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Child Marriage

Child is a person who has not completed twenty-one years of age, if a male, and if a female, has not completed eighteen years of age.[1]

Marriage is the legally or formally recognized union of two people as partners in a personal relationship (historically and in some jurisdictions specifically a union between a man and a woman).[2]

Child Marriage is defined as a marriage of a girl or boy before the age of 18 and refers to both formal marriages and informal unions in which children under the age of 18 live with a partner as if married. Child marriage affects both girls and boys, but it affects girls disproportionately, especially in South Asia.[3]

Validity of Child Marriage
A marriage in which either the girl is below 18 years of age, or the boy is below 21 years of age is child marriage. The previous law titled Child Marriage Restraint Act of 1929 had provisions only for restraining the solemnization, and not for prevention or prohibition of child marriages. The present law- Prohibition of Child Marriage Act, 2006 has three purposes i.e., prevention of child marriages, protection of children involved and prosecution of offenders. This law has declared child marriage to be a cognizable and a non-bailable offence. An injunction can be issued by the court to prohibit its solemnization and if a marriage is solemnized after the injunction, then such a marriage is to be declared as null and void.[4]

Consequences of child marriage
Child marriage is an extremely hazardous practice with devastating consequences. Child brides are certainly more vulnerable to domestic violence from their older husbands. Young brides are far more likely to be uneducated than girls who do not marry.[5]

These girls have a greater risk of contracting HIV/AIDS and other STDs, and are more likely to bear children before they are physically ready. Approximately 70,000 young brides die every year as a result of childbirth complications. Girls who give birth before the age of 15 years are five times more likely to die during childbirth than women in their twenties. Early marriage and pregnancy can also be detrimental to the girl’s child. If a mother is under the age of 18 years, then her baby’s chance of dying within the first year of its like is 60% greater than infants born to a mother older than the age of 19 years.[6]

WHY DOES CHILD MARRIAGE HAPPEN?
Child marriage is basically rooted in gender inequality and the belief that girls and women are somehow inferior to boys and men. It is a complex issue. Poverty, lack of education, cultural practices, and insecurity fuel and sustain the practice. But drivers will vary from one community to the next and the practice may look different across regions and countries, even within the same country.[7]

Objective
To understand the concept of child marriage, it’s validity, judicial pronouncements on the concept, & suggestions for betterment of the situations prevalent.

Methodology
This project is done on the basis of doctrinal method. Secondary data is one type of quantitative data that has already been collected by someone else for different purpose to our topic in discussion. It is always convenient to use data collected by someone else if exists it may be on a much larger scale than we could hope to collect and could contribute to our feelings considerably. Secondary sources are of the types:
  • Paper based sources books, journals, periodicals, abstracts, indexes, directions, research reports, conference papers, market reports, annual reports, internal records of organizations, newspapers and magazines.
     
  • Electronic sources: CD-ROMS, online databases, internet, videos, broadcast

Historical Background
Child Marriage is prevalent in India dating back to pre-colonial times as the concept was present in early religious texts. When India was earlier colonized, the practice of child marriage used to be examined more heavily. Occasionally, colonizers used it to label the Indians as barbarians, however, they did not intervene or attempt to end the practice out of fear of resistance from the Indians.[8]

Child marriage was typically viewed as an economic transaction, meaning it was frequently mandated with certain rules and assumptions. Girls used to be often viewed as economic burdens who were transferred to the marital family after marriage. Bride prices and dowries used to be large motivations for early marriage which were prioritized above the well-being of the marrying child. Decisions around a girl’s marriage were often based on a family’s desire to minimize costs, particularly for poor families. As a result, women in the highest wealth quartile in India marry over 4 years later than those in the lowest quartile. This gap has been widening over time.[9]

Bride Price means; when the family of the groom pay their future in-laws at the start of their marriage.[10] This practice was common in India.

For more than 140 years, the Indian government and society has been attempting to eliminate this practice of child marriage through law.

The important fights against Child Marriage:
In 1927, Rai Sahib Harbilas Sarda introduced the Child Marriage Restraint Bill, which set the minimum age of marriage at 14 years for girls and 18 years for boys.

British government enacted the Child Marriage Restraint Act, 1929 which was the first secular law towards curbing the practice of child marriage. However, it didn’t make the marriage void by itself. It could only prescribed punishments for an adult male who married a minor and the parents who promoted such marriages. However, the punishment was minimal, and the fine was of a very small. The Act was amended and then to increase the age limit.

