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The Judicial Ambivalence of PCMA and Personal Laws

This article delves into the complexities between the PCMA enacted by legislature in 2006 and personal laws prevalent in countries derived from the sources of various religion. There have been various practices which were being annulled post enactment of constitution. This article tries to dig deep into the acts and complexities pertaining to them. The socio-cultural aspects that perpetuate child marriage in rural areas as well as in some areas of urban India.

With the help of case laws and reference materials, the paper tries to examine tensions and conflicts between secular and personal domains of law. This article delves into understanding the status of child marriage under various circumstances. This article tries to make reader understand the application of PCMA in different circumstances, coinciding with the application of different personal laws.

Marriage is considered to be a sacrament and a major part of human life in almost every religion. The classic 'Muslim law' defines it as a contract' but not an ordinary contract to the extent that the fundamentals of marriage inscribed in Muslim law can be changed according to the mutual agreement of parties.

In all the personal laws that have been codified, there is some mandate for the age of parties who can marry. For instance, in the Hindu Marriage Act (hereinafter referred to as HMA) after the amendment of 1978, the age was changed from 15 years for girls and 18 years for boys to 18 and 21 years respectively.

In Muslim law, the same has been defined as the age at which the girl or boy attains puberty which is generally assumed as 15 years. Pre- Pre-independence, there were various acts like the Age of Consent Act of 1860 which was amended various times but only mentions about consummation of marriage and not solemnization. The most important act which has been applicable in India for over 75 years was the Child Restraint Act of 1929.

This act mandates the age of marriage as 14 years for girls and 15 years for boys. If such legislation was enacted then what was the need for PCMA to be enacted? The need was that there was no strict punishment and the conviction rate was law that led to the solemnization of marriages unabated. The parents would show themselves vulnerable under the guise of poverty and family problems.

The Prohibition of Child Marriage Act (hereinafter referred to as PCMA) was thus enacted in 2006 with the legislative intent of prohibition of solemnization of child marriages as enshrined in its preamble which provided an extensive recourse on child marriage.

History of Child marriages:

Child marriage has been a traditional practice in India since times. Children were tied to the sacred bond of marriage before they could even understand the meaning of the term, which made them even more vulnerable.

Traditional societies prefer child marriages due to the following reasons:

  • Fear of social stigma
  • Security of the girl
  • Emphasis on girl's sexual purity [1]
  • The mindset of a girl child as a burden
was amongst various other reasons, that led to the practice of child marriage. Child marriages started to get into the eyes of social reformers when a large number of girls succumbed to the physical injuries caused during sexual intercourse. For instance, in a case [2], an 11-year-old girl died due to a ruptured vagina and excessive hemorrhage caused by sexual intercourse with a man aged 35 years with whom the parents of the girl married her.

Also, the problem of child widowers persisted which made a lot of girl widows at such a young age without them being at fault and unable to remarry, as there was no option for girls to remarry as per most of the customs prevalent at the time. These types of instances made girls vulnerable and forced them to live a pitiful life.

Various acts were brought by the British government like the Age of Consent Act, 1860 along with IPC which also mandate the age of consent as 10 years. Age of consent refers to the age when a marriage can be consummated. Various acts and amendments have been passed but neither of them mentions about solemnisation of marriage.

HMA, 1955

The act in section 5(iii) talks about age as a condition for marriage but neither provides any status to marriage as void or voidable nor penalizes its perpetrators. This marks up a question of whether a child marriage solemnized under HMA is valid, void, or voidable. Sections 11 and 12 of HMA talk about void and voidable marriages, for every condition that is breached under section 5, there is a varied consequence for each, but in the case of the age factor, the act is silent, which neither makes the marriage void as per section 11 nor voidable as per section 12.

Considering there are only three types of marriage in HMA the marriage would be considered valid. The courts have also followed the same approach in various cases, citing that child marriage was valid despite its contradiction with section 5(iii) of HMA because the legislature had clearly kept it out of the preview of both a void as also a voidable marriage[3]. This made it clear that a child marriage is valid under HMA.

There were some remedies provided to the girls that empowered them to repudiate their marriage before attaining majority i.e. between the age of 15-18. This also acts as an indicator that child marriage is valid as it was included as a ground of divorce and not void under section 12.

Muslim law

The marriage and its incidentals are dealt with by Shariat law,1937 in India. Shariat law prescribes the age of marriage when the parties to the marriage attain puberty. Moreover, the guardians may also solemnize the marriage before the age of puberty by expressing consent on behalf of the parties. Consent is a requisite of Nikah (Muslim marriage) and in case consent was not taken by the girl before Nikah she could claim for a decree of nullity in court.

As in the case of Munshi vs Mt Alam Bibi, the girl refused to join her husband as her consent was not taken by her paternal grandfather before her Nikah, the court held that according to Muslim law, the girl and boy both should agree for the marriage in a single seating, since there was no consent, this marriage would be considered as no marriage in the eyes of law[4].

