Introduction
The Supreme Court has in its recent order said that it will revisit the issue of “whether female adolescents as young as 15 years old form a wedlock based on custom or practices of personal law when such weddings are in contravention of secular laws?” Thus, it becomes intriguing to learn the circumstances that led to the Supreme Court re-examining the situation. The uncalled stir made by the Punjab and Haryana High Court in a recent order that “a girl, on attaining puberty or the age of 15 years and above, could be married on the basis of Muslim Personal Law, irrespective of the provisions of the POCSO Act, 2021” has opened up new avenues of debates on child marriages. This order has been issued at a point in time when the government amended the legislation prohibiting child marriage, which will supersede any personal laws based on religion concerning child marriages. In light of the aforementioned, this blog seeks to learn the status of secular and personal laws on the subject at hand as well as the positive aspects of the amendment bill. It also aims to analyse the most recent developments in child marriages.
Personal Laws—the bedrock of child marriages
The origins of child marriages under personal laws remain obscure and uncertain as most of the provisions and practices therein had their roots in protean of ancient texts and scripture evolved over the period of time. The practices and customs that evolved during that era are based on the orthodox mindset of patriarchal societies prevalent at that time. On this pretext, a semblance of the same patriarchy can be seen under the personal laws drafted at the time of the independence. To put it another way, these patriarchal tragedies may be found in the Muslim personal laws, as well as in some of the sections of the Hindu Marriage Act.;
1. Child marriage under the Hindu marriage act
Under the Hindu Marriage Act, 1955 (hereinafter HMA), section 5(3) stipulates that the male should have completed at least 21 years and the female 18 years as a condition for a valid Hindu marriage. However, marriage in contravention of the same is not void under section 11 of the HMA which categorically makes marriages in contravention of sections 5(1), 5(4), and 5(5) void or invalid marriages. Further, to make the situation worse for minors, section 12 of the HMA does not make ‘child marriage’ a valid ground to nullify it later. However, it does provide a punishment under section 18(b) for the contravention of section 5(3) as a condition for a valid marriage, the HMA neither put child marriage under the category of void marriages nor voidable marriages, which in turn gave birth to distorted jurisprudence on the child marriages under the HMA.
2. Child marriages under Muslim personal laws.
The condition of minors under Muslim personal law is even worse in comparison to Hindu personal law as the HMA neither makes child marriages void nor valid which gives the Indian courts a free hand to liberally interpret child marriages as per changing standards of society. But as Muslim personal law has its root in long in the tooth Quran, most of the customs and practices followed by the Muslim Jurisprudence are antiquated—further, these customs and practices cannot be subject to Article 13 of the Constitution on the ground that they violate fundamental rights of the minors as same are excluded from the clutches of the constitution.
The uncodified Muslim personal laws lay down the age of puberty—tentatively 12 to 14 years—as a valid age for marriage. Although the age of the marriage under Muslim personal laws cannot be increased due to constitutional limitations but can be subject to the surrogate branch of the constitution i.e., the Dissolution of the Muslim Marriage Act (hereinafter DMMA). As per section 2(7) of DMMA, the Muslim woman can dissolve her marriage if the same is performed before she attained 15 years of age, but she has to repudiate her marriage before she attains 18 years of age, provided the marriage is not consummated. Although section 2(7) of DMMA gives Muslim women an option to nullify the marriage, the conditional bar—consummation—put by the legislature makes the scope of it limited as the same can be exploited by the relatives and in-laws of the female minor to prevent her to break the shackles of imposed marriage. Further, the legislature also failed to consider the instances of marital rape as there is no section under the DMMA specifying that consent is necessary for the consummation of the marriage.
Secular Laws—A pool of uncalled intricacies.
The issue of increasing the marriageable age is pestering Indian Jurisprudence even before the independence — Long-standing advocates of child rights have vehemently demanded a standard marriage age to supersede other personal laws—however, personal laws have always posed a barrier to this end. The Child Marriage Restraint Act, also known as the Sarda Act, was enacted in 1929 to provide much-needed relief to the child who fell victim to unbridled child marriages—at that time, the minimum legal age to form a wed-lock for a minor boy and girl was 18 and 14 years respectively. To ease the pre-pregnancy complication of underage girls, the Sarda Act introduced a vital change in the age of marriage by increasing the minimum age of marriage for females from 14 to 15—it was again amended in 1978, increasing the age of marriage of girls and boys to 18 and 21 respectively. Despite this, the legislative intent behind the act was to merely limit the minimum legal age for consent to indulge in sexual activity. It had no explicit provision directly targeting child marriage or accounting for the repercussions of early marriage on the overall development of minors. To this end, the Prohibition of Child Marriage Act, 2006 (hereafter referred to as PCMA) superseded the Sarda act to give it a more child-prohibited nature—the PCMA laid down the minimum age for marriage as 21 for males and 18 for females—however, to the dismay of minors, even after having so many provision explicitly prohibiting child marriages it fell short in preventing rampant adolescents marriages in India—to put it in another way;
It states that child marriage will only become voidable if the child or their guardians initiate legal action against the same. However, it is extremely unlikely that such a case will be brought before the concerned authorities due to the deeply entrenched societal stigma attached to divorce.
The act further stipulates that a petition for the dissolution of such a marriage must be filed within two years of the applicant's reaching the age of majority. This indicates that a marriage can only be dissolved before the ages of 20 and 23 for girls and boys respectively. Such a limitation period is quite inappropriate, as the girls or boys may not have acquired that degree of maturity to realize the ramifications of early marriage and its effect on their overall development.
Furthermore, the act lays down that child marriage will be void only in three cases- one, when the child is taken or enticed out of the keeping of a lawful guardian; second, in cases of forceful compulsion or use of deceitful means; and, third, when the child is being married into for the purpose of trafficking or immoral purposes. This section forwards the position of different personal and customary rules that merely make child marriage voidable and render it legitimate until declared invalid by the party in question.
Although Section 13 of the PCMA states that child marriage can be prevented by obtaining a court order for an injunction, this is not the case here. In reality, the injunction is not being sought.
Moreover, the bill doesn’t have an overriding effect on the other law, custom, usage, or practice governing the parties to the marriage. It means the evils of the personal laws as discussed above will go unaddressed.
Amendment in the PCMA Act
The Government of India has passed the Prohibition of Child Marriage (Amendment) Bill, 2021 with an intent to establish constructive harmony between personal laws and PCMA pertaining to child marriages in order to prevent the abuse of minors.
Promising features of the bill:
The bill raises the legal minimum age of marriage for females from 18 to 21.
It now permits the party to submit the petition before five years have been completed since obtaining majority (i.e., completes 23 years of age).
It also supersedes any other law, custom, usage, or practice controlling the parties to the marriage, including personal laws based on a person's religion. This will actually result in a long-demanded uniformity in laws concerning the marriageable age of girls and boys.
Conclusion
While there has always been opposition to pre-pubescent and widespread child marriages, it would be interesting to note whether the government’s constructive step to curtail child marriages by introducing a uniform minimum age of marriage under PCMA—along with other vital changes to the cause— with the overriding effect over all other personal laws, decrease the instances of child marriages or become another exploited tool in the hand of society to punish eloping adolescent couples. To this effect, Supreme Courts and the Parliamentary are also examining the current amendments to PCMA to see how the newly amended provisions may affect personal laws. Nevertheless, the amendment alone to the PCMA cannot address the problem of child marriages; there must also be adequate support, information dissemination, and capacity enhancement from various quarters.
Co-authored by - Akshay Pathak and Neha Kumari
National Law Institute University, Bhopal.
