Justice Dipak Misra

National Call for Chapters,

for The Supreme Court of India.

EXCERPT FOR THE SUPPLEMNTARY

EDITION

Is the Prohibition An article by -

of Child Marriage Sakshi Parmar
Act, 2006 Ph. 9924588181
Really Prohibitive? Email- sakshiparmar2000@gmail.com
A critical analysis of the legislature

1
 Is the Prohibition of Child Marriage Act, 2006 Really
Prohibitive?
A critical analysis of the legislature

M.F. Moonzajer once quoted that “Age does not matter in most relationships, but in marriage,
it matters a lot. If you marry a younger you have to baby sit, and if you marry an older, you
have to follow orders.”1 In this contemporary India, we highly acknowledge and appreciate the
fact that India is growing liberal at a slow yet steady pace in terms of love marriages, inter-
caste marriages and live-in relationships. People are engaging into dynamic social institutions,
where the citizens belonging to the LGBTQIA community have also gained recognition yet the
encouragement for the same remains silent. Also, both the partners to a relationship are
contributing towards earning bread for the family, taking care of the children or even for that
matter sharing household chores and running errands. There have been a lot of technological
advancements, sustainable growth in the economy and active participation of citizens through
votes for a political governance where people believe themselves to be a part of a progressive
country and not bound by unreasonable customary traditions. But what makes a country
developing if it is tied with a turgid leash of ancient and hoary traditions which have no
relevance in the modern period but are followed simply because people either fear to challenge
the authority of the so-called “sacred customs” or they are bound by ancestral habit of simply
following them without understanding their validity.
One of these major customs followed from a long period of time is the Child Marriage. Young
boys and girls are forced by their parents to marry before the attain the age of majority. Girls
are deemed to be born as brides who are obligated towards the duty to manufacture and raise
children of her husband rather than her own and to take utmost care of the husband and his
family rather than her maiden home. Fathers usually gift their daughters to young boys or men
to restrain the burden of feeding one person less in the family and use child marriage as a
strategy for economic survival. In many societies and cultures, parents are under pressure to
marry off their daughters as early as possible in an effort to prevent her from becoming sexually
active before marriage; a woman who does so brings dishonour and shame to her family and
community. Because marriage often determines a woman’s status in many societies, parents
also worry that if they don’t marry their daughters according to social expectations and social
class order, their daughters would be left unmarried. Some girls are also promised to other
families in marriage before they are born in order to “secure” their future.
On the other hand, little or no schooling strongly correlates with being married at a young age
where due to a poor economic background where they cannot meet the fees of the school,
gullible parents are forced to marry their children off so that the time towards education is
shifted and devoted towards responsibility to earn and raise a family. Many families consider
girls to be paraya dhan – someone else’s wealth. This means that a girl’s productive capacities
benefit her marital family, and educating daughters is therefore seen as less of a priority than
educating sons. Moreover, in many remote regions where there are less number of girls because
they are exposed to either foeticide or are killed at a young age as parents believe them to be a
burden, men villainously rape small girls to which parents regard them to be as impure and fear
if any man would be ready to marry a rape victim; the families living in unsafe regions may

1
M.F. Moonzajer, LOVE, HATRED AND MADNESS. https://www.goodreads.com/quotes/1347605-
age-does-not-matter-in-most-relationships-but-in-marriage

