Child marriage means “a marriage to which either of the contracting parties is a child”. 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”. Many a times, in discussions and discourses, terms like ‘early marriages’ or ‘forced marriages’ are also used to described child marriages. ‘Early marriage’ describes a marriage that occurs prior to the age of marriage recognized by law and the term ‘forced marriage’ highlights the lack or incapacity to give consent on the part of child contracting party to marriage, due to minority.
I. ORIGIN OF THE CHILD MAARIAGE CUSTOM
The origin of the custom of child marriage remains obscure and there is uncertainty about the time period in which this social evil manifested itself initially. Under the uncodified Hindu law, as per Mitakshara, the capacity to marriage was attained on the completion of the sixteenth years and as per Dayabhaga, on the completion of fifteenth year. During the British period, the British customs and thoughts inspired the reformist movement against the child marriage. It was in fact the first law commissioners, who drafted the Penal Code in 1846, who had first conceived the idea of making sexual intercourse between the husband and the wife, below 10 years, an offence. After the notorious case of Queen v. Haree Mohan Mythee in which an 11 years old girl died due to the injuries received by the sexual intercourse with his 35 years old husband, the movement against child marriage picked up its due velocity. In 1891, the age of consent to sexual intercourse was raised from 10 years to 12 years by the Criminal Law (Amendment) Act, 1891to ensure that female children are protected from immature cohabitation. Towards the end of last century, public attention was increasingly directed towards the improvement of the physique of nation and the reduction of causes for abnormal mortality. As a consequence thereof, in 1929, the Criminal Law (Amendment) Act30further raised the age of consent from 12 to 13 years in case of married girls.
In 1927, Hari Singh Gour had introduced a Bill to raise the age of consent to 14 years, in case of married girls. The Age of Consent Committee was appointed to consider the Bill and to analyse the societal impact, which the earlier amendment had brought about. The committee recommended that the enactment of a law penalising marriages below a certain age and also made a very confusing suggestion that the validity of marriages in contravention to such marriage law should be left unaffected. In the same year, Rai Sahib Harbilas Sarda introduced a Bill to restrain the solemnization of child marriages among Hindus, by declaring such marriages invalid when either of the parties was below the prescribed age. The Bill finally culminated into the Child Marriage Restraint Act, 1929 which is popularly called ‘Sarda Act’, an Act named after the person who had introduced the Bill.
II. LEGISLATIVE PROVISIONS
The Hindu Marriage Act, 1955 (HMA)
The Act constitutes the major marriage law in India as it applies to the majority of citizens who are Hindus. The Act lays down certain conditions for solemnization of valid marriages among Hindus. The clause (iii) of section 5 requires that the bridegroom should have completed 21 years of age and the bride, the age of 18 years at the time of marriage. Initially the ages prescribed for the bride and the groom were 15 years and 18 years respectively. Before 1978, marriage below the prescribed ages could be solemnized with the consent of the guardian. With the Amendment Act, this provision became infructuous as the age for marriage was raised and the guardianship is not required in case of a person aged 18 years. So, the clause was deleted by the Amendment Act.
Apart from a valid marriage – the one which is solemnized in compliance with all the requirements as laid down in section 5 of the HMA, the Act contemplates void marriage (void ab initio) and voidable marriage(which can be declared null and void at the instance of the aggrieved party). A marriage solemnized in contravention of section 5 is either void or voidable depending upon the contravention of specific clauses of section 5.
It is quite peculiar that in the provisions of the Act, no particular fate has been assigned to the marriage which contravenes the requirement of age as laid down in section 5(iii). Thus, on a plain reading of the Act, the child marriage is neither void nor voidable as it is not covered by either of the categories. This omission to take care of the violation of this provision appears to be deliberate on the parts of the legislation. However, the Act contemplates penal consequences for the children whose marriage is solemnized. The punishment can extend to 2 years SI or with fine which can go upto Rs.1,00,000/- or both.