PCMA, 2006

Since there has been always a silence on the validity of child marriage and its solemnization. The government brought the PCMA Act, a secular law that applies uniformly to all personal laws. PCMA tries to curb the menace of child marriage as before this act, child marriages were solemnized unabated. This act stipulated the minimum age for marriage as 18 years for girls and 21 years for boys and also penalized the perpetrators of child marriage. It also appointed a child marriage prohibition officer in every district to prevent child marriages. For the first time, the status of child marriage was defined in an act.

PCMA defines child marriage as voidable and gives the parties the option to take a decree of nullity from the court 2 years after they attain majority[5]. It means that a girl and boy both can get their marriage annulled before reaching 20 years of age, the fundamental problem that arises is that the legal age for marriage of a girl is 18 but in the case of a boy it is 21, which means that a male has to get his child marriage annulled his legal age of marriage. The act defines a child as a male, who has not completed the age of 21 years and a female who has not completed the age of 18 years[6].

The question that arises is whether the phrase 'attaining majority' in section 3 should be construed in terms of the legal age of marriage or should be construed according to the Indian Majority Act, of 1875. If we consider the age of attaining majority according to The Indian Majority Act of 1875, the age until which the decree of nullity can be taken would be 20 years which contradicts the purpose of the legislative to keep 21 years of age as the legal age of marriage for males.

On the other hand, if we consider the phrase attaining majority as majority in terms of the legal age to marry then the age until which decree of nullity can be taken would be increased to 23. The interpretation of the language would be a tussle for various high courts and the Supreme Court. There has been no judgment on this until now.

Section 4 of PCMA talks about maintenance to be provided to the girl child till her remarriage by the husband, in case the husband is unable to maintain, then his parents are liable to maintain the girl child till her remarriage. The word remarriage here widens the scope for the girl child as it would be a legal obligation upon the other party to maintain the girl child. The question arises whether in case a girl does not remarry and is now financially independent, is the other party legally bound to pay maintenance. According to the literal interpretation of the provision, it is.

This puts the male party on a lower pedestal and makes him vulnerable to maintain the girl throughout his life. Does the court have the power to go against legislation and stop the maintenance if it causes injustice to the male party? The eyes are upon the apex court to decide the interpretation of this law.

PCMA also mandates that either party to the child marriage only has the right to take the decree of nullity. In a society like India, where due to parental pressure, girls are forced to marry, is it viable for them to get out of the marriage themselves? Various rural societies consider it a sacrament and getting a nullity of marriage is considered to be a sin. The legislation should make it easier for the girl child to get out of the same. Girls continue to bear domestic violence and abuse but can't get out of the marriage due to societal reasons.

The right should also be given to the next friend or the parents of the party, if the parents are complaining due to the marriage being not with their consent, the girl could easily answer the court with her consent. The restriction of only parties being able to approach the court defies the legislative intent of curbing child marriage. The contention against this would arose that if non-parties are given this right, there would be a flood gate of petitions, that could also be rectified by the legislature by enacting a punishment for the people making fake cases.

Here the idea is not to give other parties right to claim decree of nullity, the idea is to give right to the parties on behalf of the girl showcasing prima facie the toxicity of relationship. The act should be reformed to make itself more adaptive to the needs of the society. Hence, we need to bring some reform in the act.

PCMA also makes child marriages void in certain cases as enshrined in section 12 of the act. It also provides for the maintenance and rehabilitation of the parties of child marriage. As a general rule, it is the duty upon the court to make decisions on the welfare of the minor and also to appoint his guardian in various cases keeping in mind the maximum welfare of the child.

PCMA and Hindu law

Prior to PCMA, under HMA a child marriage was valid but after the commencement of this act, child marriage becomes voidable and void in four conditions. There have been various amendments to the age factor mentioned in Section 5 of the HMA. In the context of the legitimacy of children born out of such marriages, in HMA statutory legitimacy was conferred upon them which gave them the right to inherit their parent's property only but PCMA gives them full legitimacy which makes them co-parcener to the property by their birth and can inherit parents as well as their relative's property.

HMA, in 1978 conferred the right to a girl child for repudiating her marriage if she was married before the age of 15 years. She can exercise this right before attaining the age of 18 years. Also if the girl had married after the age of 15 years and wanted to repudiate it before completing 18 years of age, she was unable to exercise the same, but HMA widened the scope for the repudiation of marriage as it allowed the girl child to repudiate her marriage is she has been married before the age of 18 years. This right can only be exercised till the girl attains the age of 20.

