Laws of India related to child marriage

Law
13-Jul-2022
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Since ancient times, young children and teenagers in India have been married off much before reaching physical and intellectual maturity. Many factors, including economic necessity, masculine guardianship of their daughters, childbearing, or repressive traditional values and customs, may lead to some parents' consenting to their children being married young. According to UNICEF, child marriage refers to both official marriages and informal unions in which minors under the age of 18 live with a partner as if they are married. It is defined as the union of a girl or boy before the age of 18.

In India, a child is defined as "a person who, if a male, has not reached twenty-one years of age, and if a female, has not completed eighteen years of age" under The Prohibition of Child Marriage Act, 2006. Additionally, this statute proclaims that any marriage performed between individuals who are younger than the legal marriage age is void. The law also lays forth penalties for several offences, including permitting or carrying out child marriages between minors or getting kids married to adults. Despite this, child marriage continues to be pervasive across the country.

The average age of marriage is still lower than the legal age of eighteen for females in states like Rajasthan, Uttar Pradesh, Madhya Pradesh, Jharkhand, Chhattisgarh, Bihar, and Andhra Pradesh. Despite the implementation of child protection laws in India, states with a high population density are also those where child marriage is most prevalent. Adolescent brides in India are likely to be fertile and have many unintended pregnancies, which has serious consequences for population management.

Child Marriage Act 2006

In India, child marriage has always been a problem. It has been a difficult war to win because of its roots in traditional, cultural, and religious practices. Child widowhood and dowry are two additional issues linked to child marriage. Additionally, it is linked to undernourishment, mothers' poor health, excessive fertility, and hence overpopulation. The act is described in more detail below.

The Prohibition of Child Marriage Act, 2006, was passed as a replacement for the outdated Child Marriage Restraint Act, 1929, which was unsuccessful. The Act intends to prevent child marriages with stricter penalties of two years in prison and/or a fine of INR 1 lakh. A child is defined as a male or female who is younger than the age of 21 and 18, respectively. 

According to the Majority Act, a person who has not reached the age of majority is considered a minor. The maintenance of the girl child is covered. If the husband is a major, he is responsible for paying the maintenance. The husband's parents would be responsible for paying maintenance if the husband is a minor. A child marriage's legal standing may be revoked at the parties' discretion.

The marriage would be null and void, however, if the consent was obtained through deception, deceit, or if the child was lured away from his legal guardians and if the only intention was to use the child for trafficking or other immoral reasons. Additionally, the Act calls for the establishment of a Child Marriage Prohibition Officer, whose responsibilities include preventing child marriages and raising awareness of them.

Implementation Challenges of 2006 Act

Since 1978, 18 has been the legal age for girls to get married. However, NFHS-5 (2019–21) reports that the rate of underage marriages is still significant, with 23% of women in the 20–24 age range getting married before turning 18. However, only 785 of these marriages were detected in 2020, which is a low number by any standards. This demonstrates that efforts to prevent girls under the age of 18 from getting married have had only modest effectiveness. This begs the question of whether the minimum age rise would significantly effect the decline in child marriages.

While the causes of child marriage differ between nations and cultures, UNICEF claims that poverty, a lack of educational opportunities, a lack of access to quality healthcare, all contribute to its continuation. The practise of child marriages is mostly caused by the prevalent social customs, tradition, illiteracy, poverty, poor status of women in society, and lack of awareness, according to information provided to Lok Sabha by the Minister of Women and Child Development in March 2020. The Minister stated that these problems cannot be resolved alone through legislative action.

Inconsistencies between different personal laws and secular laws

Prohibition of Child marriage Act, 2006

According to PCMA, a female must be 18 years old to be married, while a male must be 21. Within two years of turning 18 years old, a girl who married while she was younger can request a decree of nullity.

Hindu Marriage Act, 1956

Even if they did not consent to the union, only the parties to a child marriage are penalised under the Hindu Marriage Act. The parents or those who performed the marriage ceremony are not subject to punishment. Only if a girl was married off before becoming 15 and challenges the marriage before turning 18 can the marriage be dissolved. There isn't a specific clause that forbids juvenile marriage in general.

Muslim Personal Law

In India, Islamic law is not codified. Therefore, its provisions are founded on how scholars have interpreted the Quran. The Muslim law does not prohibit child marriage. A guardian may arrange for a child's marriage. The couple does have the "option of puberty," or khayar-ul-bulugh, which allows them to annul their marriage once their children reach puberty. They may only do this, though, if the marriage has not yet been completed and before they reach 18 years old. According to Muslim law, a person must be 15 years old to get married. However, marriage before the age of seven is void from the start, even if it is arranged by a legal guardian.

Indian Christian Marriage Act (ICMA)

If a marriage is to be contracted between minors, ICMA mandates that a preliminary notice be given 14 days before the wedding. The parties may proceed with their marriage without their guardians' permission after the aforementioned time limit has passed.

Other individual laws

A child marriage is prohibited by the Parsi Marriage and Divorce Act (PMDA). The Act, however, makes no mention of age when the conditions for an invalid marriage are specified. Jewish law is not codified in India. According to it, the age of puberty, which is set at 12 years old, is the marriageable age.

Conclusion

The Indian government has suggested increasing the minimum age for marriage for women from 18 to 21 years old. At the moment, men and women must both be at least 21 years old to legally get married.

On December 21, 2021, a bill to formally codify this legal change was introduced in the Lok Sabha. However, following opposition party resistance, it was forwarded to a parliamentary commission for additional review. According to the proposed legislation, the new minimum age for marriage for women shall supersede all other personal laws; as a result, legal age of marriage for all females will be raised, regardless of their religious affiliation.