The Prohibition of Child Marriage Act, 2006 (PCMA)
Amidst the silent confusions of the Hindu Marriage Act, 1955, and the toothless provisions of The Child Marriage Restraint Act, 1929, the Indian society witnessed a growing demand for making the law on child marriage more effective with stringent punishments so as to eradicate or effectively prevent the evil practice of child marriages. Pursuant to the efforts of National Commission for Women, the National Human Rights Commission undertook a comprehensive review of the 1929 Act and made recommendations for comprehensive amendments. The Central Government, after consulting the State Governments and the UTs on the recommendations of NCW and NHRC, decided to accept all recommendations and give effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929. Consequently, The Prohibition of Child Marriage Act, 2006 came into being on January 10, 2007.
The silent features of this legislation are as follows –
i. The Act made the child marriage voidable at the option of the contracting party to the marriage, who was a child. However, since a girl is supposed to attain majority at the age of 18 years and a boy at 21 years, the woman can file a petition till she becomes 20 years of age.
ii. The Act also allows for maintenance and residence for the girl till her remarriage from the male contracting party or his parents.
iii. All the punishments contemplated under the Act are quite enhanced as compared to the 1929 Act. The punishment for a male adult marrying a girl child has been enhanced to 2 years or with a fine upto one lakh rupees or both.
iv. Similar punishments are prescribed for anyone who performs, conducts, directs or abets any child marriage. The same punishment is also prescribed for anyone who gets the child marriage solemnised or promotes the solemnization of such marriage or permits it to be solemnized or negligently fails to prevent such marriage and the guardian of such minor party to the marriage is also held responsible.
v. However, no woman can be punished under the Act which may not be a welcome step under all circumstances.
vi. All offences under the Act have been made as cognizable and non-bailable.
vii. The Act further allows for injunctions to prohibit child marriages including ex-parte injunctions and also makes any child marriage solemnized in contravention of an injunction order as void.
viii. Perhaps the most important change introduced by the Act is the provision which declares child marriage to be null and void under certain circumstances involving kidnapping, abduction or trafficking of the minor.
Although the 2006 Act gives a three-pronged formula regarding the validity of child marriage, the legislative confusion regarding the validity of child marriage is manifested in other legislations as well as the judicial decisions.
The Child Marriage Restraint Act, 1929
There are several instances in the world history where the law has been used to bring about social reforms. The Child Marriage Restraint Act, 1929, was also a step towards this direction and applied not only to Hindus but to all citizens of India. The Act purported to restrain the solemnisation of marriage between two individuals when they were below the age limit prescribed in the Act. Initially the age limit was 14 years for girls and 18 years for boys. The age limit for girls was raised to 15 years by an amendment to the Act in 1949. Another important change was brought about in 1978 when the age limit for both girls and boys was raised to 18 and 21 years respectively, primarily with a view to check the population growth in the country. It was also envisaged that rise in the age of marriage will lead to better health of the mother and the child.
The Act penalised an adult male for marrying a minor girl. If the adult groom was over 21 years of age, he was liable to be punished with up to 3 months SI with fine and in case, he was between 18 – 21 years of age, a punishment of a maximum of 15 days SI or a fine upto Rs.1,000/- or both can be imposed on him. No similar provision, however, existed for a female adult who married a minor boy, possibly because of such incidents being rare. A punishment of a maximum of 3 months SI with fine could be imposed on the parents or guardian for promoting or permitting the marriage to be solemnized or negligently failing to prevent it. It is interesting to note that no woman can be punished under the relevant section. Similar punishment can be imposed on a person, who performed, conducted or directed any child marriage to be solemnized. The Act prescribed two peculiar features – first – the limited cognizable nature of the offences. The offences were cognizable for the purposes of investigation, but the police officers could not make any arrest without warrant. Secondly, the court could not take cognizance of any offence under the Act, after expiry of one year from the date of its commission.
The court was empowered under the Act to issue injunction against the people involved in solemnization of child marriage. This power of the court was fettered as prior to the issuance of such an injunction a notice was to be given to the person concerned and an opportunity to show cause against the injunction was to be provided to him. The disobeyance of such injunction could entail the maximum of imprisonment of three months SI with fine to men only as no woman could be punished under the section.
