PROHIBITION OF CHILD MARRIAGE ACT- BREACHED WITH IMPUNITY
Updated: Aug 28, 2020
By- Pavithra Rajesh, 5th Year Student at National University of Advanced Legal Studies (NUALS), Kochi
Child Marriage can be described as a legal or customary union between two people one of whom is below the prescribed age of 18. Despite existing domestic legislation for prohibition India still has a large number of child marriages. As per UNICEF India has one of the highest numbers of child-brides in the world. According to this report, 27% of the girls in India are married before they attain 18 years of age and 7% are married before attaining 15 years of age. To understand the causes it is important to analyze the existing framework in India as the enforcement of legislation plays a censorious role in the regulation of child marriage.
The efforts to prevent child marriage dates back to the Child Marriage Restraint Act of 1929 (‘CMRA’) wherein the minimum age of marriage for girls was fixed at 14 and boys at 18. This Act was subsequently amended in 1949 increasing the minimum age of marriage of girls to 15 and it was last amended in 1978 increasing the minimum age of girls and boys to 18 and 21 respectively. However, the problem with the Act is that it imposed fines to discourage children's marriage but did not straightaway declare it as void showcasing the mild commitment towards its abolition. The shortcomings of this Act led to the Prohibition of Child Marriage Act of 2006 (‘PCMA’).
In comparison to CMRA, PCMA took a much more serious approach towards child marriage both in prevention as well as punishment. Some of the positive changes are that PCMA increased the punishment to two years of imprisonment and a fine up to INR 1,00,000 and appointment of Child Marriage Prohibition Officer. One of the positive steps taken by the judiciary’s approach towards child marriage was in the case of Independent Thought v. Union of India & Anr wherein the Supreme Court observed that PCMA would override all the other personal laws. The Court thereby observed PCMA as a secular law than construing it from the point of view of personal law i.e. even if child marriage is acceptable in person they are still required to comply with PCMA. The Apex Court in this judgement notably also observed that child marriage should be void ab initio throughout the country. Another positive step made by the Government of India was the approval of Karnataka government amendments which declared all child marriages void ab initio under the PCMA.
It is true the PCMA was a positive step towards eradicating child marriage however the PCMA is ineffective which was also reiterated by the Supreme Court. With the introduction of this Act though it addressed the legal issue, it fails to address the existing societal and cultural norms in India. Section 3(2) and (3) of PCMA is very problematic considering how most the marriages are forced by parents and in-laws and also permitting a girl to file a petition for void marriage only after two years of attaining majority will only add on to the additional barriers. Although Section 16 provides for the appointment of Child Marriage Prohibition officers the Act is silent on punishment for neglect of duty, thereby not ensuring accountability. The lack of proactive enforcement agencies is also another reason.
As per Section 19 of PCMA, it requires the state to makes rules for its implementation, but till now only 24 states have drafted it and 20 states have appointed Child Probation officers. This showcases the lack of implementation on the part of the state governments. There has been a lack of effort on the part of the judiciary to declare child marriages even when they have reported only a handful of cases are fully prosecuted. This is confirmed by the Delhi High Court in the case of the Association for Social Justice & Research v. Union of India wherein a girl who as below 18 years was age was alleged to have been sold to child marriage by her 40years old father. The court in this case directed the girl to return to her parents and her husband was released on bail. Even though it was a matter of child marriage the courts did not take any measure to declare the marriage void. Also under the PCMA most of the cases are pending for disposal.
The end of child marriage with the present regime seems to be impossible. Efforts must be taken to make law more stringent and proper rehabilitation of girls who are entrenched by the existing social norms. It requires short term goals with more effective ground-level steps to be undertaken with strict verification of the age of bride and groom. Social awareness initiatives and campaigns must be undertaken. One of the positive approaches pointed out by the Court in Smt Seema v. Ashwini Kumar was compulsory registration of marriage which would be a way of tracking child marriages which was also recommended by the Committee on Elimination of Discrimination against women. Efforts to harmonize PCMA with other laws on violation against women and children must be taken. The government must take measures protective actions to prevent child marriage to bring about a paradigm shift in the percentage. Independent thought case is only a step towards child marriage abolition more checks on authorities and implementation of the law are required for it to be obsolete.
 Article 1 of Convention on the Rights of the Child- Child means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier.  In 1949 fines slightly increased from one month to 3 months imprisonment and fine of an unspecified amount. Since then there were no changes in the punishment.  Section 9,10 of 11 the Prohibition of Child Marriage Act, 2006  (2017) 10 SCC 800- para 19 and Lajja Devi v. State 2013 Cri LJ 3458  Independent Thought v. Union of India & Anr (2017) 10 SCC 800- para 87  Section 3(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer
(3) The petition under this section may be filed at any time but before the child filing, the petition completes two years of attaining majority.  Under section 17 of Prohibition of Child Marriage Act Child Marriage Probation Officers is deemed as a public servant as per section 21 of IPC
 Chapter V of POSCO, 2020 prescribes punishment for failure to report or record cases as well as false complaints or information under Section 21 and 22.
 W.P.(CRL) 535 of 2010
 (2) 2008 1 SCC 180
 Committee on the Elimination of Discrimination against Women- Concluding observations on the combined fourth and fifth periodic reports of India para 39
(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.)