Saumya Singh and Kriti Jain
It has often been argued that child marriages under the PCMA should be declared void. This article analyses the arguments from both sides, and draws some important conclusions from the discourse.
Child marriages continue to be highly prevalent in India, despite laws existing against the practice for more than 90 years. In fact, the COVID-19 pandemic has further exacerbated this issue. Reportedly, there has been a 17% increase in distress calls to Childline, a children’s helpline, from 2019 to 2020. Between March and June of this year, officials have intervened to stop more than 5584 cases of child marriage. This has again spiked the debate on improving the legal and institutional framework in order to curb child marriage.
It has been recognised that the prevalence of child marriage is the result of various social and economic factors. Poverty is often the cause of marrying children off early. This was witnessed during the lockdown, when economic distress in combination with shutting down of schools and mid-day meals forced families to marry off their children for their supposed well-being. Further, child marriage remains a widely accepted and prevalent custom in many areas. It is exacerbated by the patriarchal structure of the Indian society, with the girl child often being perceived as a burden on the household, and her chastity being sought to be preserved through child marriage.
Child marriages have a host of adverse ramifications for the children involved in the same. Hence, the eradication of this practice has been a core area of deliberation, and legal reforms have been one crucial aspect of the proposed measures.
The most recent law on child marriage, the Prohibition of Child Marriage Act, 2006 (“the PCMA”), declares child marriage to be voidable at the option of the minors. Several amendments have been proposed to reform the present framework, the most recent one being increasing the marital age for women from 18 to 21. Another important suggestion, that is also being considered by the Government, is to amend the legal status of child marriage from voidable to void ab initio. This article will look into the arguments on the latter suggestion from both these sides, and conclude with an assessment of the potential legal reforms in the current legal framework.
Arguments for Amending the PCMA To Make Child Marriages Void
The dominant opinion seems to be to amend the PCMA to make child marriages void ab initio. Those who hold this opinion also acknowledge the need of ensuring the legitimacy of the children and maintenance to the minor wife. There are an increasing number of sources supporting the same.
One of the major arguments, as put forward in the Centre for Law and Policy Research (CLPR)’s Policy Brief and the 13th Report on the PCMA Bill 2004 by the Department Related Parliamentary Standing Committee, is that making child marriages voidable puts the onus on the minor to initiate the legal process for seeking a decree of nullity. Additionally, this can be done only within two years of attaining majority (which means within the age of 20 for the girl, and 23 for the boy).
However, children, especially girls, face various barriers in seeking annulment. A large number of children who are forced into a marriage are not aware of their rights and the option available to them to get the marriage declared void. Even if a child is aware, there still exists huge societal, familial and financial constraints in accessing the authorities. There is a lack of familial and societal support for invalidating the marriage. Children are often prevented from reaching the Child Marriage Prohibition Officer (CMPO) through physical restraint or threats of retribution from their families. Children also lack the financial autonomy to access the legal system. Additionally, the maintenance and residence reliefs ensured to the minor girl under the PCMA are paltry and unsatisfactory, with reports of high number of sexual abuse in shelter homes. This further makes leaving the marriage unviable. To add to this, a child may not possess the requisite documents to prove their age or marriage. As a result, few children can actually get their marriage annulled.
Another argument is that child marriage is a form of child abuse and a violation of the rights of a child. Young brides face immense risks from early pregnancy and sexual activity, such as risks of serious complications before, during and post labour and even death of both the mother and the child. According to NFHS-4 (2015-16), the under-five mortality rate is a staggering 59.2% when the mother gave birth below the age of 20. Young girls are also more prone to sexually transmitted diseases. Young brides married to much older men face higher risks of domestic and sexual violence. Moreover, given this age difference, the child brides are often widowed at a young age. She then is left with no resources, and suffers from an intersectional discrimination combining her gender, marital status and immaturity.
Thirdly, due to early marriage, children are often left with little or no education. They are forced to drop out of school and instead take up marital responsibilities. These children, especially young brides, are hence deprived of an opportunity of acquiring life skills and developing themselves.
Hence, child marriage amounts to a violation of a child’s right to live with freedom and dignity, right to health, right to education and right to a holistic development, among others. The 205th Law Commission Report on the Proposal to Amend the PCMA 2006, and the Report of Justice Shivraj V. Patil Committee on Prevention of Child Marriage in Karnataka recognize these detrimental consequences of child marriage. On account of this, their main suggestions include changing the status of child marriage from voidable to void, to recognise the unacceptability of the practice, deter such marriages, and preserve the rights of the children.
It is worth noting here that the State of Karnataka has amended the PCMA in 2017 to make child marriage void as per the report of the Shivraj V. Patil Core Committee. This step was lauded by the Supreme Court in the 2017 judgement of Independent Thought v. Union of India. Recognizing the possible and prevalent health risks associated with early marriage and sexual intercourse, the Court remarked that other State Legislatures should follow the route taken by Karnataka and declare child marriage to be void.
