null and void, where as, it is silent about the effects of violation of clause (iii) of the section 5 of the Hindu Marriage Act,1955. Neither section 11 nor section 12 makes any reference to the violation of conditions relating to age rule. The silence of the legislature about the legal effect of violation of clause (iii) except the penal liability clearly reveals the absence of legislative intention to invalidate child marriage. It
I.L.R. 1970 Cuttack.1215 . It is observed that clause (iii) of section 5, providing for the age of bride and bridegroom is thus spccifically excluded from the operation of the provisions of section 1 1 of the Act. The conditions rendering a I-lindu marriage null and void mentioned in section I I of the Act are exhaustive and it is only on those grounds a court can grant a decree of nullity under the Act. 1970 P.L.R. 102 See the 59th Report of the Law Commission of India, on the Hindu Marriage Act 1955and the Special Marriage Act 1954 (19741, Government of India.
84 83 82

A.1.R 1972 P & H. 184 A.I.R. 1976 Madhya Pradesh, 83 87 It is observed that a marriage solemnized in violation of the age rule is neither void ab initio or even voidable and they do not find place in section 11 and section 12 of the Hindu Marriage Act. It is only punishable under section 1 8 of the Act. However, such marriage is valid, enforceable and recognized by law. 88 A .I.R 1977 Andhra Pradesh, 43. 89 Section 494 of the IPC reads: ccV/hoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to se-den years, and shall also be liable to fine.
86

85

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may be noted that the position under the Child Marriage Restraint Act1929 is also the same. In both the statutes marriages in violation of the age rule cannot be considered as invalid, but only punishable. So it is clear that the intention of the legislature is only to punish the solemnization of marriage without touching the validity of the marriage. Further, by introducing the concept of option of puberty90 in the Marriage Laws (Amendment) Act, 197691 the legislature conferred implied validity on minor's 40Thc incorporation of option of puberty reflects the attitude of the legislature towards the decision of Saramma. After considering the statutory provision and abundant case law supporting the recognition of the validity of child marriage, the Full Bench categorically decided that the marriage solemnized under clause (iii) of section 5 of the Hindu Marriage Act is neither void nor voidable. 11. In D. Pradhan v. Bengabali Dei92 Justice Acharya of Orissa High Court also dissented from Saramma and held that violation of clause (iii) of section 5 of the Hindu Marriage Act does not vitiate the marriage. In this case the wife's pctition for maintenance and separate residence was contested with the help of the ruling of Saramma. It is to be noted that the judgement, aimed at eradicating the evil of child marriage was thus being unscrupulously used to wriggle out of the consequences following the violation of other important principles. However, the decision of Venkitaramana93 gives a severe blow to this undesirable and unintended result of Sarumma. So after analysing the foregoing cited case laws it is seen that the Indian Judiciary has been in a trend of upholding the child marriages which are being solemnised in the contravention of the Prohibition of Child marriages Act,2006.

Option of puberty means the right of a girl to repudiation of the marriage if the marriage was solemnized before she attains the age of fifteen years. After attaining the age of fifteen years but before raaching eighteen years she can exercise this right. This is a principle of Muslim law now incorporated in the HM Act. Whether the marriage is consummated or not she can exercise this right in Hindu law.
91

90

Marriage Laws (Amendment) Act, 1976 (Act No.68 of 1976) A.I.R. 1977 Orissa, 36. Supra 21