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genuinely believe that marrying their daughters a young age is the best way to protect them
from danger.
The immediate consequence of the same are even dreadful. Girls who marry and give birth
before their bodies are fully developed are more at risk of death or terrible injury and illness
during childbirth. “In 2007, UNICEF reports stated that a girl under the age of 15 is five times
more likely to die during her pregnancy and childbirth than a woman in her 20s”2. Child brides
also are at far greater risk of contracting HIV than their counterparts who marry much later.
Often, they are married to older, more sexually experienced and active men with whom it is
difficult to negotiate safe sexual behaviours, especially when under pressure to bear children.
Girls who are below the age of 18 years have small pelvises and tare not physically fit for
childbearing. So, mortality and morbidity rate are seen to be higher due to the young mothers’
poor nutrition, physical and emotional immaturity, also, lack of access to social and
reproductive services, and moreover a higher risk for infectious diseases. All children have a
right to care and protection from externalities; to develop and grow into a complete and full
individual, regardless of their social and economic situation. Child marriage is a flagrant
violation of all these rights. Child marriage denies the children of their basic rights to good
health, education, nutrition, and freedom from violence, abuse and exploitation. More than
anything else, early marriage deprives girls of their most basic right-childhood. They are thrust
into the complete burden of domestic responsibilitiess, motherhood and sexual relations rather
than studying, playing with friends, dreaming about a career or fretting about a school exam.
Child marriage has a strong physical, intellectual, psychological and emotional impact, cutting
off educational opportunities and chances of personal growth for both girls and boys3. The
repercussions of child marriage are awful especially for girls rather than the boys though girls
are generally forced for early childbearing and social isolation. As a result, child brides which
are drop out of school and exposed to higher risk of domestic violence and abuse, increased
economic dependence, denial of decision-making power, inequality at home that further
perpetuates discrimination and low status of girls/women.
Entailing to all the causes and consequences the Prohibition of Child Marriage Act,2006 was
put to force on 1st November, 2007 in India with a motive to prohibit the solemnization of child
marriages in India replacing the Child Marriage Restraint Act (CMRA) of 1929 or Sharda Act.
This law was amended in 1978, wherein the legal age of marriage for girls was raised from 15
to 18 years and of boys from 18 to 21 years. “The amended law was known as the Child
Marriage Restraint Act, 1929. As of 2018, 27% of girls in India are married before their 18th
birthday and 7% are married before the age of 15”4.
The Act, though a good legislation with good intents, does not address the problem holistically.
It does not take into account the diverse personal laws and customary practices which permit
child marriages. The Act also does not address the sexual and reproductive aspects of the girl
child, which has an enormous impact on her health. One of the serious problems with the Act
is, that it does not authorize an individual to make a complaint to the police and does not
empower the police to stop child marriages if it comes to their knowledge. While the police
may not readily be willing to stop child marriages on receipt of private complaints, the very

2
WHAT’S THE CHILD MARRIAGE RATE? HOW BIG OF AN ISSUE IS CHILD MARRIAGE?.
https://www.girlsnotbrides.org/child-marriage/india/
3
Spirituality, Academic Achievement and Girl-Child Age at Marriage.
https://studylib.net/doc/5825281/academic-achievement-and-girl-child-age-at-marriage
4
No. of married girls in India in age group 15-19 yrs since 2000: Report.
https://economictimes.indiatimes.com/news/politics-and-nation/no-of-married-girls-in-india-in-
age-group-15-19-yrs-down-51-pc-since-2000-report/articleshow/69553505.cms?from=mdr

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fact that such a provision is missing from the Act itself, makes the Act a non-starter. It is known,
that by the time a complaint is filed and an injunction is issued under section 12 of the Act, the
marriage would have already taken place. Another serious problem with the Act is its total non-
application to situations of trafficking, effects on the health of the persons involved, maternal
mortality etc. The PCMA does not punish CMPO’s (Child Marriage Prohibition Officers) for
dereliction of duty. This results in a lack of accountability, thereby causing problems for
children attempting to access justice. In situations where the children manage to approach them,
CMPO’s usually require the parents to sign a statement/undertaking promising them not to go
through with/force the marriage.5 After this document is signed, the children are sent back to
their families, who continue to force them to marry. Also, the punishment prescribed under the
Act is very minimal. The maximum punishment prescribed is three months imprisonment. The
Act, therefore, does not even have a deterrent effect on any persons getting their children
married. The PCMA is silent on the registration of marriages which itself is a big flaw. When
it makes these marriages voidable in nature i.e. valid until moved for annulment, it has loose
ends when it comes to securing the proof of the marriage per se. It makes women vulnerable
to abandonment with husbands claiming that their marriage never took place. Another aspect,
which the Act does not address, is about making any government officials accountable when
child marriages take place in their jurisdiction. There is not a fraction of doubt that the
implementation of the law is extremely weak. This is also because the reporting mechanism
under the law itself is very weak. The police cannot take Suo moto cognizance of the offence
committed under its jurisdiction. The police have to wait for a report to be received upon which
it carries out its investigation. The reporting of these marriages is extremely weak and upon its
successful solemnisation it continues to be valid marriage and police itself takes no action
against the same. The socio-cultural environment around the areas in which these marriages
take place do not encourage the people who are even aware of the marriage taking place to
report. They fear serious repercussions and no protection. They also fear that their identity
could get disclosed and that their life could come under threat.
Section 2 of the Prohibition of Child Marriage Act, 2006 talks about the Definitions used in
the Act. According to section 2(a) of this Act, “child” means a person who, if a male, has not
completed twenty-one years of age, and if a female, has not completed eighteen years of age.
A degree of discrimination arises here where there is no even- handedness while describing the
age of a child. The legal age to marry as to who is a child is different both girls and boys. The
statue presumes the boys being the bread winner of the family for which he is expected to gain
the proper skills and training to seek work, whereas girls to be married of at 18 itself and not
at 21 years of age unlike the boys for having taking care of the family and to raise children as
homemaker. Many argue that typically girls mature mentally faster as compared to Boys. Girls
have a better ability to absorb the complex familial and social structures compare to boys and
thereby better adoptability to the situation. But this is unjust on the part of girls who may not
be ready physically or mentally to take marital responsibility and who wishes to pursue her
career further. She does not have the right to either choose her spouse or to decide when she
feels herself fit to get married. If there is already a universally recognised age of majority and
consent then there is no point obstructing the parties to enter into marriage having different age
groups. This difference of age only hypes the fact having a legal extension of the patriarchal
mindset that wives must be younger than their husbands.