In 2006, Prohibition of Child Marriage Act was passed. This act had increased penalties for conducting a child marriage ceremony, made a child marriage voidable by the married parties up to two years after the participant reached the age of maturity, and allowed the courts to intervene in cases of child marriage.

A widely publicized rape case in Delhi in 2012; the Nirbhaya case[11] played an important role in influencing the Indian government to increase the age of sexual consent to match the age of marriage.[12]

Current Status In India
India’s rank is fourth among eight South Asian countries in terms of child marriage prevalence. Child marriage is currently illegal in India. The legal age of marriage is 18 years for girls and 21 years for men. Still, India has the highest number of child brides in the world. Approximately 47% of girls in India are married before their 18th birthday.[13]

Child marriage among boys also occurs in India, but at levels much lower than those seen in the past.

One out of three of the world’s child brides live in India. Of the country’s 223 mn child brides, 102 mn were married before turning 15.

The prevalence of child marriage is different across states and union territories in India. Above 40% of young women were married before turning 18 in Bihar and West Bengal, and less than 5 per cent were married before turning the age of 18 years, in Lakshadweep. Almost 50% of Indian child brides live in five states: Uttar Pradesh, Bihar, West Bengal, Maharashtra and Madhya Pradesh. Uttar Pradesh is the home to the largest population of child brides, with 36 million.[14]

A girl’s risk of child marriage depends on her background. Girls living in rural areas or coming from poor households are at a greater risk, and a higher proportion of child brides are found among those with little or no education.[15]

Child brides tend to have many children to care for at a young age, and also tend to have larger families compared to women who marry later.[16]

India has second highest number of child marriages with 43% of women aged between 20-24 who were first married by the age of 18 between 2005-2013.[17]
Compared to the last 10 years, progress is required to be four times faster to eliminate child marriage by 2030.[18]

Provisions under different laws
Hindu Marriage Act, 1956
Under the act, only the parties to a child marriage are punishable even if they didn’t consent to the union. There aren’t any provisions for punishing the parents or people who solemnized the marriage. A girl can get the marriage annulled only if she was married before attaining the age of 15 years and then she challenges the marriage before turning 18 years. There is no as such express provision to prohibit child marriage.

Muslim Personal Law

Muslim law is not codified in India. Therefore, its provisions are based on the interpretation of Quran by the scholars. Under Muslim law, there is no bar to child marriage. A guardian has a right to get the child married. However, the couple has ‘option of puberty’ known as khayar-ul-bulugh, wherein they can repudiate the marriage after attaining puberty. However, they must do so before turning 18 years and only if the marriage has not been consummated. The age of marriage under Muslim law is the age of puberty, i.e., 15 years. However, a marriage before the age of 7 years even if contracted by a lawful guardian, is void ab initio.

Judicial Pronouncements
  • Lajja v State [19]
    The Delhi High court held that the PCMA prevails over personal laws.
     
  • Independent Thought v. Union of India [20]
    In the landmark judgement; the Supreme Court of India on 11th October 2017 ruled that sexual intercourse or sexual acts by a man with his minor wife would amount to rape for the purposes of Section 375 of the Indian Penal Code, 1860. The Court has read down Exception 2 to Section 375 which reads Sexual intercourse or sexual acts by a man with his own wife, the wife not being below 15 years of age, is not rape to hold that sexual activity with a minor would constitute rape and the exception will not be applicable in cases where the wife is between the ages of 15-18.
     
  • P.Venkataraman v. State [21]
    The only consequence of child marriage is that persons concerned are liable for the punishment under sec18 of HMA, 1955, and a decree of divorce is liable to be given to the parties, if they wish so.
     
  • Krishna Pillai v. T.A Rajendran [22]
    Court was concerned with Section 9 of the Child Marriage Restraint Act, 1929 which stated that no court shall take cognizance of any offence under the Child Marriage Restraint Act, 1929 after the expiry of one year from the date on which the offence is alleged to have been committed. The three-Judge Bench held that since magisterial action in the case before it was beyond the period of one year from the date of commission of the offence, the Magistrate was not competent to take cognizance when he did in view of bar under Section 9 of the Child Marriage Restraint Act, 1929.

