The expression-child marriage is a compendious one. For some it is
fun and excitement and for some it is end of parental liability. Again, some
relate Child Marriage either with culture
or religion. But, it seems nobody understand the plight of the children
who live under the bondage of forced or obtuse matrimony. Since 1929 both the
British and the Government of India have been trying to eradicate Child
marriage in India but the fact and figures present disappointing picture. As
per the 205th Report of the Law Commission of India, February 2008, child
marriages continue to be a fairly widespread social evil in India and in a
study carried out between the years 1998 to 1999 on women aged 15-19 it was
found that 33.8% were currently married or in a union. In 2000 the UN
Population Division recorded that 9.5% of boys and 35.7 % of girls aged between
15-19 were married. However, while regional disparities exist, child marriage has
significantly decreased from 47 per cent (2006) to 27 per cent (2016). Despite this drop, nearly 1.5 million girls under 18 year
of age enter into premature matrimony. Therefore, the salient issue is how to
minimized the frequency of Child Marriage in India. Sociologists argue that for variety of reasons, child marriages are
prevalent in many parts of our country but the reality is more complex than
what it seems to be. Can alone law
do it? I know many are skeptic about this but if we look at the provisions of
Section 16 of the Prohibition of Child Marriage Act, 2006 it provides the
statutory duties of Child Marriage Prohibition Officers. As I understand these
duties are not explanatory and need to be crafted properly. Many might have
observed two forms of Child marriage ie, Minor’s Marriage with the consent of
the parents and guardians and Minor’s Marriage without the consent of their
parents and guardians. In both the cases the legitimacy of marriage often presented
before the honourable court.
The legal principle
that a marriage in contravention of clause (iii) of section 5 of the HMA was-neither
void nor voidable, was established prior to the enactment and enforcement of
the Prohibition of Child marriage Act, 2006. The principle which is now
applicable is that a marriage in contravention of clause (iii) of section 5 of
the HMA is not ipso facto void but could be void if any of the circumstances
enumerated in section 12 of the Prohibition of Child marriage Act,
2006 is triggered and that, in any event, all such marriages would be voidable
at the option of the ‘child' spouse in terms of section 3 of the Prohibition of Child Marriage Act,
2006.
The Prohibition of Child Marriage
Act, 2006. extends to the whole of India except the State of Jammu and Kashmir;
and it applies also to all citizens of India without and beyond India: Provided
that nothing contained in this Act shall apply to the Re-noncants of the Union
territory of Pondicherry. The
Central Government may, by notification in the Official Gazette, appoint; and
different dates may be appointed for different States and any reference in any
provision to the commencement of this Act shall be construed in relation to any
State as a reference to the coming into force of that provision in that State.
Sometimes parents refuse undertake
the responsibility of minor bride and bride groom.(especially after kidnapping
and rape) Section 5 of the enactment provides Custody and maintenance of
children of child marriages and Section 6. of the Act provides Legitimacy of
children born of child marriages and it has been done in the best interest of
the Child. The District enjoys the power to pass appropriate order for the
custody of the Children (Section 7). Therefore, should JJ Act 2015, Domestic
Violence Act, Protection of Children from Sexual Offences Act, 2012 and the
Mental Healthcare Act, 2017 be engaged to tackle the situation? Or the Parent
legislation should specifically make provisions to that effect?
Section 9. Punishment for male adult marrying a child.(2 Yrs and
fine up to 2lakh or both) Section10.
Punishment for solemnising a child marriage and Section 11. Punishment for promoting or permitting solemnisation of
child marriages. Sometimes social activist and hardliner argue for stringent
punishment to minimize offences. The quantum of sentence has been a contesting
subject and the learned house should debate. In
Shankar Kisanrao Khade vs. State of Maharashtra[(2013) 5 SCC 546], referring to
the recent decisions (of about fifteen years), the Supreme Court has summarized
the mitigating factors and aggravating factors. In State of Rajasthan v. Jamil Khan, (2013) 10 SCC 721 the
apex court observed that “A balance-sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option of sentence is
exercised”.
Last but
not the least, Section 13
provides Power of court to issue injunction prohibiting child marriages and
under the provision the District Magistrate who is deemed to be the Child
Marriage Prohibition Officer enjoys wide
power to prohibit child marriage under his jurisdiction. As I have seen
District Magistrates are overburdened with their normal administrative work.
Should State Government appoint specifically appoint Child Marriage Prohibition
Officers vested with Magisterial powers other than District Magistrates?
Child marriage is a social evil
which has the potentialities of dangers to the life and health of a female
child and can play multi-dimensional havoc in their lives, who cannot withstand
the stress and strains of married life and it leads to early deaths of such
minor mothers. It also reflects the chauvinistic attribute of the Indian
society. Time has come stop child marriage for good as it violates the Rights of Child
and the basic tenets of Human Rights.
Prof (Dr.) P.K.Pattnaik
Dean, SOA National Institute of Law
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