By Malavika Rajkumar
Post-Constitution laws and prevalent customs of India have come into conflict with each other over the decades. Child marriage has been declared illegal according to the provisions of the Prohibition of Child Marriage Act (PCMA), 2006.
This law seeks to prevent the solemnisation of child marriages. It also includes the prohibition of marriages between children below the age of 18 for a girl and the age of 21 for a boy.
A survey carried out by UNICEF in 2018 states that 7% of girl children marry by the age of 15 and 27% marry before the age of 18. The survey confirms the prevalence of child marriages in India, 69 years since the Constitution came into force.
The economic cost of a girl child is considered a ‘burden’ on families, and traditionally the attitude of many societies has been to marry them off as soon as possible. The reason cited is that the earlier you marry off a girl child, the lower the cost of dowry. In this practice, a girl child is reduced to a mere mathematical factor and her life is beholden often to a much senior stranger. She spends no time with her parents. This practice is followed despite the law prohibiting dowry.
In communities where the practice is widespread, the conventional belief is held that marrying off a girl child would prevent her from being subject to unwanted male attention or any form of sexual violence, thus “protecting” her chastity. But behind closed doors, many young brides are subjected to sexual violence by their spouses, often resulting in painful and forced sexual intercourse, multiple sexual health issues and pregnancies during puberty.
The role of the law
Initially, the Child Marriage Restraint Act, 1929, was brought into the statute books as a culmination of sustained pressure by social reform groups and conscientious individuals who campaigned against the adverse consequences of child marriage.
This Act, however, failed due to multiple reasons. These included the abysmal number of successful prosecutions and police officers requiring a warrant or an order from the magistrate to arrest offenders. The offence was also rarely reported since the Act itself prohibited complaints after the first year of marriage.
With the introduction of the PCMA in 2006, most problems of the old Act were legally addressed but the societal and cultural practice of child marriage persists. As the Karnataka State Consultation on Child Marriage discussed in March 2019, some reasons that account for the practice are lack of awareness of the existing laws and lack of proactive enforcement agencies and administration to tackle such situations.
Some loopholes/problems with the Act follow.
Burden on the child to challenge validity
Only the child bride/groom can file a petition to annul their marriage in their personal capacity. If the petitioner is statutorily a minor as per PCMA (girl below age 18, boy below age 21), the petition can be filed only through a guardian or the next best friend of the married child (who must be an adult of 18 years or more) with the help from the child marriage prohibition officer (CMPO). In theory, this form of access to justice seems ideal, but not in practice.
The primary reason for this is that children are not always placed in a position to approach their first point of contact, which is the CMPO. Many children face resistance and physical restrainment from their own families and threats of retribution for reporting the offence from their spouses and in-laws. This is a fundamental issue that needs to be addressed. If this is the ground level scenario, how can children approach the CMPO or even the court?
Another challenge is convincing the guardians of the children to annul the marriage. Guardians also are conditioned by societal norms and prejudices surrounding the issue of child marriage. And in many scenarios, it is the guardians who push the children into forced marriages at a tender age. The chances of a child having a “next best friend” who is an adult are also highly unlikely.
Officers are not punished for dereliction of duty
The PCMA does not punish CMPO’s for dereliction of duty. This results in a lack of accountability, thereby causing problems for children attempting to access justice. In situations where the children manage to approach them, CMPO’s usually require the parents to sign a statement/undertaking promising them not to go through with/force the marriage. After this document is signed, the children are sent back to their families, who continue to force them to marry.
CMPO’s also redirect complaints to other designated officers under other laws such as protection officers under the Domestic Violence Act, 2005, who in turn send them back to the CMPO. This bureaucratic hurdle significantly impairs the effective implementation of the PCMA.
The CMPOs also suffer from the failings of underreporting by ignoring or refusing to register complaints despite having knowledge of areas or communities where the practise still exists. Tragically, this leads to justice being denied for the children or complainants involved.
In other legislations such as the Protection of Children from Sexual Offences Act (POCSO), 2012, officers are punished for dereliction of their duty, making them more responsible and liable for their work. The lack of such disciplinary checks is systemically failing all victims of child marriage.
Inconsistencies with personal laws
Personal law immunities also hinder the implementation of the PCMA. Since personal laws of certain communities still allow child marriages, and the PCMA simultaneously tries to prevent them, the conflict leads to significant legal complications.
For example under Muslim personal laws, children are allowed to get married as long as they have attained puberty, around the age of 15. This is a direct contravention of the PCMA, but courts have taken opposite stances on whether an offence under the PCMA is made out or not.
The Punjab and Haryana high court in Mohd. Samim V State of Haryana and Ors stated that such practices are not illegal and do not fall under the purview of the PCMA. The court has stated that Muslim laws do not prevail over PCMA and marriages below the age of 18 are illegal and punishable under the PCMA.
Registration has not been made compulsory
Registration of marriages has not been made compulsory under the PCMA, thus leading to a lot of unreported child marriages. The Law Commission’s report in 2017 titled ‘Compulsory Registration of Marriages’ and the Supreme Court in Smt. Seema Vs. Ashwani Kumar observed that compulsory registration of marriages in each state would be a step in the right direction. They said child marriage was still prevalent in many parts of the country.
Now that states have made marriage registration compulsory, marriages officers and registrars have the duty to intimate to the CMPO about child marriages. Better coordination and communication between agencies concerned with the protection of child rights and the statutory authorities under the PCMA is, therefore, the need of the hour.
In the Supreme Court landmark 2017 decision in Independent Thought v Union of India, it was laid down that sexual intercourse by a man with his wife who is less than 18 years of age amounts to rape under the Indian Penal Code, 1860. This judgment not only discourages child marriages as FIRs are registered against many men within child marriages for rape, but also allows child brides to seek relief for annulment of their marriages.
The groom gets booked under the provisions of both the Indian Penal Code for rape and/or POCSO for child sexual abuse and the provisions of Juvenile Justice Act, 2000 (in cases of minors). This judgment also negatively impacts child brides who voluntarily choose to marry grooms without the permission of their parents/guardians, who, in reaction, file FIRs against the groom to stop the marriage.
The Independent Thought judgment is only the first step in a long journey to rid the country of child marriage. For better implementation of the existing laws on child marriages, a proper check on the role of the authorities is essential as they are the first point of contact to prevent such acts of marriage.
Child marriage not only affects the basic rights to freedom and life, but also has an impact on the reproductive health of a girl child. The rate of both maternal and infant mortality rate is high in cases of child marriage. The underlying problem of sexual abuse of children is detrimental and prevents society from protecting their children. This social evil must be rooted out through the legal route, with stricter penal provisions and accountability checks for authorities established under the PCMA Act. Lawmakers and law enforcers must address this issue of vital importance to make sure that children are protected and kept safe.
Malavika Rajkumar is a legal content analyst with Nyaaya, an initiative of Vidhi Centre for Legal Policy, New Delhi.
Originally published at https://thewire.in.
