Lina Acca Mathew,

Assistant Professor,
Govt. Law College,
Ernakulam

Child Marriage in India

Introduction: The context and the evolution of child marriage has to be analysed through the
interaction of several legal orders: traditional customary laws, State legislation, judgments of
the courts, and international sources. Within the entire breadth and span of India, different
rules coexist, and State law may be in conflict with traditional or other kinds of rules
concerning the appropriate age for marriage. According to statistics, women in Rajasthan
marriage at age 15.9 on average, and women in Kerala marry at age 20 on average 1. In Kerala
itself, reports state that the rate of early marriage is higher in the Malabar region as compared
with the Southern region of Kerala.
The rules on the legal age for marriage are an important indicator of general conceptions
about marriage and the roles and duties within a marital relationship. The legal age for
marriage is different in the legal orders of different countries. However, the establishing of
this required age has two main points of reference: the attainment of the pubertal age, which
is connected to sexuality and pregnancy, and the attainment of the age of consent, which is
connected to individual choice. Even today, the rules to regulate the minimum age for
marriage are not uniform across the globe with respect to either official legal systems or
unofficial practices (Francavilla D., 2011: 529). The legal age for marriages in India is set at
twenty –one for males and eighteen for females. But till 2006, child marriages have been
deemed valid under the Child Marriage Restraint Act, 1929. Following the activism of
movements for the rights of women and for international human rights, and due to a growing
concern for the negative impact of child marriages on the living conditions of women and the
social and economic development of the country, in 2006, the Child Marriage Prohibition Act
was introduced (Francavilla D., 2011: 531). However, statistics report that between 2000 and
2010, in the Indian states of Andhra Pradesh, Jharkhand, and Rajasthan, one in five young
women who are now ages 20 to 24 said they had been married by their 15th birthday, higher
than the national average for India of one in seven2.

Historical evolution of the practice: The dharmasutra and dharmashastra literature include
several rules on the age of marriage, according to which a girl should be married a few
months after puberty begins or even before (Lingat R., 1973: 3-14). Hence in mainstream
Hinduism, early marriage was perceived as a duty. Child marriages had positive effects on
the maintenance of cosmic order, the preservation of the society, and the spiritual merits of
those involved. Another argument is that in order to ensure that the requirements of a good
marriage are fulfilled, namely caste, social status etc, an early marriage is a strategy to
resolve all these issues in an efficient way. Since an Indian bride becomes part of the
bridegroom’s family, marrying away a girl young is a functional way to make the bride’s
passage to the new family easier before she can question it (Francavilla D., 2011: 534), for
1
International Institute for Population Sciences and ORC macro., National Family Health Survey (NFHS-2)
1998-99 India, ‘Summary of Findings’ (Mumbai:IIPS, 2000) at xx. As cited in Sagade J. (2005). Child
Marriage in India: Socio-Legal and Human Rights Dimensions New Delhi: OUP at 4-7.
2
Population Council and UNFPA, The Adolescent Experience In-Depth: Using Data to Identify and Reach the
Most Vulnerable Young People: India 2005-06 (New York: Population Council, 2009).
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. Yet
another argument is that child marriage is an off-shoot of the Mughal Muslim invasions,
created in order to ensure unions between Hindus at the earliest possible time in order to
protect the honour of the woman. More importantly, since non-recognition of such marriages
would imply that the off-springs of such marriage would be illegitimate, it was considered
important to consider such under-age marriages valid. Thus it was perceived to be in the best
interests of the girls involved in such a marriage to validate the practice.
Indian social activism as well as pressure from England regarding certain unacceptable
practices like child marriage, caused a focus on trying to alleviate the worst suffering of the
Indian women, instead of eradicating the practise itself. Hence the resulting legal regulation
took the shape of ‘restraint’ rather than ‘prohibition’. This led to Section 375 of the Indian
Penal Code, 1860 being drafted in such a way that ‘a man is said to commit rape…..Fifthly:
with or without her consent, when she is under ten years of age….Exception: sexual
intercourse by a man with his own wife, the wife not being under ten years of age, is not
rape.’ In 1891, the age was raised to twelve through the Age of Consent Act, 1891 officially
known as the Indian Criminal Law Amendment Act (Francavilla D., 2011: 535). In 1929, the
British undertook a new initiative with the Child Marriage Restraint Bill, which proposed that
a marriage would be deemed invalid when the age of the girl at the time of marriage was
below twelve, or the The Child Marriage Restraint Act, 1929 provided for different penalties
depending on age, gender and the role played in marriage solemnisation. It simply established
a criminal penalty of detention, fine or a combination of both. Thereunder those promoting or
engaged in the act of marrying under-age boys and girls were liable for punishment. However
the new spouses were not liable for any action and the marriage, despite either or both parties
being under the prescribed age, was legally valid and enforceable and there lay a proper civil
action of the enforcement of conjugal rights from such marriage; a right which is a
concomitant of a legally recognized marriage.

