Vishu Surana

The failure of the PCPNDT in tackling falling sex ratio has also affected the validity of marriages and has led to proliferation of trafficking.

Prannv Dhawan, in his post titled ‘The Menace of Sex Selection: Need for a Reality Check’, explained how the ineffectiveness of the Pre-Conception and Pre-Natal Diagnostic Technologies Act, 1994 is contributing to a falling sex ratio. In this Post, I shall explain the social consequences of this gender disparity on marriages by looking at how communities will handle this mismatch. Will they resort to cross-region marriages, import brides from other countries or re-engage in the ancient practice of polyandry? I conclude by analysing the validity of such marriages and suggesting ways to protect the rights of the women as the current law enforcement mechanism fails to take cognisance of such practices.

Consequences of low sex ratio – Marriage Squeeze

The declining number of brides is creating a social imbalance within society. To better understand the likely effects of a skewed sex ratio on marriages, an analogy can be drawn. Presume that we have several pools in a country and in each there is a fixed number of men and women with diverse features. If an individual is restricted to look for a partner in the same pool as them, they will look for the best possible partner in that pool. In pools where the sex ratio is low, men being greater in number will face the problem of bride shortages. This mismatch in the marriage market because of the imbalance in sex ratios, which will result in some men being squeezed out of the marriage market, is referred to as the Marriage Squeeze.^[1] It depends on the availability of potential partners, which is in turn influenced by the sex ratio, marriage patterns and population age structure. It is not merely a numeric imbalance- it is impacted by how marriage is socially, economically and politically construed. In a country like India, where marriage remains a social compulsion to a large extent, this bride shortage implies that men will face a severe marriage crisis. As a result, to counter this problem, families will enter into cross-region marriage or import brides from neighbouring countries.[2]

This situation is exacerbated by poverty and illiteracy. The worst impact of a skewed sex ratio is felt in States such as Punjab, Haryana, Uttar Pradesh and Rajasthan as men enter into cross-region arrangements by finding brides using unethical methods. Bride trafficking often involves abduction of women and luring families from poorer regions for the marriage of their daughters into high sex ratio regions in exchange for money. Brides are also imported from Nepal and Bangladesh and are sold into marriages to these States by a dalal (broker) in exchange for a commission. While it is unfortunate that India has no laws directly aimed at curbing bride trafficking, trafficking of a woman or child for the purposes of a marriage is an offence punishable under Clause 31(v) of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Act, 2018.

This activity is different from bride price, which is a compensation paid to the bride’s family for the loss of her labor. This is an accepted practice, known as ‘paro practice’ and is not seen as ‘buying the bride’.^[3]  Practices such as fraternal polyandry (wife sharing by brothers) and leviratic marriage (marriage of a widow to her husband’s brother) are re-emerging to counter bride shortage.

The question that arises in light of these new kinds of marriages is whether they constitute a marriage at all or are they merely a network of trafficking of women? The next section analyses the validity of such marriages.

Validity of Marriages

There are three independent tests to determine the validity of the marriages. The first test is to verify if the consent of the bride was present. The Supreme Court recently held that Sections 5, 11 and 12(c) of the Hindu Marriage Act, 1955 (HMA) clearly specify consent from the bride as a pre-condition for a marriage. It held that it is amply clear that consent procured by fraud is on the same footing as no consent. Therefore, lack of consent of the women, or consent obtained by force or by fraud vitiates such marriages and they are then voidable under Section 12(c) of the HMA at the option of the coerced party. However, in reality, these marriages usually remain valid under the law. For the marriage to be declared voidable, the woman mandatorily needs to approach the court seeking a decree of dissolution. Usually, the women who are forced into such marriages are illiterate and are not aware of their rights. Moreover, due to pressure, immaturity or dependence on husband financially, she is seldom able to come out of such marriages. Consequently, law and enforcement have been weak and it remains a valid marriage.

The second test is to look at the age of the bride. In most cases, it is the bride’s first marriage and they are below 16 years. The reason behind this is that it has been predicted that men will temporarily defer marriage while women will marry earlier due to an increased pool of prospective partners. This will imply a fall in their age at the time of marriage and an increase in child marriages. In cases where the “minor is sold for the purposes of marriage…or if the minor is married after which the minor is sold or trafficked… such marriages shall be null and void” as per Section 12(c) of the Prohibition of Child Marriage Act (‘PCMA’). In other cases of child marriage, Section 3 of the PCMA recognizes them as valid but voidable at the option of the minor involved. However, it is rare that such child brides come forward due to legal illiteracy and lack of financial resources.