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To Root Out Child Marriage, Existing Laws Need Tightening A lack of general awareness and
enforcement agencies not acting proactively are denying justice to victims.
https://thewire.in/law/child-marriage-laws-india

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The age of majority, 18 years, must be recognised widely and invariably as the legal age for
marriage for men and women alike as per Indian Majority Act, 1875. However, sexual
intercourse with a girl below the age of 18 is considered rape. But since child marriages are not
illegal yet, a man can legally have sex with his wife even if she is a minor, as long as she is
above the age of 15. Further, supporting the statement, marital rape has not yet been
criminalised in India.
Talking about Section 2(f) of the Prohibition of Child Marriage Act, 2006 which mentions that
“minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875), is to
be deemed not to have attained his majority. Here there is contravention in the law itself where
on one hand the statue talks about the legal age to marry for a boy to be 21 years before which
he is considered as a minor and 18 years for girls before which she is deemed to be a minor as
a contracting party to a child marriage. And on the very other hand the statue talks about a
minor person who has not attained the age of 18 years. This dilemma pertaining to the age of
minority to be considered as below 18 or 21 years for boys needs to be resolved.
The status of annulment of child marriages is very weak. One of the primary causes that was
noticed during the study was that 90% of the girls didn’t know that there is a provision in this
regard under the law. They may be aware that child marriage is an offence but they are not
aware of the rights given to them under the law. Besides the age of majority for girls is 18 years
and for boys is 21 years under the law. Section 3 talks about child marriages to be voidable at
the option of contracting party being a child and provides that annulment of child marriage can
be done either before the attainment of majority and up to 2 years from the date of attainment
of majority. This means that a girl can have her marriage annulled by 20 years of age and the
boy has the option to have his marriage annulled till he turns 23 years old. This is a huge
disparity and inequality created by law. At 20 years the girl is still too young to take any
decision for herself with regards to annulment of her marriage. Besides she is powerless and
has no understanding of how she would be able to meet her survival needs in the occasion that
she has her marriage annulled. Since 2006, the rate of annulment of marriages has been
extremely weak comparing to the incidence. Besides the social sanction attached to it is
miserable.
Under this act, it is still questionable as to why these marriages must be voidable in nature and
not void ab-initio. The paradoxical situation that arises here again is that solemnizing a child
marriage is an offence but once done successfully, it is a perfectly valid marriage unless one of
the parties to the marriage moves the court for its annulment. Child marriage is a forced form
of marriage; The girl involved is a minor, not capable of giving free and informed consent
under law. If we look in the light of the provisions of the Indian Contract Act, 1872, it is aptly
clear on this point that it is perfectly plausible to say that a minor is not competent to give a
free and valid consent for getting married. Marriages in Muslims are purely contractual in
nature. Hindu marriages are also no longer purely sacramental. They were purely sacramental
for 3 reasons: 1. Permanent in nature i.e. once you marry you couldn’t dissolve the same; 2.
Eternal i.e. valid for not the current lifetime alone but for lifetimes ahead; 3. Ceremonial i.e.
performance of religious ceremonies was essential. Hindu marriages are no longer permanent
in nature. They are open to dissolution and parties to the marriage can take the assistance of
the court in having their marriage dissolved under the Hindu Marriage Act, 1955. There are
also provisions of void and voidable marriages under the HMA, 1955. These terminologies are
traditionally used to define contracts and contractual relationships. However, they are not
purely contractual because there is no consideration involved.
Section 4 (1) provides provision for maintenance and residence to female contracting party to
child marriage; where while granting a decree under section 3, the district court may also pass

