Child Marriage and related laws in India

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WHO IS A CHILD?

According to International Law a ‘Child’ is defined as a human being below the age of 18 years and it is a universally accepted definition of a child, accepted by United Nations Convention on the Rights of the Child (UNCRC). In India, different age groups are defined in different concepts creating ambiguity.

  • “Juvenile” or “Child” is a person who has not completed eighteen years of age as per the CRC guidelines Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Child Labor (Prohibition and Regulation) Act, 1986, Section 2 (ii), “Child” means a person who has not completed the age of 14 years.
  • Child Marriage Restraint Act, 1929, Section 2 (a), “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.
  • Immoral Traffic (Prevention) Act, 1956, Section 2 (a), “Child” means a person who has not completed the age of sixteen years.

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]

Indian Scenario

According to UN report, India has highest percentage of child marriages (Charu Sudan Kasturi, 2013). Every second girl, in India, is married underage, the United Nations Population Fund (UNFPA) reported in a recent assessment of global child marriage patterns that paints a worrying picture of a practice widely banned but still rampant.[4]

According to UNICEF, 47% of girls are married by 18 years of age, and 18% are married by 15 years of age. These marriages are often performed without the consent of the girls involved in the marriage. The magnitude of girl child mortality is reflected from the fact that every year, about 12 million girls are born in India; a third of these girls die in the first year of their life; three million, or 25 per cent, do not survive to see their fifteenth birthday. The child mortality rate between 0-4 years for girl child is 20.6%, two percent more than that of boys (18.6%), 46.6% girls of 15-19 years face complications during delivery that are: premature labour 71.7, excessive bleeding 24.1, prolonged labour 36.1, obstructed labour 8.4, breech presentation 6.9, convulsion high blood pressure 8.6 (NRHM AP).[5]

The enrolment figures of the girls in schools are comparatively lower than those of the boys indicating that many girls do not get enrolled in schools. 34% of girls dropout before they complete Class 5. One of the major reasons for so many girls not attending school is their workload, both within and outside the household. Daughters are often kept at home to help the family because the social and economic value of educating the girls is not recognized. Without access to education, girls are denied the knowledge and skills needed to advance their status.

Though Indian law has made child marriage illegal, the practice is still widespread across the country. The highest numbers of child marriages are seen in the rural areas of Bihar, Madhya Pradesh, Andhra Pradesh, Rajasthan, Uttar Pradesh and Jharkhand. Though the practice of child marriage affects both boys and girls, statistics show that usually girls are forced into a child marriage than boys.

LAWS AND POLICIES  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,[8] on the lines of what was mentioned in the Child Marriage Restraint Act of 1929.[9]
  • By Section 16, full-time “Child Marriage Prohibition Officers” are appointed in every state and are supposed to police instances of child marriage.[10] 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.[11]
  • Child marriages are not considered illegal but merely voidable. The grounds for the declaration as void are laid down in the act itself.[12] This is done at the option of the child that has been married off – allowing her to declare her marriage void at any time up to two years after reaching adulthood.[13]
  • 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.[14]
  • The legislation also penalizes the arrangement, performance or participation in child marriages. By Section 9, any man who is aged above eighteen who contracts for a child marriage is punishable by imprisonment of up to two years, or may be charged with a fine of up to one lakh rupees, or both.[15]
  • By Section 10, these penalties are extended to anyone who performs, conducts, directs or abets a child marriage unless he can prove that he had reason to believe that the marriage was no child marriage.[16]
  • If the child herself contracts for a child marriage, under Section 11, any parent or guardian who actively supports the marriage or negligently fails to prevent it is punishable by way of imprisonment and or a fine.[17] The same provision has a clause, namely section 11(2), which speaks of a rebuttable presumption that the child’s parent or guardian negligently failed to prevent the marriage.[18]

Considering that the law is by itself rather segmented in the approach to child marriage and its various forms, and the fact that there have been many, many instances of child marriage but only a few have been reported, overall, it would be fair to conclude that the law hasn’t been as successful as is ideal. The few cases that have been reported have been criminal prosecutions – most of which involve the adult spouse and or the family of the minor involved.[19]  In many instances where such cases are brought to fore, judges have ordered the minor or both spouses as the case may require, to seek counselling while they deliberate on the custody rights based on the best interests of the minor.[20]  As much as the legislation is centric to the interests of the minor, there are very few instances where the minors themselves in their capacity as the victims of child marriage, have successfully approached the court and filed for a declaration testifying to the effect that their marriage is void under the Prohibition of Child Marriages Act.[21][22]  Per se, under the law, there are no legal exceptions to the prohibition on child marriages, nor for the rule imposing a minimum age for marriage.[23]   Why does Child Marriage still prevail in India?