The Indians did not legitimate such colonial intervention because they felt that it was an
attack on their system of personal laws. Hence the British did not question the validity of
child marriages, even though they tried to intervene in the practice through criminal norms
aimed at restraining the worst effects that were connected to the practice. (Francavilla D.,
2011: 538). The same approach can be seen by the Indian Government with regard to Article
44, which provides for the State to adopt a uniform civil code as a directive principle.
However, it is a known fact that this directive principle will not be implemented in the
foreseeable future due to the same attitude towards preserving personal laws despite being
violative of various kinds of human rights and against the principles of fairness, justice and
good conscience as enshrined in the Constitution. The splitting up of the Indian population on
casteist, religious and regionalist lines and the whole polity being aligned in such terms for
the sake of power politics are further proof of the fact that Art. 44 will remain a dead letter.

The New Law on Prohibition of Child Marriages: The 'Prohibition of the Child Marriage
Act, 2006' and its coming into effect from 1st November, 2007 ushered in a new regime,
whereby, the parties to an under-age marriage were given rights to get their marriage declared
void, thus essentially making child-marriages voidable at the option of the under-age party to
such marriage. The right to maintenance of the girl were protected. So even of the such
marriage was declared void, the girl had the right to maintenance from the husband till the
time she got remarried. Further, under the new Act the punishment for encouraging or
facilitating or solemnizing such marriages was increased. Nonetheless the policy of not
holding the parties liable for solemnization of such marriages continued even under the new
Act.

The 205th Law Commission Report: The Law Commission came out with the 205th Report
in2008 entitled 'Proposal to Amend the Prohibition of Child Marriage Act, 2006 and other
allied Laws', responding to the queries raised by the Supreme Court in a writ petition in 2006
before it wherein the Court sought the opinion of the Commission on certain issues relating to
child marriages and the different ages at which a person is defined as a child in different laws
in India. During the pendency of the Writ Petition, the Prohibition of Child Marriage Act,
2006 was enacted giving certain important rights to victims of child marriage and children
born from these marriages. The Commission thereafter further examined whether the new
Act addressed all the concerns relating to child abuse, health and human rights, which are an
inevitable consequence of child marriage. The Law Commission examined in detail the
scientific and medical issues arising out of early marriage and came to a conclusion that an
early marriage is not good for any and all the parties involved due to physiological,
psychological, and emotional reasons. Such effects encompass not only the parties to such
marriage but also the household in which they stay. Further, the aspect of human rights of the
parties, in the context of being married at such an early age, caused the Report to state thus:

"Child marriage is thus child abuse and a violation of the human rights of the child. It has an
extremely deleterious effect on the health and well being of the child. It is a denial of
childhood and adolescence; it is a curtailment of personal freedom and opportunity to
develop to a full sense of selfhood as well as a denial of psycho-social and emotional well
being and it is a denial of reproductive health and educational opportunities. The girl child is
the most affected and suffers irreparable damage to her physical, mental, psychological and
emotional development."
Upon an extensive review and deliberations upon the various considerations involved in
child-marriages and its implications upon other criminal laws, the Law Commission has
proposed the following:
(a) Child marriage below the age of 16 is be made void (b) Marriages where either or
both spouses are between 16 and 18 be made voidable
(c) The provision of maintenance of the girl till her remarriage in either (a) or (b) to be
continued and all children arising out of either of the marriages under (a) or (b) to be
deemed legitimate; (d) The concept of marital rape as being a non-punishable offence is
to be deleted from the Indian Penal Code; (e) The legal age for a girl to give sexual
consent to be increased to 16 years;(f) Registration of all marriages to be made
mandatory; and (g) The age of marriages for both boys and girls be made 18 years; as
there is no reason for keeping a difference in the two ages.

