IS MINOR MARRIAGE IS VOID?

OR
IF NOT THEN WHY
The provisions related to Minor marriage is governed under
1) The child marriage (restraint) act 1929
a. Section 5 : Punishment for solemnizing a child marriage --
(1) Whoever performs, conducts or directs any child marriage shall be punishable with
simple imprisonment which may extend to three months and shall also be liable to
fine unless he proves that he had reason to believe that the marriage was not a child-
marriage.
b) 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.

2) The prohibition of child marriage act 2006

a. Section 3 states that a child marriage shall be voidable at the option of the party
who was a child at the time of the marriage.
b.

On analysing the objective of the law, the court highlighted in its 2017 judgment that, “It is quite
clear from the above that Parliament is not in favour of child marriages per se, but is somewhat
ambivalent about it.”

Justice Gupta, one of the two judges who delivered the 2017 judgment on the rape law, said:
“Law cannot bring around social change. If the PCMA in its current form could not prohibit child
marriages, it may not be a workable option after an amendment. Fear of law has not worked in
this case. More attention should have been paid to ensure the law works with 18 as the
marriageable age and then probably raise it to 21.”

One of the major arguments, as put forward in the Centre for Law and Policy Research (CLPR)’s
Policy Brief and the 13th Report on the PCMA Bill 2004 by the Department Related Parliamentary
Standing Committee, is that making child marriages voidable puts the onus on the minor to
initiate the legal process for seeking a decree of nullity. Additionally, this can be done only within
two years of attaining majority (which means within the age of 20 for the girl, and 23 for the
boy).

child marriage amounts to a violation of a child’s right to live with freedom and dignity, right to
health, right to education and right to a holistic development, among others. The 205th Law
Commission Report on the Proposal to Amend the PCMA 2006, and the Report of Justice Shivraj
V. Patil Committee on Prevention of Child Marriage in Karnataka recognize these detrimental
consequences of child marriage. On account of this, their main suggestions include changing the
status of child marriage from voidable to void, to recognise the unacceptability of the practice,
deter such marriages, and preserve the rights of the children.

It is worth noting here that the State of Karnataka has amended the PCMA in 2017 to make child
marriage void as per the report of the Shivraj V. Patil Core Committee. This step was lauded by
the Supreme Court in the 2017 judgement of Independent Thought v. Union of India. Recognizing
the possible and prevalent health risks associated with early marriage and sexual intercourse, the
Court remarked that other State Legislatures should follow the route taken by Karnataka and
declare child marriage to be void.

Lastly, it is argued that the legal framework on child marriage in India has to match its
international obligations. Article 16(2) of the Convention on the Elimination of All forms of
Discrimination against Women (CEDAW) 1979, which India has signed and ratified, states that
“the betrothal and marriage of a child shall have no legal effect…”. India has also ratified the UN
Convention on the Rights of the Child (UNCRC) 1989, which puts an obligation on the states to
protect the rights of the child. These rights include, but are not limited to, right to expression,
right to freedom, right to health, right to education and right to protection from sexual
exploitation, mental and physical violence, abuse, injury, etc. These are the very rights which are
violated in a child marriage.

In addition to making child marriages void, it is emphatically highlighted that legitimacy,

maintenance and custody of the child and maintenance and residence of the child bride needs to
be ensured. The PCMA provides for these rights under Sections 4, 5 and 6 respectively. However,
these rights are present only for the child marriages made generally voidable under Section 3,
and excludes those marriages which are exceptionally made to be void under Section 12. The
205th Law Commission Report recommends extending these provisions to all forms of child
marriage. Another significant change that it suggests is the compulsory registration of marriage,
which is a way of preventing child marriages. The Supreme Court in Smt. Seema vs. Ashwani
Kumar also observed the same. It further directed the steps which need to be taken by the State
and the Central governments to make marriages of all persons who are citizens of India
mandatorily registrable. This was in light of the fact that Article 16(2) of CEDAW makes
registration of marriages mandatory, but India has made a reservation to the same that it is not
practical in a vast and diverse country like India.

This problem has been addressed, to some extent, in proposals to consider child marriages void.
In the 205th Law Commission Report and the CLPR Report, for example, it was proposed that the
protections under Sections 4 to 6 of the PCMA, which currently apply only to the marriages
declared void under Section 3, be extended to void marriages when the amendments concerned
are made. However, with respect to the wife, these sections cover only maintenance and
residence. These reliefs are highly insufficient for a person constrained to be within the marriage,
given the lacunae therein discussed in the last section; and do not include crucial rights such as
protections under Section 498A (cruelty), 304B (dowry death), and 494 (Bigamy) of the IPC,
inheritance rights, the right to stay in the marital home, and other matrimonial rights as
prescribed in different statutes. An example of such a situation of deprivation of rights in void
child marriages comes from Karnataka, where a widowed minor bride was disallowed from
claiming the pension of the deceased husband because of their marriage being considered void.
In examining this argument, it is important to note that in a void marriage, a declaration of nullity
can be sought by either of the parties to the marriage, without any time limitation. Hence, the
provision of child marriages as void would allow even the major parties to a child marriage (which
is often the husband) to seek a declaration of nullity, potentially even years after the said
marriage, leaving the bride vulnerable.

