Child Marriage in India: Loopholes in the Law

By sheer numbers, child marriage in India dwarfs the rest of the world; India has the highest number of child brides of any country.  Although the rate of child marriage is decreasing for children under the age of 15, the rate of marriage for girls aged 15-18 has increased from 26.7% in 1998-99 to 29.2% in 2005-06.  Child marriage is clearly not ending despite laws in place, and is perpetuated in India due to a range of factors, most prominently dowry, poverty and lack of educational opportunity for girls, concerns about the safety and honor of girls, and prevalent gender and social norms.

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which requires the “free and full consent” of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the “right freely to choose a spouse” and to “enter into marriage only with their free and full consent.” CEDAW also states that the “betrothal and the marriage of a child shall have no legal effect.” India is also signatory to the Convention on the Rights of the Child (CRC), and child marriage violates a range of CRC provisions, including the right of children not to be separated from their parents against their will and the right of children to freely express their views on matters that affect them. Further, under the CRC, the state is obligated to take measures to abolish traditional practices prejudicial to the health of children, including marriage.

The social forces at play perpetuating child marriage are difficult to combat, deep-seated and intertwined as they are. But perhaps what is lesser known is that laws in India prohibiting child marriage are flawed, contributing to the problem.

First, the Prohibition of Child Marriage Act, 2006 repealed the Child Marriage Restraint Act, 1929 and attempted to address the previous Act’s shortcomings. This Act defined child marriage as the marriage of boys under age 21 and girls under 18. The Act also made positive changes, including extending the maximum length of punishment to two years of imprisonment and/or a fine of up to one lakh rupees. If the marriage is nullified, the Act requires the return of money, valuables, gifts, and ornaments given by each party to the other, and also allows an order of maintenance for the former wife.  The Act also provides for government-appointed Child Marriage Prohibition Officers to work to prevent child marriages; while good in theory, it is unclear whether they are actually in operation and to what extent.

Notably, the Delhi High Court has held that the 2006 Act overrides personal law (Court On Its Own Motion (Lajja … v. State) (2012)). Thus, even if child marriage is considered acceptable in personal law, religious communities (in this jurisdiction, at least) are required to adhere to the more stringent requirements of the 2006 Act, which allow child marriages to be voidable at the option of the child entered into the marriage. Despite this, it is worth emphasizing that the Act still failed to make all child marriages automatically void, instead making them void only where the child is “taken or enticed” from the care of a guardian, in cases of compulsion, fraud or trafficking, and if performed in violation of an injunction.  Erecting further barriers, the Act holds that a child marriage is voidable only upon the filing of a petition for annulment in district court. It is thus deeply problematic that the 2006 Act does not automatically declare child marriages void, only making them voluntarily voidable.  This gap led to a disturbing judgment in May 2012, where the Delhi High Court held that a 15-year old girl, under Muslim personal law, has the right to marry without the consent of her parents as long as she has attained the age of puberty (Mrs. Tahra Begum v. State of Delhi And Ors, (2012)). The High Court held that a child marriage is not automatically void under India’s civil laws if entered into by the ‘choice’ of the girl, but that the marriage would be voidable only at the option of the contracting party under the Prohibition of Child Marriage Act, 2006. This loophole thus seems to allow child marriages to continue to be legally valid, in violation of CEDAW.

Further, it is problematic that the Act criminalizes those who conduct child marriages, usually parents or close relatives, without taking into account the underlying reasons for child marriage: poverty, poor educational options, a family’s fear for the safety of their daughters, and harassment resulting from dowry demands. Instead, some NGOs have suggested that government officials who overlook child marriages in their area should be subject to punishment. This may be a better option compared to criminalizing family members who themselves are often living in poverty, lack adequate education and may be succumbing to social pressure.

While ending child marriage in India is a long-term goal that involves changing social norms and patriarchal beliefs, reducing poverty, and improving educational opportunities for girls, India has a long way to go in improving its laws in the short-run. The laws should be improved by making child marriages automatically void without requiring parties to go to court, and placing a greater emphasis on criminalizing the acts of government officials or marriage registrars who overlook child marriages.

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