CHILD MARRIAGE – ILLEGAL BUT STILL PREVALENT

The face that should’ve been lit up with hopes and dreams has yellow turmeric smeared all over it; the tender hands covered in henna should’ve been holding books and pen; the little feet which should’ve been dancing with innocence are bound by toe rings and anklets.
Behind these colourful rituals that look like little games to the innocent minds, hides the monstrous truth of this society.

INTRODUCTION

Child marriage is a gross human rights violation. This evil practice affects both boys and girls, but it affects females disproportionately. Child marriage not only violates children’s rights but also puts them on a risk of violence and physical and mental abuse. Child marriage can be defined as a marriage solemnized between two people out of which one or both have not reached the age of majority. The law in India states that this age is 18 years for girls and 21 years for boys. These rulings are legislated under Section 18 of Hindu Marriage Act (1955). Despite this 4% of boys and 27% of girls in India are married before they turn 18. These numbers not only violate the Hindu Marriage Act but also fundamental rights like the right to equality, right to dignity and right to life, enshrined in Article 14 and 21 of the Constitution of India. Such large scale violation of law is of grave importance for women and child welfare and should be much higher on the political agenda.

One out of three child brides in the world live in India. 102 million out of the country’s 233 million child brides were married before they turned 15 year old. Different geographical locations can have a very big effect on the drivers of child marriage because of the difference in culture and religious believes. Its prevalence varies across various states and UTs. Rates of child marriage are much higher in the North-West region of the country than the South-East India.More than half of the child brides in India reside in just five states: Uttar Pradesh, Bihar, West Bengal, Madhya Pradesh and Maharashtra. And over 40% of these young brides belong to Bihar and West Bengal, compared to less than 5% in Lakshadweep. The Health Ministry conducted the District-Level Household and Family Survey (DLHS), according to which Bihar was reported as the worst state for child marriages where nearly 70% of women in their early twenties were reported having been married by the age of 18 years; the best state is Himachal Pradesh with this percentage at 9% only.

The majority of child brides give birth before they complete adolescence. Nearly 16 million girls get pregnant between the age of 15 and 19 years. Such great numbers violate the right to health, as recognised by the World Health Organisation. The WHO says that pregnancy before the age of 20 can be dangerous and is harmful to the health of the young girls and can leave long term consequences.

REASONS BEHIND THIS PRACTICE IN INDIA

Traditional Practices – Many of the customs and cultures believe in early marriage of girls. According to the Dharmasutras, a girl should be married off when she attains puberty. The Manusmriti puts the responsibility on the father to marry off her daughter and if he fails to do so he has not fulfilled his responsibilities. During the periods of Sultans, the practice of chid marriage became prevalent and they considered the status of women to be very low. Patriarchal norms have always been superior in Indian society and they have always considered women to be belonging to first their family to give away and then to her husband’s family; there has never been an emphasis on her self development and education. Many communities don’t believe in education for girls and their tradition deems girls just to be fit for reproduction and house making. Girls are expected to be docile, hardworking, obedient, adaptable and talented wives. Religion based customary laws are a major barrier in eradication of child marriage.

Poverty – Child marriage is much more common among poor households. Poor families see girls as an economic burden and are eager to get rid of her and the boy’s family see her as a free help. Many girls are married at young age because less dowry is demanded for younger brides. Moreover the poorer the household, the less educated the family is likely to be and lack of education leads to the parents not being aware of the ill-effects of such practices. Poor families see the investment on the education of their daughters as a waste and to avoid paying her expenses they marry her off at a young age.

Girls in Rural areas – Gender inequality is much more prevalent in rural areas. This is due to the long standing backwardness and marrow mindedness of the people living in such areas. According to the DLHS reports, around 48% of women who are married in the age group of 20-24 year age group got married before the age of 18 in rural areas, compared with 29% in urban areas.

Control over women’s sexuality – Until the time a girl is married, her chastity is considered to be the marker of her father’s and family’s honour. This gives a reason to men to marry off their daughters early. In some communities and castes, there can be a huge pressure on the family to marry the girls at puberty. Some girls are even ‘promised’ in marriage even before they’re born or are of very little age, in order to ‘secure’ their future. And once they reach puberty they are sent off to their husband’s house to commence a married life.