92

93

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VIII. THE LIMITATIONS OR LOOPHOLES OF THE CHILD MARRAIGE LAW IN INDIA Even after the passing of the new Act i.e. the Prohibition of Child Marriage Act 2006, certain loopholes still remain, the legislations are weak as they do not actually prohibit child marriage. It can be said that the practice of child marriage has been discouraged by the legislations not completely banned. Firstly, Child Marriages are made voidable at the option at the parties but not completely void. That means Child Marriages are still lawful. Making such marriages voidable doesnt really help matter in most cases as girls on attaining majority dont have the agency or adequate support from their families to approach the court and go for annulment of the marriage. The reason behind not making such marriages void probably is that child marriages, once solemnized and consummated makes it very difficult, if not impossible for girls to deny and step out of those marriages. Therefore, it is in keeping with the social reality that such marriages are not declared void. If the social reality largely remains the same, the likelihood that young girls will now choose to nullify their marriages, which would probably be consummated by the time she attains maturity and decides to approach the courts, seems very unlikely. Secondly, the applicability of Prohibition of Child Marriage Act, on various marriages of different communities and religion is unclear. Social customs and personal laws of different religious groups in India allows marriage of minor girls and the Prohibition Child Marriage Act,2006 does not mention whether it prohibit all the under age marriages that are sanctioned by religious laws. Thirdly, registration of marriages has still not been made compulsory. Compulsory registration mandates that the age of the girl and the boy getting married have to be mentioned. If implemented properly, it would discourage parents from marrying off their minor children since a written document of their ages would prove the illegality of such marriages. This would probably be able to tackle the sensitive issue of minor marriages upheld by personal laws. There are some discrepancies in the present Child Marriage Law of India, which are likely to benefit the accused person. The terms Void and Voidable have been used in the preamble to of the Prohibition of Child Marriage Act,2006 but there is a vast difference between the meanings of both the terms. It has been stated in clause 3 of Section 2 of the said Act that -If at the time of filing a petition, the petioner is a minor, the petition may be filed through his or her guardian or next friend along with the child marriage prohibition officer. The legislature on one hand declares Child Marriage to be illegal that is against the law and on the other hand it does not declare it to be void and the only remedy it provides to the affected parties to the marriage is that the marriage is void able at the option of the party but if the party happens to be a minor at the time of filing a petition through his or her guardian or next friend along with the child marriage prohibition officer. There is also an urgent need to amend the laws related to sexual assault to address the issue of child marriages and to protect the rights and ensure the safety of young girls.

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Indian Penal Code,1860 states that sexual intercourse by a man with his wife who is not under 15 years of age is not rape. The punishment for rape stated in section 376 states a minimum term of seven years imprisonment that may also extend to life. However the same provision states that a man is liable to punishment of a maximum of two years and fine only if his wife is under twelve years of age. Marital rape is not acknowledged under the Indian Penal Code,1860 there is also an indirect approval of underage marriages by stating that a man is only liable for rape only if he has sexual intercourse with a girl who is aged less than 15 and not 18. Hence the success of Prohibition of Child Marriage Act,2006 is bound to be extremely limited without commensurate changes in other related laws involving children.

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IX. CONCLUSIONS AND SUGGESTIONS From the foregoing analysis of facts, informations, laws, case laws relating to Child Marriages, it has evidently becomes clear that inspite of having a law prohibiting Child Marriage, the Child Marriages in India are still prevalent and are held to be a Valid Marriage in India. My opinion is that the marriage in violation of age rule should be made void. I am of view that the absence of the provisions invalidating the marriage is the main hurdle in the way of effective implementation of the Act. I admit the limitations of the judiciary when there are clear statutory provisions. According to the rules of interpretation, if the words are clear and unambiguous the court has to adopt that clear meaning. In such circumstances the judge has no discretion to change the law, in tune with the social changes. He has no duty to fill the causus omissus. Hence I strongly suggest to amend this provision so as to make the marriage void if the age rule is violated. The government needs to take steps to make people more aware about the ill effects of child marriage. Not only in the rural areas, awareness has to be raised throughout the country so that this evil practice can be prevented. The only way to stop this practice is by raising awareness amongst the people. It is admitted that the laws related to prevention of Child Marriage that are in force at present are weak and there are many loopholes and discrepancies in the laws. Certain amendments need to be made to the existing legislations. First and foremost Child Marriages should be made completely void and severe punishment should be given to persons solemnising or taking any sort of part in such marriages. I would like to mention that that time is ripe for making void the marriage solemnized in violation of the age rule. In support of my view I would like to cite the report of the Committee on Status of Women, which pointed out in its Report that the effective approach to curb this problem is to render it void94. It also remarked. At last I would like to add that, it must be kept in mind that the mere passage of any law will not be able to achieve its objectives unless it is meaningfully strengthened by other support mechanisms. A strong political will is a condition precedent which can be created only through democratic processes and pressures. All the members of the society including academicians, researchers, activists in various fields need to work together relentlessly in order to ensure justice for young girls. ******************

94

Towards Equality, Report of the Committee on Status of Women (1974), p. 1 13.

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A Selext Bibliography.

1. A.L Basham in his book ,The Wonder That Was India. 2. Paras Diwan :Hindu Law; 2nd Edition. 3. Manu Smriti: The Constitution of Vedic Society. 4. Sagade, Jaya, Child Marriage in India, Oxford University Press, 2005. 5. Paras Diwan: The Hindu Marraige law.

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