CHILD MARRIAGE: SOCIETAL CHALLENGES FOR THE LEGAL REGIME
Abhishek Burman, 2nd Year, Maharashtra National Law University, Nagpur and Shriya Tiwari, 2nd Year, Hidayatullah National Law University, Raipur
Child marriage is a marriage between two young individuals (children) who are below the age of majority and neither of them is physically nor mentally prepared to shoulder the responsibility of marital bond and child procreation. Therefore, marriage at such an age results in an increase in infant mortality rates, the death of young mothers, and malnutrition. The individuals who aren’t even capable of taking care of themselves on their own, consequently, are burdened with family responsibilities that lead to huge mental, economic and physical stress that their mind and body are apparently not developed enough to handle at this age. Some authorised legal definitions as to who a child is:
The Indian law defines the term child in Section 3(1) of the Indian Majority Act of 1875 as every individual who has the domicile of India and shall attain the status majority only when he has completed 18 years of his age and not before that. According to child psychologists, a child is termed as the one whose attributes and actions consist of those lying midway through infancy and childhood. The upbringing and the surrounding they are exposed to at such a tender age, therefore, matters a lot when it comes to building a valuable individual for the progress of its family, its society, and most importantly, its nation.
HISTORICAL BACKGROUND OF CHILD MARRIAGE
There have been innumerable cases related to child marriages in India. The major reasons primarily the societal setup, that leads to the prominence of the practice are:
Since, in the earlier times, there was no proper family planning so this resulted in a huge number of children in a family, which therefore intensified the pressure of the parents to educate and marry them. Besides this, poverty and other factors like poor education, family insecurity, and gender inequalities already enhanced the seriousness of the problem. Most importantly, poor implementation of the law has been the major factor in the continuance of this malpractice in our country.
Most of them didn’t come into the limelight due to the voices being suppressed by the consistent external pressure. So, the woman whose opinion was least considered was the one majorly affected by the ongoing menace in the society. Moreover, some of them got the upper hand as they were fortunate enough to be approached by the socialists, active in contemporary times.
The first such incident that gained legal recognition is the leading case of Dadaji Bhikaji v. Rukhmabai, where the Bombay High Court bench gave its verdict observing that it was quite a barbarous and cruel behaviour done to a young girl who was compelled to cohabit and consummate the marriage with her husband whom she had tied a knot at the age of 11, where she was undoubtedly incapable of giving consent. The case sparked an unprecedented debate regarding child marriage, and Rukhmabai became a leading voice speaking about the rights of children and them getting married away at a young age.
In another case of Queen-Empress v. Huree, Mohan Mythee, tracing back to the year 1891, saw the demise of a young girl, aged 11, who succumbed to haemorrhages suffered due to forceful vaginal sexual intercourse by her husband. The 35 years old man was saved from the charges of rape, yet this particular case galvanised a popular demand for ‘consent before marriage’ and also consent for having sexual intercourse.
LEGISLATIONS REGARDING THE ISSUE IN INDIA
● The Child Marriage Restraint Act, 1929: The CMRA adopted a more disciplinary and preventive measure with respect to the marriage of minor children rather than going with less effective prohibitive provisions. Initially, it imposed a fine of Rs. 1000 on anyone marrying a girl and a boy at the age less than 14 and 18 years of age, respectively, with a corresponding liability of the girl’s parents in the course of the Act. Later in the year 1949, the Act was amended to increase the age to 15 for girls (boys remained 18). With a final amendment in 1978, the age was increased to 18 and 21 for girls and boys, respectively.
● The Hindu Marriage Act, 1955: The HMA, in conformity to the 1978 amendment made in CMRA, contains a provision that talks about 18 and 21 years of marriage for girls and boys, respectively. Besides this, it also contains a provision for punishment of one involved in a child marriage that consists of rigorous punishment in the form of imprisonment that may extend up to two years or imposition of fine (which may amount to 1 lakh rupees) or both.
● The Prohibition of Child Marriage Act, 2006: This Act provides prohibition of solemnisation of child marriages by appointing officials by state governments to prevent minor child marriage. This Act raised hopes but failed when it came to declaring such marriages void that was already solemnised and they remained valid, subjected to the confirmation of both the children. At the international level, the United Nations made the declaration to spread awareness globally by the year 2030 and to protect the vulnerable age group of the human society. UNFPA’s Executive Director, Dr. Babatunde Osotimehin, once said that we should work hand in hand along with all other nations to deal with this menace and take adequate steps to protect adolescent girls, especially. To make them progress in their lives and contribute to the economic and social development of the nation. According to the report of the UNFPA, nine out of ten adolescent girls face improper conception at a particular time. This has repercussions like abortion, malnutrition, and other major complications caused to the young mother. UNFPA, in collaboration with the national governments and civil societies, works at the grass-roots levels to ensure the protection of human rights of the children, curtailing incidents like premature death of a child, curbing the chances of contracting sexually transmitted diseases. Some programs include Action for Adolescent Girls programme and the UNFPA-UNICEF Global Programme to Accelerate Action to End Child Marriage, to let the children realise their potential and their human rights and come out with flying colours in whatever they opt for.
CHILD MARRIAGE AND HEALTH ISSUES
Child marriages adversely affect the growth of a girl child. It affects her physical development as well as mental growth for the rest of her life. Child brides often live in an extended family, which is a prominent source of violence and psychological disorders; as young girls, they are denied an appropriate childhood and basic nutrition which is required for a female body. Furthermore, the reproductive health of a girl child is also jeopardized as they are forced to have sexual intercourse with the man elder to them. The female spouse often lacks the status and the knowledge of safe sex and contraceptive practice, increasing the risk of acquiring HIV or other sexually transmitted diseases and the possibility of early age pregnancy. Girls under the age of 15 die more often at the time of pregnancy as compared to a bride who is in her early ’20s. Moreover, they face several pregnancy-related issues such as “Obstetric fistula”. “According to the International Women’s Health Coalition,” Children of child brides are 60% more like to die in the first year of life than those born to mothers older than 19.
A recent UNICEF report stated that India has the second-highest number of child marriages in the world, with 43% of Indian women having been married before the age of 18. Another recent study by The International Research Centre for Research on Women reported that young women who married before the age of 18 were twice as likely to report being beaten, slapped, or threatened by their husbands as girls who married later. They were also three times as likely to report being forced into sexual intercourse without their consent in the previous six months. According to the report of The International Center for Research Women (ICRW), there are ways to prevent child marriage. Firstly, the need for better laws and better policies is so essential that many countries where the rate of child marriage is high, passed many legislations and implementation of such laws and policies is also very important there are various legislations in India too but still the child marriage is happening in one way or another. Secondly, implementation of such policies which provide economic support and incentive to a girl child and her family. It was evident that poor families often prefer child marriages as they are financially weak so as to gain the bride price. The most important thing to prevent child marriages is the implementation of laws which really help a girl child. In so many remote areas child marriages are still common. The COVID-19 almost damaged all the sectors, ministries around the world still child marriages are at their peak. According to the Global Girlhood 2020 says that “At least half a million girls are now at risk of being victims of forced child marriages by the end of this year. Furthermore, according to the Save, the Children report up to 2.5 million girls may be married early due to pandemic”. Thus, child marriage is the end of childhood and adults must look for ways to end the evil.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)