Education level –Girls more likely to be married early are mostly living in poor households, belonging to rural areas and have little to no education. According to research by UNICEF, women with different levels of education show the largest disparities in prevalence of child marriage. Many communities consider girls as parayadhan (someone else’s wealth). Meaning that girl’s abilities are only useful to her marital house and hence educating her is seen as less of a priority then educating the sons, who in future are supposed provide for their family and take care of the parents. A girl who is educated is more likely to be aware of her basic rights and can hence prevent her and even others from this practice. Girls with absolutely no education are about six times more likely to become child brides than those with basic education of 10 years or more.

Abuse and Violence against girls – Since medieval times, safety of girls and fear of them getting raped or abducted has been a big concern. And even today many girls are married off at a young age due to great lack of safety and the fear of violence and crime against girls especially in public places. Marriage is considered by many as a preventive measure against rape, extra marital affairs and children born out of wedlock.

THE ILL-EFFECTS OF CHILD MARRIAGE

Health complications – A young girl’s body is not fully developed to engage in sexual activities neither she’s fully aware of her own body and the changes occurring in it. Sexual intercourse can cause a lot of pain due to physical immaturity of the girls. Child marriages lead to early pregnancies, for which young girls are neither physically or mentally ready and hence it results in many health complications.
Mental distress – Young girls’ minds are not developed enough to endure the pressure of managing families.They have to go through intense traumas and responsibilities at a young age and this deprives the young minds off of their childhood innocence and happiness.
Age difference between bride and bridegroom –In most of the cases the bride is minor and the groom is an adult, this can be seen as hidden pedophilia and can result in unreported sexual abuse. The girl is only expected to obey the orders of her husband and his family, and is hence deprived of her freedom.
Honour Killings – There is a prevailing threat holding young girls back from fighting the evil of child marriage i.e. honour killing. Their fighting back is seen as scarring to the honour of family name and reputation, and hence to prevent this bubble of honour created by social pressure, the families resort to such heinous crimes.
In pre-independence India, the organised women activists took up Child Marriage as the first major social reform issue. Women played a major role in developing dialogue and using political and legislative measures to raise awareness. In early 1930s many bills addressing the age of consent were introduced in the legislature of India and were all defeated. R.S. HarbilasSharda, in 1927 introduced Hindu Child Marriage bill in the Central Legislative Assembly. The Women’s Indian Association, National council of women in India and All India Women’s Conference through their members and even the Muslim women raised dialogue and articulated arguments in favour of raising the legal age for marriage and consent.

The bill was passed by the Imperial Legislative Council on 28th September 1929 and became a law on 1 April 1930 extending to the whole of British India.

THE CHILD MARRIAGE RESTRAINT ACT, 1929-

This law fixed the marriageable age for girls and boys at 14 and 18 years respectively of all communities. This law extended to the whole territory of India except for Jammu and Kashmir. This was the first law focusing on the evil of child marriage in India but it still didn’t make the marriage void by itself. This law mainly prescribed punishment for male adult (between the age of 18 and 21 years) who marries a minor girl i.e. imprisonment that can only be extended to 15 days or fine of not more than thousand rupees. There was a punishment of imprisonment of not more than 3 months and minimal fine for an adult male above the age of 21 years marrying a child, the person solemnising the marriage and the parents or guardian of the parties to such marriage. Even with the existence of this law, there was not much substantive change because the punishment was very little and the fine was of very small amount. The act was amended now and then in order to raise the age limits and was amended in 1940 to raise the marriage age to 18 years for female and 21 years for males. However, this law remained a dead letter and it largely failed to achieve its objectives because of no fear in the public and lazy and ineffective implication practices of the government.

THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 –

This act can be seen as an amendment to the act of 1929, it was introduced to address the weaknesses of the previous legislations. Under this act, the prescribed marriageable age for a male is 21 years and for a female is 18 years. This act provides the girl who has entered into a child marriage the power of obtaining a decree of nullity within 2 years of attaining the age of 18 years.
This Act is armed with enabling provisions to prohibit child marriage, protect and provide relief to victims and enhance the punishment for those who abet, promote or solemnize such marriage. This Act also calls appointment of a Child Marriage Prohibition Officer by the State government.