    Thus, there was apparent conflict on the question whether for the purpose of computing the period of limitation under Section 468 of the Cr.P.C. in respect of a criminal complaint the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance.[23]
    International Position

South Asia has highest rates of child marriage in the whole world. Almost half of all women aged between 20-24 years were reported being married before the age of 18 years. Almost one in five girls are married before the age of 15 years.[24]

Child marriage violates the child’s rights and places them at high risk of violence, exploitation, and abuse. India has the highest number of brides within the world – one-third of the global total. Bangladesh has the largest rate of child marriage in Asia (and the fourth highest rate in the world).

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which needs the free and full consent of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the right freely to choose a spouse and to enter into marriage only with their free and full consent.

CEDAW also states that the betrothal and therefore, the marriage of a child shall be having no legal effect. India also signed the Convention on Rights of the Child (CRC), and child marriage violates a variety of CRC provisions, including the right of children of not to be separated from their parents against their will and therefore, the right of children to freely express their views on matters that affect them. Further, under CRC, the state is obligated to be taking measures to abolish traditional practices prejudicial to the health of children, including marriage.

Child marriage is decreasing (63% in the year 1985 -to- 45% in the year 2010) in South Asia, with the decline being especially marked for girls under 15 (32% in 1985 -to- 17% in 2010). The marriage of girls aged between 15 to 18 years is however still commonplace, so more efforts are needed to protect the older adolescents from marriage.
Child marriage is a result of the interplay of economic and social forces. In communities where the practice is prevalent, marrying a girl child is a component of a cluster of social norms and attitudes that reflect the low value accorded to the human rights of girls.[25]

Argument in favor of child marriage:
A young mind is comparatively easier to adaptability and sustenance. As the mind grows, it tends to become more habitual to firmness within the decision-making process, thus leaving far less possibilities for the couples to compromise on situations.[26]

This is / was the viewpoint of the old villagers who still believe / used to believe in child marriage, inspite of it being declared illegal.

Criticism & Conclusion
The practice of child marriage has historical roots in both India and it remains prevalent today. The reasons that have allowed this dangerous abuse of young girls to continue are that both cultures struggle with poverty and place too much emphasis on the purity of women while patriarchal views are heavily ingrained into societies.[27]

Poverty causes the society to view the marriage of young girls as an economic transition rather than a violation of human rights. Monetary desires frequently motivate marriage, no matter of the child’s best interest.

Patriarchal views, which are incredibly prevalent in India, lead men to believe that they are superior to women. As a result, women are usually silenced, and the desires and well-being of young girls are considered irrelevant. Women and girls are often treated as objects belonging to men who should aspire to nothing more than to please men, even if this means early marriage and child bearing.[28]

The effects of child marriage can be felt across the world, with negative impacts on children's health and well-being and reinforcing the acceptability of violence.

Hence, child marriage itself can be considered a form of violence against girls. Gender norms that devalue girls and ladies and drive the practice of the child marriage can also promote the acceptability of violence.

Solutions
  • For rooting out child marriage, existing laws need tightening. Reviewing the child marriage interventions indicate that reform of legal and policy frameworks is important.
  • Child Marriage cannot be curbed without support from the society. There are demands to make child marriage void ab initio under the Prohibition of Child Marriages Act, but the Indian society is complicated and complex, and thus, making child marriages void will only jeopardize the rights of women who are victims of child marriage. Mere legislation won’t help unless there’s support and backing from the society. Uniform Civil Code can also help in preventing child marriage to some extent.
     
  • There is requirement of enhancing the accessibility and quality of formal schooling for girls; and offer economic support and incentives for girls and their families to keep girls in school or marry later./
     
  • Women should participate in the decision-making process because only through a woman’s participation and voice in the decision-making, can a girl's or woman's aspirations for her children be realized.
     
  • Approach to finish child marriages recognize the complex and complicated nature of the problem, and the socio-cultural and structural factors underpinning the practice. Therefore, solutions should be that envisions success in two timeframes. In the short term (5-10 years), there is a critical mass of children, families, and communities changing their attitudes and behavior; in the longer term (10-30 years), there is aspirations for all the children upheld by new social norms.
     
  • Five entry points should be considered to accelerate these changes:
     
    1. to increase the agency and resources for adolescents – especially girls – at risk of and affected by child marriage;
    2. to enhance the legal and development policy frameworks for an environment that protects the rights of adolescent girls and boys;
    3. to increase the generation and use of a robust evidence base for advocacy, programming, learning and the tracking progress;
    4. to enhance the systems and services that respond to the needs of adolescents at risk of or affected by child marriage; and
    5. to increase the social action, acceptance, and visibility around investing in and supporting girls, and shifting social expectations relating to girls, including by engaging boys and men.
     