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an interim or final order directing the male contracting party to that child marriage, and in case
that male party is a minor, his parents or guardians are required to pay maintenance to the
female contracting party to the marriage until her remarriage. Challenging this, a question
arises as to why only the male party to the marriage, or in case if the male is a minor then only
his guardians provide maintenance to the female contracting party. Even under the HMA,1955,
only the husband is bound to provide alimony and maintenance to the wife after divorce. Here,
under the PCMA,2006, the liability of providing maintenance extends up to the guardians in
case he is a minor. Moreover, a residence is also provided only to the female minor along with
maintenance under Section 3 (4) where in case the party making the petition under section 3 is
a female contracting party, the district court may also make a suitable order as to provide her
with residence until her remarriage.
Section 5 of the Act talks about custody and maintenance of children born out of child
marriages. Since the contracting parties of marriage are minors and children themselves cannot
be guardians of children, the court as it may deem fit transfers the custody to either parents or
relatives of the contracting parties. Here, the rightful parents do not get the custody of the
children and the children out of such marriages are not guaranteed proper maternal care and
education. This situation arises due to the fact that minors to the marriage are forced to bear
children by their families to continue their ancestry and maintain their social order which are
again married off at a young age since they cannot bear the expenses of raising the children or
consider the girl child to be a burden and the vicious cycle of child marriage continues. This
section by providing legitimacy to the children encourages child marriage in one way or the
other.
Since the marriage is voidable at the option of contracting parties, section 6 talks about the
legitimacy of children born of child marriages where such children are deemed to be legitimate
unless the marriage is annulled. Since children to such marriage are born out of children
themselves, the question of their legitimation arises. The contracting parties marry under
coercion and also bear kids under force which makes the marriage voidable at the option of
parties relating it with the provisions of the HMA,1955 where section 12(c) mentions that if
the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner
was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or
circumstance concerning the respondent, the marriage is voidable. Since, the children are
believed to be incompetent of giving a valid consent as per section 11 of the Indian Contract
Act, 1872, the question of the marriage being voidable should not arise as the marriage should
be declared void ab initio and since the marriage is void, children out of this marriage are also
illegitimate. It is worth emphasizing that the Act still fails to make all child marriages
automatically void, instead making them void only where the child is “taken or enticed” from
the care of a guardian, in cases of compulsion, fraud or trafficking, and if performed in violation
of an injunction. Erecting further barriers, the Act holds that a child marriage is voidable only
upon the filing of a petition for annulment in district court. It is thus deeply problematic that
the 2006 Act does not instinctively declare child marriages void, only making them voluntarily
voidable.
Under section 9 of the Act, if an adult male who is above 18 years of age contracts child
marriage, he shall be punishable with rigorous imprisonment for 2 years or with fine which
may extend to one lakh rupees or both. Under section 10 there is punishment for solemnizing
marriage where if a person performs, conducts, directs or abets any child marriage, he shall be
punishable with rigorous imprisonment for 2 years or with fine which may extend to one lakh
rupees or both. Under section 11 there is punishment for promoting / permitting solemnization
of marriage where any person having charge of the child whether parent or guardian or any

