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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
The Child Marriage Restraint Act, 1929
61
Section 12, “Prohibition of Child Marriage Act,2006.”