PCMA confers the obligation upon the male party i.e. bridegroom to maintain the wife. Also if the male party is a minor, the duty shifts upon the shoulders of the parents of the male child to maintain the girl. Whereas in HMA, the maintenance obligations were gender neutral and were decided according to the economic status of the parties, the rights can be enforced only against the parties and not the parents. PCMA confers a duty upon the district court to make orders for the residence of the girl after the decree of nullity has been passed.

The problem arises with the nature of child marriages, as child marriages are categorised as two, first where the parties' contract to the marriage with the will of their parents, secondly the marriages where there is voluntary marriage between the parties to the marriage with or without consent of their parents.

Various question arises regarding the validity of the latter. Now, to decide the validity of this type of case, the Court has held that even though the parties to the marriage are minors, they were allowed to go with their husbands[7], this reasoning was given by the court keeping in mind the age of discretion of the girl. If the girl herself agrees that the marriage was with her consent, and she was with the boy voluntarily and wants to be with him, the court may entrust the girl's custody to her husband.

When the minors themselves contract to marry without their parent's consent, it causes great concern for their protection as the parents of both parties keep chasing them. In various cases, such instances have been seen where parents slap fake charges like rape, kidnapping, etc on the male party requesting the court to annul it or trying to torture the male party and his family.

This raises the question of whether the parties can get police protection or not. The court in this scenario held that the parties may be minor but the fundamental right of life and liberty of the individuals also has to be taken into account[8].

It is the right of the citizens to get police protection if they are facing any threats and hence should be provided to them. Also, in the case that both parties are not of marriageable age but are major, they are entitled to protection as they may not be legally competent to marry, but they are entitled to live in a live-in relationship and have a right to claim police protection.

The next question deals with the charges of rape on the husband. Section 375 of the IPC deals with rape and provides an exception that sexual intercourse done by a husband with her wife who is above 15 years of age would not amount to rape. This posed a question on the consummation age of a child marriage. According to this provision, child marriage can be consummated if the girl is above 15 years.

But in Independent Thought vs UOI, the Supreme Court held that sexual intercourse with a girl under 18 years will amount to rape. With this judgment, the question comes that if consummation of marriage under 18 years is rape, then does this makes child marriage void. The answer to this would be that a child marriage if solemnized would be voidable under PCMA but the consummation of the marriage should be after the girl has attained the age of 18 years or it would amount to rape under section 375 of the IPC.

PCMA and Muslim law

Muslim law is superseded by PCMA in terms of age factor. The age for marriage in Muslim law is the attainment of puberty whereas with the commencement of PCMA, the age is revised to 21 years for boys and 18 years for girls. In a case[9], a question arises as to whether PCMA would be superseded over Muslim law, which is a special enactment. The court applied the doctrine of leges posteriores priors contraries abrogant, saying that both Muslim law and PCMA are special enactments and a later statute enacted when is contrary to the provisions of the earlier statute then the later statute will prevail.

The children in Muslim law were considered legitimate with the same as in PCMA. Since Muslim law allows for marriage at any time after the child is born by the guardian, the children out of the marriage were considered legitimate and hence coincided with PCMA.

For the cases where there is voluntary elopement by the parties, the court has opined in various cases that if parties are above 15 years of age and have voluntarily eloped then the custody can be given to the husband since in Muslim law 15 years is prescribed as the age and both the parties have consent and are eligible for marriage under Muslim law. The marriage would thereto be voidable and a decree of nullity can be taken by the parties according to section 3 of PCMA.

The PCMA was a great step taken by the legislature to curb the menace of child marriage. Being a secular law, it creates a sense of uniformity in all the personal laws. Child marriage is a menace that harms both the parties and in most cases the girl physically, mentally, and emotionally. Religion can't supersede a person's liberty in cases of sensitive matters like marriage, the constitution has guaranteed the Right to marriage and should be applied in society strictly.

There is still a scope for betterment for the changes to be brought. The complexity between protecting a child's rights and protecting religious, and cultural practices has to be dealt with by the courts with a child-centric approach. The gaps should be filled with urgency in cases of child marriage as it impacts society to a greater extent and creates a negative impact. The courts and legislature should step forward again bringing reforms to root out the problem of child marriage in India.

  1. Poonam Pradhan, Family Law I, 91 (1st ed., 2021).
  2. Queen-Empress vs Hurree Mohun Mythee, 1891 ILR 18 CAL 49
  3. Pinniti Venkataraman v State, AIR 1977 AP 43.
  4. Munshi v Mt Alam Bibi, AIR 1932 Lahore 280.
  5. S. 3, Prohibition of Child Marriage Act, 2006
  6. S. 2(a), Prohibition of Child Marriage Act, 2006
  7. Ravi Kumar v State, 2006 (1) RCR(Cr) 41
  8. Rajeev Kaur v State of Punjab, AIR 2020 (NOC) 619 (P&H)
  9. Abdul kader v K Pechiammal, 2015 SCC OnLine Mad 5212 [11].

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