The Act, though penalised could not affect the validity of the child marriage and the provisions were drafted in such a manner that true and effective implementation of the Act was rendered extremely difficult due to the socio-cultural set up of Indian society. There were too many procedural lacunae e.g. no cognizable of offence after expiry of 1 year from the date of commission of offence, limited cognizable nature of offences which allowed time to the culprits to stop solemnizing marriage well in time to escape punishment and no punishment to women etc. For the toothless provisions of the Act, it is also referred as an illustration of a non-performing piece of legislation.
III. JUDICIAL RESPONSE
The spirit of legislative policy of leaving the validity of the child marriage intact is kept alive by the judicial decisions also. Barring a few exceptional decisions, the judiciary has by and large put its seal of approval on the validity of child marriage. The High Court of Madras, way back in 1891, in Venkatacharyulu v. Rangacharyulu, while upholding the validity of child marriage observed:
There can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts, it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious ties prescribed for the purification of the soul. It is binding for life because the marriage rite completed by saptapadi …. creates a religious tie when once created, cannot be untied. It is not a mere contract in which a consenting mind is indispensible. The person married may be minor or even of unsound mind and yet if the marriage rite is duly solemnized, there is a valid marriage. The position was further clarified by the court in Sivanandy v. Bhagwathyamm,where it was pointed out that a child marriage though prohibited by CMRA is not rendered invalid by any provision therein and the 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. It was observed in that case:
A marriage under the Hindu Law by a minor male is valid even though the marriage was not brought about on his behalf by his natural or lawful guardian. The marriage under Hindu Law is a sacrament and not a contract. The minority of an individual may operate as a bar to his or her incurring contractual obligations. But it cannot be impediment in the matter of performing a necessary ‘samskars’. A minor’s marriage without the consent of the guardian can be held to be valid also on the application of the doctrine of factum valet
The doctrine of factum valet is quite well known and is duly acknowledged by the Hindu text writers. The relevant Sanskrit quotation is:
……a fact cannot be altered by a hundred texts. The doctrine in the case of a minor was the factum of marriage, which was solemnized, could not be undone by reason of a large number of legal prohibitions to the contrary
In Naumi v. Narottam,86the High Court of Himachal Pradesh held that the child marriage is valid as it is neither void nor voidable. In MohinderKaur v. Major Singh upholding the validity of child marriage on the same logic, the P&H High Court observed that the solemnization of child marriage is no defense to the claim of restitution of conjugal rights. However, in Budhan v. Mamraj, the court preferred the diametrically opposite approach and remarked while considering the issue of restitution of conjugal rights that a marriage may not be valid if performed in contravention of age requirement, but invalidity cannot be pleaded as an answer to a petition of restitution of conjugal right. Such a judicial interpretation was in sharp contrast to the earlier judicial trend and the general mass opinion in the society. This case was discussed in the 59th Report of the Law Commission and the commission tried to do away with the ambiguity created by this judgment by stressing that the general understanding was that the child marriage is valid marriage. The same approach was adopted by the High Court of Punjab and Haryana in Krishni Devi v. Tulsan also and the validity of child marriage was not recognized. The High Court of Andhra Pradesh decision in P.A. Sarramma v. G. Ganpatalu is considered to be a landmark and revolutionary decision as it was explicitly ruled by the court that a child marriage is void ab initio and in such an event, the parties need not go to the court for getting it declared null and void.
Unfortunately, the full bench of the same high court dissented from its earlier decisions in P. Venkataramana v. State of Andhra Pradesh and upheld the validity of child marriage fearing that declaring such marriage null and void will render the innocent children of such marriages bastards as the HMA confers legitimacy to children born of void and voidable marriages only. The Patna, Calcutta and High Court of Punjab and Haryana have followed this decision of High Court of Andhra Pradesh in their recent decisions. However, the High Court of Andhra Pradesh has again deviated from the settled trend of holding child marriage valid, in Katari Subba Rao v. Katari Seetha Mahalakshmi and held that if there is a marriage of a girl, who is below 12 years, it is a void marriage and cannot be treated as a marriage at all.
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