Child Marriage and its Legal Provisions in India (Article)

Introduction

A child is a most beautiful creation of god and childhood is the most enjoyable and lovely phase of life of a person. Child marriage is a marriage that occurs prior to the age of marriage recognised by law and it tears down the childhood of a boy and a girl. Child marriage is solemnised because of reasons like poverty, dowry, reinforce, social ties, customs ( belief that it provides protection to the girl ) ,etc.

Legislation

The Child Marriage Restraint Act, 1929 [REPEALED] or Sharda Act was purported to 

restrain the solemnisation of marriage between two individuals when their age is below the age 

limit prescribed in the Act. Initially the age limit was 14 years for females and 18 years for males. The age limit for females was raised to 15 years by an amendment to the Act in 1949. Another important amendment was brought about in 1978 when the age limit for both girls and boys was raised to 18 and 21 years respectively.

Punishments under this act

1.  Male adult below twenty-one years of age marrying a child.—Simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both.

2.  Male adult above twenty-one years of age marrying a child.—Simple imprisonment which may extend to 3 months and shall also be liable to fine.

3.  Solemnising a child marriage.—Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to 3 months and shall also be liable to fine .

4. Parent or guardian concerned in a child marriage.—

 (1) Whenever person in charge of child negligently fails to prevent solemnization of this type of marriage or permits it, shall be punishable with simple imprisonment which may extend to 3 months and shall also be liable to fine.

(2) Negligence ( in preventing the marriage) is presumed on the part of  person having charge of the child.

Lacunas in this act

1. Less effective and difficult to implement.

2. Limited cognizable nature of offences.

3. No cognizable of offence after expiry of one year from the date of commission of offence.

4. Unable to provide proper provisions pertaining validity of the child marriages.

The Hindu Marriage Act, 1955 constitutes the major marriage law in India as it applies to the majority of citizens who are Hindus. Section 5 of the act lays down certain conditions for solemnization of valid marriages among Hindus. The clause (iii) of section 5 requires that at the time of the marriage bridegroom should have completed 21 years of age and the bride, the age of 18 years. Initially the ages prescribed were 15 years and 18 years for the bride and the groom respectively. The Act also states void and voidable marriages in section 11 and 12 respectively. According to this act, marriages which contravenes the requirement of age as laid down in section 5(iii) would continue to be perfectly valid till the time either of the parties chooses to get it annulled. There is an option of repudiation available to minor wives i.e girl child under Section 13(2)(iv) of this act.

Punishments under this act (related to child marriage)

1. In the case of contravention of the condition specified in clause (iii) of section 5, with

rigorous imprisonment which may extend to 2 years or with fine which may extend to 1 lakh rupees, or with both.

Another similar legislation namely The Special Marriage Act, 1954 constitutes law for special marriages in India. Section 4 of the act lays down certain conditions for solemnization of valid special marriages among the citizens of India. The clause (c) of section 4 requires that the bridegroom should have completed 21 years of age and the bride, the age of 18 years at the time of marriage. The act also states void and voidable marriages in section 24 and 25 respectively. According to SMA, a marriage solemnised in contravention of any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 is void.

Muslim law prescribes the minimum age ( at the time of marriage) as that at which one attains puberty. Option of repudiation of marriage to minor wives is available in Muslim law aslo, under section Section 2(vii) of The Dissolution of Muslim Marriages Act, 1939 wherein she can obtain a decree for dissolution of her marriage after attaining the age of 15 years and before attaining the age of 18 years. 

The previous law titled Child Marriage Restraint Act, 1929 is referred to as a non performing piece of legislation because of its weak nature. It had provisions only for restraining the solemnization, not for prohibition or prevention of child marriages.

The present law- Prohibition of Child Marriage Act was introduced in 2006 ( to address the weakness inherent in the former legislations ) has a threefold purpose given as follows:    

1. Prevention of child marriages.

2.  Protection of children involved.

 3. Prosecution of offenders.

 PCMA came into effect from 1 November 2007, replacing the Child Marriage Restraint Act (CMRA) of 1929 or Sharda Act.

The salient features of this act –

1. This Act made the child marriage voidable at the option of the contracting party to the 

marriage, who was a child at the time of the marriage. Petition can be filed at any time for decree of nullity of marriage but should be before completition of two years of attaining majority.

2. The Act also allows for maintenance and residence for the girl till her remarriage from 

the male contracting party or his parents.

3. All offences under the Act have been made as cognizable and non-bailable.

4. The Act further allows for injunctions to prohibit child marriages including ex-parte 

injunctions and also declares any child marriage solemnized in contravention of an 

injunction order as void.

5. Perhaps the most important change introduced by the Act is the declaration of child marriage to be null and void under certain circumstances involving 

kidnapping, abduction or trafficking of the minor.

Punishments under this act

1. Male adult marrying a child.—Rigorous imprisonment which may extend to 2 years or with fine which may extend to 1 lakh rupees or with both. 

2. Solemnising a child marriage.—Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to 2 years and

shall be liable to fine which may extend to 1 lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage. 

3. Promoting or permitting solemnisation of child marriages.—

(1) Whenever person in charge of child negligently fails to prevent solemnization of this type of marriage or permits it, shall be punishable with rigorous imprisonment which may extend to 2 years and shall also be liable to fine which may extend up to 1 lakh rupees.

Provided that no woman shall be punishable with imprisonment.

(2) Negligence ( in preventing the marriage) is presumed on the part of  person having charge of the child.

Case Laws

In P. Venkataramana v. State, AIR 1977 AP 43, the full bench of the Andhra Pradesh High Court held that any marriage solemnized in contravention of section 5 (III) i.e between two minors is neither void nor voidable and is perfectly valid. 

In Sivanandy v. Bhagavathyamma (AIR 1962 Mad. 400), it was held that a marriage under the Hindu law of a minor male is valid even though no consent of the parents or guardians was obtained.

 Marriages under the Hindu law is a sacrament and not a contract. The minority of an individual may operate as a bar to his/ her incurring contractual obligations, but it cannot be impediment in the matter of performing necessary sanskars'. According to the doctrine of factum valet, a fact cannot be altered by a hundred texts. In the case of minor/ child marriage the doctrine was that the factum of marriage, which was solemnized, could not be undone by reason of a large number of legal prohibitions to the contrary. In old Hindu law, such marriages were perfectly valid.

 

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References:

1. Child Marriage Restraint Act, 1929 [REPEALED]

2. Hindu Marriage Act, 1955

3. Special Marriage Act, 1954

4. Dissolution of Muslim Marriages Act, 1939

5. Prohibition of Child Marriage Act, 2006

 - Nikhil Singh

Maharaja Agrasen Institute of Management Studies.