The law also provides for provision of maintenance for the girl in a child marriage; allows the party to the marriage, who was a child at the time of getting married to legally annul it; treats children born out of child marriage to be legitimate, and makes provisions for their custody and maintenance, and; considers certain kinds of child marriages where there was a force or trafficking as marriages which legally never happened.

Under this law it is a crime to attend or take part in a child marriage ceremony (as a parent or guardian); to allow, encourage or fail to stop a child marriage (as a parent or guardian); to perform or help with a child marriage in any way; for an adult male to marry a girl below the age of 18 years.
One can directly go to a District Court and write an application- the judge can pass an order directing the people involved to not to take part in the child marriage.One can also go to a Child Marriage Prohibition Officer for getting guidance and help with annulling a child marriage.

WHY THE STRUGGLE IS STILL NOT OVER?

Reason behind this can be the inconsistencies between PCMA and other personal laws –
Under Hindu Marriage Act, 1956, there are no specific provisions provided for punishing the parents or people who solemnized a child marriage. If a girl wants to get her marriage annulled it can only be done if she got married before attaining the age of 15 years and she challenges it before turning 18.

Under the Muslim Personal Laws, the age of marriage is the age of puberty i.e. 15 yearsand there is no bar to child marriage. After getting married the couple has an “option of puberty” known as Khayar-ul-bulugh in which they can repudiate the marriage after attaining puberty. However this can only be done if they are under eighteen years of age and the marriage has not been consummated.
Indian Christian Marriage Act (ICMA) provides that a preliminary notice is to be issued 2 weeks prior to the commencement of the marriage, if the marriage is being contracted between minors. After the expiration of this period of 14 days, the parties to the marriage can proceed with the marriage without any consent of their guardians.

Under Parsi Marriage and Divorce Act (PMDA), child marriage is invalid. However, the Act is silent regarding age where the provisions for an invalid marriage are listed.

Under the Jewish law, that is uncodified, the marriageable age is the age of puberty which is fixed at 12 years.
The judicial pronouncements have time and again highlighted the superseding effect of secular law over the personal law. However, inconsistencies can be seen between the judgements of various high courts. The Delhi High Court in Lajja v State held that the PCMA prevails over personal laws. The same was reiterated by Karnataka High Court in SeemaBeghum v Statein 2013. However in 2014, in Yusuf Ibrahim Mohammad Lokhat v State of Gujarat observed that “According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents”. The Madras High Court in 2015 declared that PCMA applies to every community and is not against Muslim law. There are no judgments by Supreme Court to settle this point. Thus, a state of ambiguity and inconsistency can be seen.

“Lets stop living in the age of darkness and turn on the lights,
The practice of child marriages is a violation of human rights,
Let us fight this practice together for the sake of humanity,
Lets save young children from this twisted practice of insanity!

-Daya Nandan

CONCLUSION

With greater laws and increasing knowledge and understanding, India has come a long way in tackling the evil of child marriage. India has made some robust laws in this area. Our country is committed to eliminating child, early, and forced marriage by 2030 in line with target 5.3 of the Sustainable Development Goals (SDGs).

The National Family Health Survey (NFHS) shows that the prevalence of child marriage has dropped from 58% in the 1970s to 21% in 2015-16 (NFHS-4). The median age of marriage for women has also increased, from 17 years in 2005-06 to 19 years in 2015-16.
However, despite the noticeable change, child marriage still persists in India. India has the highest absolute number of women married or in a union before the age of 18 in the world – 15,648,000. Tackling and ending the menace of child marriages in a big and complex country like India, which has diverse cultures, religions, casts and communities as well as an array of overlapping laws – is no child’s play. But yes, we can try and create an ecosystem that is enabling and involves all the stakeholders. This ecosystem should be equipped to help prevent school dropouts at young age, ensure higher retention, promote higher education, give stricter punishments and inform and educate people about the ill effects. Educating our girls is the most important step needed to fight this problem. For this education should be made available, accessible and affordable to all girls, as when you educate a girl, you educate the whole family.
Human rights activist Archbishop Desmond Tutu aptly summed it up, “Let girls be girls, not brides.”

By-
Anjali Banga
Department of Laws (3 years), Panjab University, Chandigarh