While the legal instruments outright declare child marriage to be unacceptable, ground reality is largely different. The institution of child marriage is rankled by contradictions – when consensual sex with girls below a minimum age constitutes statutory rape, the same act with a similar aged girl goes unsanctioned by the protective mantle of “marriage”.[24] Child marriage is clearly in violation of the rights of the girl child, who, by law, is entitled to be free from all forms of discrimination, degrading treatment, slavery and exploitation. The weft of legal provisions that emanate from international human rights law, constitutional guarantees of gender equality and gender friendly law offer these rights, but sadly, implementation is lacking.

Taking a leaf out of the above project, the government later launched the Balika Samriddhi Yojna,[27] implementing a Cash-Transfer scheme for every instance where a girl’s marriage was delayed to after attaining majority, whereby a sum of money was payable to unmarried 18-year-old. The International Centre for Research on Women (ICRW) launched the Development Initiative for Supporting Healthy Adolescents (DISHA)[28] from 2004 until 2007. The program sought to create access to reproductive health information and education on life skills, providing youth-friendly reproductive health services, livelihoods training for the youth and community mobilisation towards fighting child marriage.  

This article is penned by Ashutosh Pandey

[1] Article 1, Convention on the Rights of the Child

[2] UNICEF, Child Marriage Information Sheet, May 2006

[3] United Nations Children’s Fund, the State of the World’s Children 2006, UNICEF, New York, p. 131.

[4] Birodkar, Sudheer, “Hindu Social Customs” http://www.hindunet.org/hindu_history/sudheer_history/practices1.html

[5] United Nations Children’s Fund, The State of the World’s Children 2006, UNICEF, New York, p. 131.

[6] Supra 4

[7] Time Magazine, Why is it so hard to combat child marriage? http://world.time.com/2012/06/28/whyisitsohardtocombatchildmarriage/#ixzz263RnPD4J

[8] Prohibition of Child Marriage Act (2006), Section 2(a) (India).

[9] Child Marriage Restraint Act (1929), Section 2(a) (India).

[10] Prohibition of Child Marriage Act (2006), Section 16(1) (India).

[11] US Department of State, Bureau of Democracy, Human Rights and Labour, Country Reports on Human Rights

Practices for 2012: India (2012), http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204399.

[12] Prohibition of Child Marriage Act (2006), Section 3 (India).

[13] Prohibition of Child Marriage Act (2006), Section 3(3) (India).

[14] Prohibition of Child Marriage Act (2006), Section 12 (India).

[15] Prohibition of Child Marriage Act (2006), Section 9 (India).

[16] Prohibition of Child Marriage Act (2006), Section 10 (India).

[17] Prohibition of Child Marriage Act (2006), Section 11 (India).

[18] Prohibition of Child Marriage Act (2006), Section 11(2) (India).

[19] Amnider Kaur v. State of Punjab, Punjab-Haryana High Court (November 27, 2009),

[20] Bholu Khan v. State Of Nct Of Delhi, Delhi High Court (February 1, 2013),

[21] SEE, E.G., Kanwaldeep Kaur Bhathal v. Mandeep Singh Brar, Punjab-Haryana High Court (January 14,

[22]  Indian teenager annuls her child ‘marriage’, BBC News (April 25, 2012), http://www.bbc.co.uk/news/world-asia-india-17838022.

[23] Prohibition of Child Marriage Act (2006), Section 1(2) (India); see also Mohd. Nihal vs State, Delhi High Court (July 8, 2008).

[24] UNICEF, Background paper for UNICEF Report on State of the World’s Children, 2007

[25] INTERNATIONAL CENTRE FOR RESEARCH ON WOMEN – MOTIVATION TO PREVENT CHILD

MARRIAGE- http://www.icrw.org/media/news/motivation-prevent-child-marriage.

[26] INTERNATIONAL CENTRE FOR RESEARCH ON WOMEN – MOTIVATION TO PREVENT CHILD

[27] The Balika Samridhi Yojna http://wcd.nic.in/BSY.htm

[28] Anjala Kanesathasan, Laura J. Cardinal, Erin Pearson, Sreela Das Gupta, Sushmita Mukherjee, Anju

Malhotra, Catalyzing Change: Improving Youth Sexual and Reproductive Health through DISHA, an

Integrated Program in India (2008) http://www.icrw.org/publications/catalyzingchange

[29] ICRW, Improving the Reproductive Health of Married and Unmarried Youth in India, http://www.icrw.org/files/publications/ImprovingtheReproductiveHealthofMarriedand

UnmarriedYouthinIndia.pdf

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