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other person including member of organization or association of persons who does any act to
promote the passing or permit child marriage or negligently fails to prevent it from being
solemnized, including attending or participating such marriage, shall be punishable with
rigorous imprisonment for 2 years or with fine which may extend to one lakh rupees or both.
It is unfair on the part of the male contracting party to be punished and not the female on her
default.
Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against
her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has
been intoxicated or duped, or is of unsound mental health and in any case if she is under 16
years of age." 6But, Exception 2 of this Section says that “Sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age, is not rape”. Marital Rape is not
considered as rape! The marriage of a 1-year-old or 10-year-old is valid. The law only prevents
the marriages of children; it does not render them illegal once they actually happen7. According
to the UN, this is one of the main reasons why the custom still flourishes in rural areas. The
married children, however, after attaining majority have the right to declare it void. A woman
can call off a marriage until she turns 20, whereas a man has till age 23. However, Exception
2 of the same Section provides that sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape! So, a girl below 18 years is a child. A girl
below 18 years is not physically or mentally ready to have sexual intercourse. A girl below 18
years cannot legally consent to have sex. A girl below 18 years is not eligible to get married.
Sexual intercourse with a girl below 18 years, with or without her consent, amounts to rape.
But if this girl is his wife? A man can have sexual intercourse with his child wife, the wife
being above 15 years of age, with/without her consent and it will not amount to rape. he right
to equal protection before the law is enshrined in Article 14 of the Constitution. Yet, the law
ceases to protect a girl below 18 years of age but above 15 years of age, merely on the ground
that she is married to the man violating her! What kind of justice will we give our daughters
when even our laws fail to protect them?
Section 12 of the Act, mentions about Marriage of a minor child to be void in certain
circumstances. Subclause 12 (b) says that where a child, being a minor by force compelled, or
by any deceitful means induced to go from any place such marriage shall be null and void.
Since the child being a minor is incapable of giving a consent, how does it matter if that consent
was obtained through force or deceit. It is insignificant to make a marriage a child marriage
null and void on the basis of not giving free consent by a child who is compelled by force. This
provision should rather mention that either guardians of the contracting parties were forced by
deceitful means without their will to make their children solemnize the marriage.
There are inconsistencies between different personal laws and secular law. Under the Hindu
Marriage Act, only the parties to a child marriage are punishable even if they did not consent
to the union. There are no provisions for punishing the parents or people who solemnised the
marriage. A girl can get the marriage annulled only if she was married off before attaining the
age of 15 and she challenges the marriage before turning 18. There is no express provision to
prohibit child marriage per se. Muslim law is not codified in India. Therefore, its provisions

6
Section 375 of the Indian Penal Code defines rape Many years ago, Deputy Prime Minister L.K. Advani
had promised that rapists would be given the death sentence. But the proposal remains what it was: a
promise. https://www.indiatoday.in/magazine/cover-story/story/20020909-section-375-of-the-
indian-penal-code-defines-rape-796464-2002-09-09
7
Indian women will never be equal as long as these 9 laws remain on the books.
https://qz.com/india/224632/indian-wo

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are based on the interpretation of Quran by scholars. Under the Muslim law, there is no bar to
child marriage. A guardian has a right to get a child married. However, the couple has ‘option
of puberty’ known as khayar-ul-bulugh where they can repudiate the marriage after attaining
puberty. However, they must do so before turning 18 and only if the marriage has not been
consummated. The age of marriage under Muslim law is the age of puberty which is assumed
to be attained at 15 years of age. However, marriage before the age of 7 even if contracted by
a lawful guardian, is void ab initio. ICMA provides that a preliminary notice is to be issued 14
days prior to the marriage if the marriage is to be contracted between minors. After the
expiration of the said period, the parties can go on with the marriage without the consent of
their guardians. Under Parsi Marriage and Divorce Act (PMDA), a child marriage is invalid.
However, the Act is silent regarding age where the provisions for an invalid marriage are listed.
Jewish law in India is uncodified. Under it, the marriageable age is the age of puberty which is
fixed at 12 years.
Concluding, Child marriage is a grave social evil which violates the reproductive rights that
form the major chunk of human rights of the girl child. Early marriage and early motherhood
infringe upon the girl’s right to have control over her own body and curtails her opportunities
for education and employment apart from causing lots of problem to her and her progeny. Thus,
the human rights of the girl child are violated at that stage of her life when they need to be
protected the most. Child marriage creates a complex legal anomaly that despite there being
penal sanctions for the commission of offence, the marriage so solemnized retains the validity
in the eyes of law. On the one hand, there are penal provisions enacted to curb this menace,
while on the other hand, the other legislative enactments and judiciary recognize and endorse
the factum of validity of child marriage. That is how child marriage remains a criminal offence
– a phenomenon which is both illegal and punishable but still valid.