  • At the world-level, inclusion of child marriage is in the goal of UNICEF; ‘Achieve gender equality and empower all women, including girls’ under Target 5.3: ‘Eliminate all harmful practices, such as child, early and forceful marriage and female genital mutilation’. In 2016, UNICEF and UNFPA had joined forces through a worldwide Programme to Accelerate Action to finish Child Marriage in 12 countries with highest rates of child brides [29]. Hence, steps like that taken by UNICEF should be adopted to terminate the practice of child marriage in the world.

Bibliography
Reports
  • Child Marriage Facts and Figures. International Center for Research on Women. N.p., n.d. Web. 21 Apr. 2016.
  • Diarra, Soumaila T. Women’s Rights in Mali ‘Set Back 50 Years
  • Early and Child Marriage in India. New Delhi: Nirantar Trust, n.d. Print.
  • Early Marriage: Child Spouses. Innocenti Digest 7 (2001): 1-18.
  • India Child Marriage. Millennium India Education Foundation.
  • ICRW and Girls Not Brides, taking action to address child marriage: the role of different sectors: Economic Growth and Workforce Development brief, 2015.
Links:
  • https://www.merriam-webster.com/dictionary/child
  • https://www.oxfordlearnersdictionaries.com/definition/english/child
  • https://www.latestlaws.com
  • https://www.casemine.com
  • https://ohrh.law.ox.ac.uk/
  • https://www.girlsnotbrides.org/themes/health/www.onlymyhealth.com
  • https://blog.ipleaders.in/laws-child-marriage-india/
  • https://timesofindia.indiatimes.com/blogs/legally-speaking/legal-status-of-child-marriages-in-india/
  • https://www.hindustantimes.com/india-news/from-voidable-child-marriage-to-turn-illegal/story-UrZ5S1hOvE9c5fq2O7CnZL.html#:~:text=Currently%2C%20child%20marriages%20are%20valid,can%20be%20annulled%20on%20request.&text=The%20Act%20makes%20contracting%20a,recognizes%20the%20union%20as%20valid.
  • https://www.unicef.org/stories/child-marriage-around-world
  • https://www.tandfonline.com/doi/full/10.1080/15570274.2015.1075757#:~:text=Child%20marriage%20is%20a%20widespread,where%20the%20practice%20is%20common.
End-Notes:
  1. https://www.merriam-webster.com/dictionary/child
  2. https://www.oxfordlearnersdictionaries.com/definition/english/child
  3. https://www.unicef.org/stories/child-marriage-around-world
  4. https://timesofindia.indiatimes.com/blogs/legally-speaking/legal-status-of-child-marriages-in-india/
  5. ohrh.law.ox.ac.uk
  6. https://www.girlsnotbrides.org/themes/health/
  7. ICRW and Girls Not Brides, Taking action to address child marriage: the role of different sectors: Economic Growth and Workforce Development brief, 2015.
  8. https://blog.ipleaders.in/laws-child-marriage-india/
  9. https://www.girlsnotbrides.org/themes/health/
  10. https://www.google.com/
  11. Mukesh v. State (NCT of Delhi) (2017) SCC 1
  12. https://blog.ipleaders.in/laws-child-marriage-india/
  13. Child Marriage Facts and Figures. International Center for Research on Women. N.p., n.d. Web. 21 Apr. 2016.
  14. Diarra, Soumaila T., Women’s Rights ‘Set Back 50 Years’’
  15. India Child Marriage. Millennium India Education Foundation.
  16. https://www.unicef.org/stories/child-marriage-around-world
  17. United Nations’ children agency, UNICEF; Improving Children’s Lives, Transforming the Future — 25 years of child rights in South Asia
  18. https://www.unicef.org/stories/child-marriage-around-world
  19. Court on its own motion (Lajja Devi) v State and Ors,2013 Cri LJ 3458
  20. (2017) 10 SCC 800
  21. AIR 1977 AP 43
  22. 1990 (Supp) SCC 121
  23. https://www.casemine.com/
  24. https://www.unicef.org/stories/child-marriage-around-world
  25. https://www.unicef.org/stories/child-marriage-around-world
  26. https://terredasie.com/
  27. Early Marriage: Child Spouses Innocenti Digest 7 (2001): 1-18.
  28. Early and Child Marriage in India. New Delhi: Nirantar Trust.
  29. https://www.unicef.org/stories/child-marriage-around-world

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