To address the inconsistency in child marriage laws, the Union Women and Child Development (WCD) ministry has decided to amend the law and make child marriage void ab initio or invalid from the outset. This will remove the requirement of child brides to approach the court to get a decree of nullity passed. However, a mechanism should be in place to secure the rights of the child bride as the PCMA does not provide for any such protection.

The third test is to check if there are any living spouses. None of the personal laws allow polyandry. If a woman marries a second man when her first marriage is subsisting, she is liable for bigamy and the provisions of Section 494 of the Indian Penal Code, 1860 will apply. However, ironically, such marriages can be legally recognized in communities as a custom having the force of law. However, the two conditions required are not met. One, it has not been followed in any community from time memorial and two, it is against public policy and morality. This implies that all the polyandrous marriages are void.

However, even when the marriages are nullified by a decree passed by Courts, problems remain for women. The next section deals with these difficulties and suggests recourses available in law.

Rights and Remedies Available to Women

In forced marriages, there is a loss of mobility, freedom and social safety networks for women. Several times she is abused by males of the village and is not socially accepted. In forced polyandry, her dignity and self-respect are at stake. She is also subjected to physical, mental and sexual abuse. This attracts Section 3 of the Protection of Women from Domestic Violence Act, 2005. She can attain Protection Orders, Residence Orders and Monetary Relief. Fortunately, even if she is not legally married, she can seek relief under this Act as it also applies to ‘relationships in the nature of marriage’ as per Section 2(f).

Marriages which are considered void or voidable lead to more problems for the women, as they are not entitled to any rights of a legitimate marriage. However, they are entitled to claim maintenance as per Section 125 of the Criminal Procedure Code, 1973 as the Supreme Court has held that validity of a marriage will not be a ground for refusal of maintenance.

However, the root of all these problems is a lopsided sex ratio. Despite the continuous decline in the sex ratio, there is hardly any attempt at preventing the elimination of the girl child. The PCPNDT ban has only sent the detection process underground and made it more expensive and risky. Sex selection is not a solution to dowry, violence or trafficking. We need to follow a three-pronged approach to counter this abuse of women.

Firstly, to reduce the skewed sex ratio in the long run, we need to ensure that the sex ratio is increased by increasing awareness about the long-term implications of killing the girl child. The Department of Women and Child Development along with Gram Panchayats, Auxiliary Nurse Midwives and Anganwadi workers can take an initiative to call for special meetings to discuss the skewed sex ratio. They can be instrumental in demystifying the myths about sex determination of foetus. UNICEF in India conceptualized the project ‘Initiative to Reduce Sex determination & Pre-Birth Elimination of Females’ to address the problem of female foeticide. Consequently, in Madhya Pradesh, this issue was put on public agenda and mass awareness followed. This program should be spread throughout the country.

Secondly, we need to prevent the trafficking and buying of women for marriages by implementing a law solely aimed at curbing the problem of bride-trafficking. While Clause 20 of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Act, 2018 does list down preventive measures and strategies that the State and the District Anti-Trafficking Committees should adopt in order to protect the victims of trafficking in general, it is not sufficient to counter the specific issue of bride trafficking. For instance, the United States has enacted the International Marriage Broker Regulation Act, 2006 to control the practice of online brokers luring women living overseas in order to facilitate a marriage with an American. The Act prohibits profiling of girls below 18 years of age and lays down guidelines about what information should be mandatorily listed, including criminal records to reduce the abuse of women. A similar but more stringent legislation that aims at preventing bride trafficking is required in India, keeping in mind the low literacy rate and lack of awareness among women. Such a law should focus equally on the elimination of the problem and criminalization of the middlemen that perpetrate it. It must take into account the method that the brokers use to traffic brides across the State and National borders. Thirdly, the Courts need to ensure that maintenance is provided to the women irrespective of whether the marriage was legal or not – especially in cases of polyandrous marriages. The problem of financial insecurity prevents several women from approaching the Court to get a decree of nullity passed and they choose to live in a forced marriage instead. The Government cannot dismiss what is happening or afford to postpone taking any action.  If further unprotected, it will only worsen the situation and lead to added exploitation of the women.

Vishu Surana is a II Year, B.A. LL.B (Hons.) student at the National Law School of India University, Bangalore.

[1] See Gary Becker, A Treatise on the Family (1981).

[2] Das Gupta, Evidence for an Incipient Decline in Numbers of Girls in China and India, 35 Population Development Review 401, 407 (2009).

[3] See Leigh Minturn, Sita’s Daughters: Coming out of Purdah (1993).