Thursday, 6 September 2018

Ending Child Marriage in India: Moving from Law to Justice

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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