One significant fact which arises upon an evaluation of this Report is its failure to consider
the presence of Muslim personal laws wherein the age of marriage of girl is the age when she
attains puberty. Since the proposal is keen to envisage all girls to be married only after they
attain 16 and there is no qualification as to Muslim girls, it would imply that these provisions
are applicable across the board to all girls in India, irrespective of the religion or cultural
ethos they come from. This makes this proposal the first in line with the cherished idea of a
'Uniform Civil Code' which forms a controversial element in the 'Directive Principles of State
Policy' under the Constitution of India.
A theory of tax incentives to promote women’s rights within the family relationship:
Sagade J. (2005) advocated for a movement involving the legislature, the judiciary, law
enforcement, educators, health carers, NGOs and the people as a whole3. These reforms
involve changing long standing habits and behaviour of humans, and these reforms are often
in opposition to personal and vested interests. Hence it is not an easy task to achieve such a
behavioural change merely through legal reforms. (Sagade J; 2005:225).
Mercier (2006:396) states that these solutions are idealistic, and impractical. An easier way to
promote women’s rights is by inverting the economic scale. She states that females in India
are culturally viewed as a financial burden. Hence their status as daughters and widows are
considered an economic encumbrance upon the parents and in-laws. She suggests that the
Indian Government, through tax incentives involving the registration of marriages and the
property and inheritance laws, should create financial incentives for the people of India to
change their habits and behaviour. She suggest that if all parties to a marriage, including the
bride’s parents, will enjoy a tax benefit and property protection from registering marriage and
dowry gifts, then the parties to a marriage will be more inclined to wait and marry at the
legal, financially beneficial marrying age.
She states that a pragmatic approach could co-mingle property and tax laws to create a means
by which the benefits of dowry are decreased and the benefits of marriage registration are
increased. Because female children are typically not given a share in parental property, dowry
becomes the closest substitute for inheritance. While the task of ensuring that daughters get
their due share in parental property may prove difficult, if not impossible, perhaps there is a
tax-based way to encourage a generation of wives to get their due share in nuptial property.
This initial due share could then begin a cycle where wives, as property owners and mothers,
would ensure their daughters receive a share in parental property that they then could bring to
the nuptial table. She gives an example whereby an immediate tax credit upon registration of
marriage would encourage families to register in accordance with local laws. If, as apart of
the marriage registration, the couple also register title in property jointly, the couple could
receive tax credits on liabilities incurred for personal property that would be taxed at a higher
rate if held individually. Such a practice would convert property given in dowry to property
jointly owned by the married couple. The parents of a girl child may not be enticed to marry
her off at a young age to avoid an increasing dowry if they were receiving continued tax
incentives from their jointly held property. The daughter’s potential groom may not want to
marry her at a young age because he will be unable to receive the marriage tax credit if she is
below the legal age. Such a tax incentive approach would allow individuals to choose to have
both spouses share the same rights in the ownership, acquisition, management,
administration, enjoyment and disposition of property.
Conclusion: The Hon. Supreme Court of India in the judgment passed in Seema v. Ashwani
Kumar (AIR 2006 SC 1158) held that marriages of persons who are citizens of India,
irrespective of religion, should be made compulsorily registrable in the respective States
wherein the marriage is solemnized. The Apex Court directed the Sates and the Central
Government to take the necessary steps for implementing the Court’s direction. Accordingly,
on 16.11.2006 the Government of Kerala published in the official Gazette the Rules for
implementing the directives of the Supreme Court, titled the Kerala Registration of Marriages
(Common) Rules, 2008. Hence it is made mandatory that marriages be registered. This will
go a long way to ensuring that child marriages do not take place. However, it is our
experience that imperative law is always flouted, and means and methods to flout the law will

3
Sagade J. (2005). Child Marriage in India: Socio-Legal and Human Rights Dimensions New Delhi: OUP at
221-22.
be devised by those who do not want to comply. Economic rewards for compliance with the
law may work where punitive sanctions do not.
Mercier’s suggestion is an ambitious one. Whether such kind of tax incentives would be too
costly to implement would depend on State policy, given the impressive strengthening of the
economy and gross domestic product. Spending increased revenue on education and
decreasing taxes on spousal property will not only be offset by decreased expenditures on
healthcare and welfare, but also by the increased productivity and tax paying status of
educated, property-owning women (Mercier, 2006: 395). The success of the kudumbasree
movement in Kerala has shown that when women are given facilities to access credit from
banks, and given leadership training along with promoting micro-entrepreneurship for
sustainable economic development, women are able to promote self-help measures and reach
out positively to the family and community. Therefore such pragmatic, economically induced
behaviour changes should be made in such a way as to compliment the practical and ideal so
that not only is the effect protection of human rights for women but also the aim should be an
India which exemplifies its commitment to gender justice.
References
Francavilla D. (2011). “Interacting Legal Orders and Child Marriages in India” Journal of
Gender, Social Policy & the Law 19:2 529-547.
Law Commission of India, 205th Report (2008) ‘PROPOSAL TO AMEND THE
PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND OTHER ALLIED LAWS’
Lingat R. (1973) The Classical Law of India USA: University of California Press.
Mercier J (2006). “Eliminating Child Marriage in Inda: A Backdoor Approach to Alleviating
Human Right Viloations” Boston College Third World Law Journal 26:377-396.
Sagade J. (2005). Child Marriage in India: Socio-Legal and Human Rights Dimensions New
Delhi: OUP