Child marriage

 Child marriage refers to the marriage of a child younger than 18 years old, 1 in accordance to
Article 1 of the Convention on the Right of the Child. In simple terms, child marriage is the
marriage of a person aged before majority.
 As a derivative interpretation of several international documents, it is a violation of human
rights.2 While child marriage affects both sexes, girls are disproportionately affected as they are
the majority of the victims.
 Child marriage and child betrothal are oftentimes practices that are related to customary and
religious beliefs, along with a lot of relevant economic considerations. They occur globally, in
many parts of Africa and Asia and to some extent in the Americas.
 Globally, 36 per cent of women aged 20–24 were married or in union before they reached 18
years of age.3 An estimated 14 million adolescents between 15 and 19 give birth each year. Girls
in this age group are twice as likely to die during pregnancy or childbirth as women in their
twenties.
 Most often an arranged marriage, children, especially girls, are married off early – sometimes just
after puberty, and sometimes even before – so as to bring the family some monetary earning. In
many communities, a young girl brings in a lot of dowry – it doesn’t matter that these girls may
be too young to marry, it doesn’t matter that the man she is married off to, is easily double, triple
or even four times her age.
 These communities place significant emphasis on the fact that a woman is not allowed, or is
deemed incapable of being educated or working. There is also a belief that women must
reproduce early enough because they have a shorter reproductive life period in relative
comparison with men.
 In many parts of Asia and Africa, families give birth to many children so that enough of them
survive, and enough of them help by being more hands to work. If these children are sons, these
families deem them economically viable assets to the family. If these children are girls, they are
redundant to the family’s economy except when they are married off – until which time they are
only more mouths to feed.6 In such communities, child marriage is a transaction that often
represents a Child marriage in India is not a new phenomenon.
 The practice as it prevails now, though, continues to thrive in economically disadvantaged communities,
especially those that are colored by customary and cultural practices and perspectives that encourage the
early marriage of a girl child.
 This project will offer a complete breakup of information on Child Marriage in India, its prevalence and
impact, and the legal provisions that concern the issue.
 Child marriage in India continues to thrive by and large in the rural areas more than elsewhere in the
country. The factors that encourage its subsistence are usually a combination of poverty, the lack of
education, continued perpetration of patriarchal relations that encourage and facilitate gender inequalities,
and cultural perspectives that encourage the phenomenon to thrive.
 Economically, child marriages work as mechanisms that are quick income earners. A girl child is seen as
a leeway to a large dowry, to be given to her family upon her marriage. Girls in many communities are
not seen as assets in the family they are born into, but rather, as liabilities – especially since they are seen
as more mouths to feed and no hands to work. From the economic perspective, child marriages are
preferred by families that are poor, in a bid to reduce costs on the family, and to enable its economic
strength by making money available for food, health and even education of the sons born to the family.
 From this standpoint, therefore, it is not wrong to conclude that girls are deemed chattels or property in
the hands of their families as they are all set to be married off at the earliest.
 In 2007-2008, as many as 42.9% of the surveyed segment of married women in the age group 20-24 years
were married before eighteen.
 An astounding number of 23 million women in the age group of 20-24 were married before they attained
their eighteenth birthdays. With that astounding percentage, India contributes as many as 40% of world’s
child brides. The younger a bride, the higher her “value”, as the chastity of a young bride remains
preserved.
 In their pursuit to marry off the girls, education remains compromised – consequently culminating in the
harsh reality that Indian girls without education are six times more likely to be married off early than
those that have about ten years or more of education.
 There is also the prevailing threat that holds girls back from fighting the yoke of child marriage – honour
killings. Girls that are married against their will are not allowed to fight back – for that would induce their
families to kill them to preserve the “honour” of their family names and reputations.
 Another major factor that contributes to the prevalence of child marriage is the declining sex-ratio. While
many clinics have and do retain and ensure that the ban imposed on sex-selection and prenatal sex
determination remains steadfast.
 the law is not enforced enough to combat unsafe abortions of the female foetus, and to deal with the
abandonment of the girl child after birth.
 Owing to this, in rural parts of northern India, particularly in Rajasthan, the declining sex-ratio has
allowed the festering of a practice known as Atta Satta where a daughter is exchanged for a daughter-in-
law, irrespective of her age.Law and policy targeting Child Marriage in India.
 The Prohibition of Child Marriage Act was passed in 2006 following the high number of child marriages
and disappointment of the already existing Child Marriage Restraint Act of 1929 to provide an adequate
solution to this social menace. The core provisions of the Prohibition of Child Marriage Act, 2006 are as
follows:

 The legal age for marriage in India is eighteen for girls and twenty-one for boys, 20 on the lines of what
was mentioned in the Child Marriage Restraint Act of 1929.