Another argument against making child marriages void ab initio stems from a significant aspect of
the actual use for the PCMA provisions. A study by Partners in Law and Development (PLD) has
noted that the PCMA has been invoked to a significant degree by parents of minor girls, to target
marriages that take place without their consent. Such elopements, however, are undertaken by
girls owing to a variety of factors, including the fear of retribution on the discovery of the romantic
relationship, the imminence of a forced marriage, and abuse or isolation in natal homes. In such
cases, declaring such marriages as void ab initio instead of voidable at the option of the minor
parties, besides militating against the couple’s autonomy, might prejudice the girl involved by
forcing her return to her natal home while the said factors persist.

Hence, the arguments for keeping child marriage voidable do not stem from the acceptance of the
practice. They are based on a consideration of the best interests of the child involved in such
marriages, given the existing socio-economic conditions present in the country

Therefor, According to the Hindu Marriage Act, a marriage between two Hindus can be solemnized
if certain conditions are fulfilled, one of which is that the bridegroom has completed the age of 21
years and the bride has completed the age of 18 years at the time of the marriage. However, the
Act does not declare a marriage in contravention of this age requirement (Section 5(iii)) as void.
Instead, the Act provides for certain consequences for such marriages. Section 12 of the Hindu
Marriage Act states that a marriage in contravention of the age requirement can be considered
voidable if the consent of the minor party was obtained by force or fraud. It means that the
marriage is not automatically void but can be annulled by either party if certain conditions are met.
The Child Marriage Restraint Act, 1929, also addresses child marriages but does not declare them
void. It provides for punishment for those involved in child marriages, including parents. Therefore,
the legal position is that a marriage contracted by a minor in contravention of the age requirement
is not automatically void but can be voidable under certain circumstances.

Case study

1. Seema Devi Alias Simaran Kaur v. State Of Himachal Pradesh (1998 CRIMES 2 168, Himachal
Pradesh High Court, 1997)

:- This case highlights that a marriage in contravention of the age requirement under Section 5(iii)
of the Hindu Marriage Act is neither void nor voidable, but can lead to punishment under Section
18 of the Act.

2. Gajara Naran Bhura v. Kanbi Kunverbai Parbat (1997 SCC ONLINE GUJ 110, Gujarat High Court,
1997)

:- This case explains that a marriage contracted in contravention of the age requirement under
Section 5(iii) of the Hindu Marriage Act is not void but can be voidable if the consent of the minor
party was obtained by force or fraud.

3. B. Sivanandy v. P. Bhagavathyamma (1963 SCC ONLINE MAD 148, Madras High Court, 1963)

:- The case of B. Sivanandy v. P. Bhagavathyamma was decided by the Madras High Court
in 1963. The case involved a dispute between a husband and wife over the validity of their
marriage. The husband had filed for restitution of conjugal rights, but the wife argued that
the marriage was invalid because she had not been given a choice in the matter. The court
ruled that the marriage was valid and that the husband was entitled to restitution of
conjugal rights. The court's decision was based on the interpretation of the Hindu Marriage
Act, which provides that a marriage is valid if it is performed in accordance with the
customary rites and ceremonies of the parties. In this case, the court found that the
marriage had been performed in accordance with the customary rites and ceremonies of
the parties, and therefore it was valid. The court's decision in this case provides insights into
the interpretation of the Hindu Marriage Act and the option to file for restitution of conjugal
rights

4. Court On Its Own Motion (Lajja Devi) & Ors. v. State & Ors. (2012 SCC ONLINE DEL 3937, Delhi
High Court, 2012)

:- The case of Lajja Devi & Ors. v. State & Ors. (2012 SCC ONLINE DEL 3937) addressed the
legal implications of child marriages in India, specifically examining the interaction between
the Hindu Marriage Act, 1955, and the Prohibition of Child Marriage Act, 2006. The Delhi
High Court, in its judgment, clarified that the Prohibition of Child Marriage Act, being a
secular law, takes precedence over personal laws, including the Hindu Marriage Act, in cases
involving child marriages. This means that even if a marriage is recognized as valid under a
personal law, it can still be declared void if it involves a minor.

The court emphasized that the Prohibition of Child Marriage Act aims to protect children
from the harmful consequences of child marriage, such as early pregnancy, health
complications, and social and economic marginalization. This objective overrides any
conflicting provisions in personal laws, ensuring that children are afforded the same level of
protection regardless of their religious or cultural background.

In essence, the case of Lajja Devi & Ors. v. State & Ors. established that the Prohibition of
Child Marriage Act serves as a safeguard for children, ensuring that they are not subjected
to the detrimental effects of child marriage, even if such marriages are deemed valid under
certain personal laws. This ruling highlights the importance of prioritizing the well-being and
protection of children above any conflicting legal provisions.

5. Ummu Sameera v. Vallikunnu Grama hai Panchayath (2013 SCC ONLINE KER 4879, Kerala High
Court, 2013)

:- case that discusses the issuance of a marriage certificate and the validity of a marriage
under the Child Marriage Restraint Act, 1929. In this case, the petitioner, Ummu Sameera,
filed a petition with the Kerala High Court seeking to challenge the validity of her marriage
to the respondent, Vallikunnu Grama hai Panchayath. The petitioner alleged that she was a
minor at the time of the marriage and that the marriage was therefore void under the Child
Marriage Restraint Act, 1929. The respondent argued that the marriage was valid because
the petitioner was 16 years old at the time of the marriage and that the Child Marriage
Restraint Act, 1929 only applies to marriages where the bride is under 15 years old. The
Kerala High Court ruled in favor of the petitioner and held that the marriage was void
because the petitioner was a minor at the time of the marriage. The Court also ordered the
issuance of a marriage certificate to the petitioner.