CURSE THAT VIOLATES THE RIGHTS OF CHILDREN: CHILD MARRIAGE
Kritika Vyas and Saloni Bhambi, 4th Year, ILS Law College, Pune
“Child marriage is an affront to human dignity and well-being and an impediment to sustainable development” - Lakshmi Puri, UN Women Deputy Executive Director
Marriage is the primary arrangement to form a family between a man and a woman. Since we are land with a fusion of religions, the pious rights and rituals vary. However, a common pattern that can be seen is the widespread child marriages in India. According to the Prohibition of Child Marriage Act, 2006, the minimum age of the man is 21, and the woman is 18. Statistics show that 45% of married women fall in the bracket of a child bride and 10% of men were underaged when they were coerced into holy matrimony. Child marriage evokes imprisonment of the children in a forced marriage without their consent.
Hindu Marriage dictates the marriage null only if the bride was married before the age of fifteen years and challenges it in court before she turns eighteen. After she attains the age of eighteen, her marriage is valid in the eyes of law. There are also no provisions to punish the parties and guardians who solemnized the marriage. There is no bar to child marriage under the Shariat Law. The age of marriage is when they attain puberty, which is usually fifteen years. They do however have Khyar-ul-bulugh or also known as the “option of puberty” by which on obtaining the age of puberty, can repudiate their marriage. The Indian Christian Marriage Act allows the commencement of the marriage of minors if no objections have been raised in the period of fourteen days.
The root cause of child marriage may be cultural, social, economic, or religious. Poor families use their children as a means to settle their debts or earn bride prices or dowry in exchange for marriage. Hence the young bride is now in the cycle that ensures that she is never made aware of her rights, is not properly educated, and can never be independent.
Child marriage increases the discrimination and disparity between genders. According to studies, in cases where the girl was underage when she got married, she was more likely to get inflicted with domestic violence, marital rape, deprivation of food, lack of education, no right to healthcare, and basic necessities. In patriarchal societies like that of India, preservation of the girl’s virginity is held as a priority. Child marriage therefore will ensure that the girl’s virtue is protected, robbing her of her self-respect instead.
Child marriages lead to more pregnancies and health complications, as the young bride does not have adequate knowledge, nor does she have someone to guide her. The girls have to hence go through the physical pain of having sexual intercourse when their sexual organs have not matured for the situation they are presented in. Lack of access to contraception at an early age causes her to be trapped in several unwanted pregnancies. A male child is desired, and so she is forced to have as many times as she can till she finally brings an heir to her husband.
In most marriages, it is the bride who is underage and has to blindly obey her bridegroom who is an adult with a considerably large age gap between the two. She does not usually have the right to make any decision regarding her children and is treated indispensable by her entire family. Child marriage is therefore more abusive to the girl than it is to the boy. However, that does not negate the fact that both the kids involved in this are exploited and robbed of their innocence.
LEGISLATIONS - PAST AND PRESENT
The Child Marriage Restraint Act, 1929 also called the Sarda Act (after its sponsor Har Bilas Sharda), was a law enacted by the British government which was the first secular law towards curbing the menace of child marriage by restricting the practice. Its goal was to eliminate the risk placed on young girls who couldn’t handle the strain of married life and avoid early deaths.
To make the Act more effective the law was amended in 1978 by raising the minimum age of marriage by three years i.e. from 15 to 18 years in the case of girls and from 18 to 21 years in the case of boys. It only prescribed punishments for an adult male who married a minor and the parents who promoted such marriages but the punishment was very less, and the fine was of a very small amount.
The Act had provisions only for restraining the solemnization, not for prevention or prohibition of child marriages i.e. by itself, it did not make the marriage void. Nevertheless, the Act largely remained a dead letter and also failed to achieve its objective. This was largely due to the fact that the colonial British government did nothing to promulgate awareness of it, especially in villages and smaller towns of India.
As a result of the ineffectualness of the Act, new legislation was enacted to replace it in the form of the Prohibition of Child Marriage Act, 2006. The Act envisages preventing child marriages with stringent measures; it kept the ages of adult males and females the same as the previous Act but made some significant changes to further protect the children. The children forced into child marriages as minors have the option of making their marriage void up to two years after reaching adulthood, and in certain circumstances like if the child is enticed away from his/her lawful guardians or if the consent is obtained by fraud, deceit or and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void. All valuables, money, and gifts must be returned if the marriage is nullified, and therefore the girl must be provided with an area of residency until she marries or becomes an adult. Also, children born from child marriages are considered legitimate, and the courts give parental custody with the children's best interests in mind.
The law prescribes punishment to an adult male for marrying a child and also requires providing maintenance to his minor bride till her remarriage. It also provided for the appointment of a Child Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness regarding the same. But there is no provision in the law to stop a child bride from living with her husband and from being sexually abused apart from other forms of abuse.
The Supreme Court of India gave a landmark judgment (Independent Thought vs. Union of India) in October 2017 by criminalizing sex with a child bride, hence removing an exception in India’s criminal jurisprudence which had until then accorded legal protection to men who raped their minor wives. In 2020, the government-appointed task force proposed to increase the age of marriage for women from 18 to 21 for the purpose of making uniform age for marriage and which will also enormously benefit women on social and economic fronts.
SOLUTIONS AND SCHEMES
Though child marriage is an outcome of deep-rooted traditions of the patriarchal society, this doesn't mean that it is sacrosanct and unchangeable. The government has introduced several schemes to ensure the protection of children from this system. They need to be explained that girls are not their economic burden, and when given the opportunity to pursue education, they can help their family by holding their own weight in the family income. Providing economic support to families suffering from poverty is a step in the right direction to curb child marriage. Dhanlakshmi was introduced in 2009 as a conditional cash transfer scheme.
Empowering young girls will give them a sense of self and awareness of their legal right to refuse marriage, and get educated on health and sex education. The Rajiv Gandhi Scheme for Empowerment of Adolescent Girls was introduced in the year of 2010 for the holistic development of girls aged 11-18 years in 205 selected districts.
Religious leaders play an important role in guiding their community, and their resistance towards a cause can change the attitudes of their devotees. Although interception of child marriage is better, there are young girls who are already in the system. It is essential to educate them on their reproductive rights, contraceptives, and healthcare. By allowing women to speak and make decisions for women, harmful traditions which affect their rights, the men are compelled to listen.
Hence, marriages within all communities should be registered mandatorily. Awareness of the benefits of education needs to be given to guardians and girls alike to challenge this discriminatory practice and its ill effects. The Government should keep introducing new schemes that are widespread, and their efforts have been a good step forwards in curbing this malpractice.
 PANDIT JAWAHARLAL NEHRU, AN AUTOBIOGRAPHY (Penguin Books India 2004)
(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.)