 By Section 16, full-time “Child Marriage Prohibition Officers” are appointed in every state and are
supposed to police instances of child marriage. These officers are vested with the authority to prevent
child marriages, make documented reports of violations, charge offenders that can also include the child’s
parents and even remove children from dangerous and potentially dangerous situations.

 Child marriages are not considered illegal but merely voidable. The grounds for the declaration as void
are laid down in the act itself. 24 This is done at the option of the child that has been married off –
allowing her to declare her marriage void at anytime up to two years after reaching adulthood.

 The only exception where a child marriage can be declared as void even before the child reaches the age
of 18, is when the child has been abducted, kidnapped, trafficked or been compelled to marry under force,
deceit, coercion or misrepresentation.
 Child marriage Restrain Act 1929

 To eradicate the evil of child marriage, 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.
 It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all
citizens of India within and beyond India.
 It came into force from the Ist day of April, 1930.

(a) "Child" means a person who, if a male,. is under twenty one years of age, and if a female, is under
eighteen years of age

(b) "Child marriage" means a marriage to which either the contracting parties is a child ;

(c) "Contracting party" to a marriage means either of the parties whose marriage is or is about to be
thereby solemnised ;

(d) "Minor" means a person of either sex who is under eighteen years of age.

 The penal provisions do not invalidate the fact of marriage nor do the penal provisions apply to a
child. Its section 3 provides that, who ever, being a male above eighteen years of age and below
twenty one, contracts a child marriage shall be punished with simple imprisonment, which may
extend to fifteen days, or with fine which may extend to one thousand rupees, or with bothWhoever,
being male above twenty one years of age contracts a child marriage shall be punished with simple
imprisonment which may extend to three months and shall also be liable to fine.
 In the Indian social set-up a male adult can be imputed greater sense of foreseeability of the
consequences of this social evil of child marriage and in this context the punishment prescribed by the
law to deter them is too mild in effect specially in this era of social justice when penology has
become more reformative than deterrent.
 Whoever performs, conducts or directs any child marriage shall be punished with simple
imprisonment which may extend to three months and shall also be liable to fine, unless he proves that
he had reasons to believe that the marriage was not a child marriage (section 5).
 Though their liability under the criminal law is that of the abetters, but it should not preclude their
direct responsibility for the offence and suitable amendment should be made in the Act to punish
 them as principal offenders. If this social evil is to be eradicated the role of such intermediaries
should be brought to book with deterrent punishment. The present law is lukewarm in this regard.
 Consummation of "Gauna" is not part of marriage ceremony. The marriage being complete before the
consummation, a person may be convicted under this Act, though consummation has not taken place.
 Section 6 provides 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 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.
 Provided that no woman shall be punishable with imprisonment. Under this section, it is presumed
that where a minor has contracted a child marriage, the person having charge of such minor has
negligently failed to prevent the marriage from being solemnised. Minors are incapable of entering
into any valid contract and marriage under the Hindu law is not a contract. So the words "where a
minor contracts a child marriage" in section 6(l) ought not to be literally interpreted as per its
dictionary meaning but ought to be understood as meaning "where a child marriage" takes place or
where a minor enters into a child marriage.
 The child bride or the child bridegroom are mere passive actors in such a marriage and the active
participants are the parents, guardians or the custodians of such children. As the law is not mindful
about the active culpability of these persons, this Act has not yielded the desired results. The
imposition of fine only lacks the deterrent effect which is needed most in such cases. Further this Act
does not take into account the performance of preparatory ceremonies of such a marriage like
engagements etc. Some provision should be made in this Act to prevent and punish such actions also
if they culminate in child marriage.
 It is note worthy that a contravention of the provisions of the Act does not render the marriage invalid
as the validity of the marriage is a subject beyond the scope of the Act. A marriage under the Hindu
Law by a minor male is valid even though the marriage was not brought about on his behalf by the
natural or lawful guardian. The marriage under the Hindu Law is a sacrament and not a contract. The
minority of an individual can operate as a bar to his or her incurring contractual obligations, but it
cannot be an impediment in the matter of performing a necessary "Sanskara". A minor's marriage
without the consent of the guardian can be held to be valid on the application of the doctrine of
factum valet.
 Limitation -- 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.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.

 This 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. No doubt
frivolous petitions by interested persons may sometimes result in dislocation of arrangements in
genuine cases and such victims may also face social humiliation but this can be safeguarded by
making deterrent provisions in the Act for those who move such frivolous petitions.

 The Court may either of its own motion or on the application of any person aggrieved, rescind or alter
any order made under sub-section (1).

 When such an application is received, the Court shall afford the applicant an early opportunity of
appearing before it either in person or by pleader; and if the court rejects the application wholly or in
part, it shall record in writing its reasons for so doing.

 'It was defined by The Child Marriage Restraint Act in 1929,and it set the minimum age of
marriage for men as 18, and women as 15. That law was questioned by Muslims, then superseded by
personal law applicable only to Muslims in British India with Muslim Personal Law (Shariat)
Application Act of 1937, which implied no minimum limit and allowed parental or guardian consent
in case of Muslim marriages.

 Section 2 of the 1937 Act stated,The 1929 law for non-Muslims was revised several times after India
gained its independence from the colonial rule, particularly in 1978 when the marriage age was raised
by 3 years each for men and women. The applicability and permissibility of child marriage among
Muslims under the 1937 Act, under India's Constitution adopted in 1950, remains a controversial
subject, with a series of Supreme Court cases and rulings.

 The definition of child marriage was last updated by India with its The Prohibition of Child
Marriage Act of 2006, which applies to all Indians except the state of Jammu and Kashmir and
 the renoucants of the union territory of Puducherry. For Muslims of India, child marriage definition
and regulations based on Sharia and Nikah has been claimed by some as a personal law subject but
has been ruled by various courts that it applies to Muslims also.

 For all others, The Prohibition of Child Marriage Act of 2006 defines "child marriage" means a
marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child;
and child for purposes of marriage is defined based on gender of the person - if a male, it is 21 years
of age, and if a female, 18 years of age.

 A report by The New York Times states that sociologists attribute the origin of child marriages in
India to be the Muslim invasions that began more than 1,000 years ago. Invaders raped unmarried
Hindu girls or carried them off as booty, prompting Hindu communities to marry off their daughters
almost from birth to protect them.

  Scholars have argued that the Muslim rule led to the deterioration of the status of women in India,
which included a spike in child marriages to protect the girls from Muslim rulers and
landlords. Others suggest child marriages were common everywhere in the world before the 19th
century.

 At the time of the Delhi Sultanate, political atmosphere was turbulent and ruled by Muslim Sultans
in an absolute monarchy government. During this period the Sultans produced practices such as
child marriage and had lowered the status of women even further.

 The Vedas, specifically the Rigveda and Atharvaveda, have verses that clearly indicate that during
the Vedic Period, girls married well after attaining puberty and were of a mature
age. The Dharmaśāstra (Dharmasutras) also state that girl should be married after they have attained
puberty. Medhātithi's Bhashya states the right age for marriage of a girl can be deduced from
Manusmriti. According to the Tolkāppiyam, which is a book on Tamil grammar, a boy should be
married once he is sixteen-years-old and a girl before she is twelve.

 The Greek historian Megasthenes though talks about early puberty of girls in South India.
According to Edgar Thurston, in South India a candlelight ceremony was held for girls (vilakiddu
kaliyanam) from seven to nine years, likely later, but always prior to the marriage. Allan Dahlaquist
 states this is evidently a puberty ceremony before marriage which may explain Megasthenes'
comments.

 Dowry is a practice in India where the bride's family transfers wealth to the groom; in many cases, it
is a demand and condition of marriage from the groom's family. Dowry is found among all religious
faiths in India, and the amount of dowry demanded and given by the bride's family has been
correlated to the age of girl. Nagi, in 1993, suggested that the practice of dowry creates a fear and
pressure to avoid late marriages, and encourages early marriage.

 Poverty in India has been cited as a cause of early marriages. Child marriages of girls is a way out of
desperate economic conditions, and way to reduce the expenses of a poor family.

 In some parts of India, the existence of personal laws for Muslims are a cause of child marriages. For
example, in Kerala, 3400 girls of 13-18 age were married in 2012 in the district of Malappuram. Of
these, 2800 were Muslim (82%). Efforts to stop this practice with law enforcement have been
protested and challenged in courts by Indian Union Muslim League and other Islamic organizations,
with the petition that setting a minimum age for marriage of Muslim girls challenges their religious
rights
Bibliography

Legislation

 Child Marriage Restraint Act (1929) http://wcd.nic.in/cmr1929.htm

 Pre-Conception and Pre-Natal Diagnostic Techniques Act (1994)

 Prohibition of Child Marriage Act (2006) http://wcd.nic.in/cma2006.pdf

 UN Convention on the Rights of the Child, 1989

Prepared by- Bindranjan D. Singh

S.Y.LLB