Lastly, it is argued that the legal framework on child marriage in India has to match its international obligations. Article 16(2) of the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) 1979, which India has signed and ratified, states that “the betrothal and marriage of a child shall have no legal effect…”. India has also ratified the UN Convention on the Rights of the Child (UNCRC) 1989, which puts an obligation on the states to protect the rights of the child. These rights include, but are not limited to, right to expression, right to freedom, right to health, right to education and right to protection from sexual exploitation, mental and physical violence, abuse, injury, etc. These are the very rights which are violated in a child marriage.
In addition to making child marriages void, it is emphatically highlighted that legitimacy, maintenance and custody of the child and maintenance and residence of the child bride needs to be ensured. The PCMA provides for these rights under Sections 4, 5 and 6 respectively. However, these rights are present only for the child marriages made generally voidable under Section 3, and excludes those marriages which are exceptionally made to be void under Section 12. The 205th Law Commission Report recommends extending these provisions to all forms of child marriage. Another significant change that it suggests is the compulsory registration of marriage, which is a way of preventing child marriages. The Supreme Court in Smt. Seema vs. Ashwani Kumar also observed the same. It further directed the steps which need to be taken by the State and the Central governments to make marriages of all persons who are citizens of India mandatorily registrable. This was in light of the fact that Article 16(2) of CEDAW makes registration of marriages mandatory, but India has made a reservation to the same that it is not practical in a vast and diverse country like India.
Arguments for Keeping Child Marriages under the PCMA as Voidable
Most of those advocating that child marriages under the PCMA remain voidable at the option of the minor contracting parties also recognise the grave consequences of the social practice, and assert the need for the eradication of the same. Their arguments regarding voidability are based on the best interests of the children involved in the marriage, especially the girl child, given the existing socio-economic conditions present in the country.
It has been argued that child marriage is a socio-economic issue, caused by a complex web of social and economic factors. Further, as a practice it has witnessed widespread social acceptance. In such a situation, merely declaring child marriages as void will not lead to a cease in the practice, as long as the factors causing the same continue to prevail. In the context of child marriage, it has been noted that changes in the law are only the first step in bringing social change: the solution lies in addressing the socio-economic causes of the same. This argument is supported by how child marriages have continued to be socially accepted and prevalent under the existing legal framework, even as the PCMA criminalises the conduction of such marriages. Empirically, this argument is supported by the experience in Karnataka, where the amendment to the PCMA to declare child marriages as void has not deterred such marriages. Further, the various social and legal factors listed in the foregoing section, which restrict child brides from leaving the marriage, might also prove to be a hindrance for them in seeking a declaration of nullity and other reliefs for void marriages.
In such a situation, it is argued that the legal framework where child marriages are considered void, while the practice continues in society, could prove to have significant adverse consequences for the child bride. In such a situation, brides in such marriages will have not even have any of the rights flowing out of the marriage, and will be left bereft of any legal protection while having to continue to stay in the marriage.
This problem has been addressed, to some extent, in proposals to consider child marriages void. In the 205th Law Commission Report and the CLPR Report, for example, it was proposed that the protections under Sections 4 to 6 of the PCMA, which currently apply only to the marriages declared void under Section 3, be extended to void marriages when the amendments concerned are made. However, with respect to the wife, these sections cover only maintenance and residence. These reliefs are highly insufficient for a person constrained to be within the marriage, given the lacunae therein discussed in the last section; and do not include crucial rights such as protections under Section 498A (cruelty), 304B (dowry death), and 494 (Bigamy) of the IPC, inheritance rights, the right to stay in the marital home, and other matrimonial rights as prescribed in different statutes. An example of such a situation of deprivation of rights in void child marriages comes from Karnataka, where a widowed minor bride was disallowed from claiming the pension of the deceased husband because of their marriage being considered void. In examining this argument, it is important to note that in a void marriage, a declaration of nullity can be sought by either of the parties to the marriage, without any time limitation. Hence, the provision of child marriages as void would allow even the major parties to a child marriage (which is often the husband) to seek a declaration of nullity, potentially even years after the said marriage, leaving the bride vulnerable.
Another argument against making child marriages void ab initio stems from a significant aspect of the actual use for the PCMA provisions. A study by Partners in Law and Development (PLD) has noted that the PCMA has been invoked to a significant degree by parents of minor girls, to target marriages that take place without their consent. Such elopements, however, are undertaken by girls owing to a variety of factors, including the fear of retribution on the discovery of the romantic relationship, the imminence of a forced marriage, and abuse or isolation in natal homes. In such cases, declaring such marriages as void ab initio instead of voidable at the option of the minor parties, besides militating against the couple’s autonomy, might prejudice the girl involved by forcing her return to her natal home while the said factors persist.
Hence, the arguments for keeping child marriage voidable do not stem from the acceptance of the practice. They are based on a consideration of the best interests of the child involved in such marriages, given the existing socio-economic conditions present in the country.
If the PCMA is to be amended and child marriages are to be declared void, it must be ensured that besides the existing reliefs available under Sections 4-6 of the PCMA, some other significant marital rights and protections must also be made applicable to the void marriages under the Act till the child bride remarries, if she does so. Some examples of such provisions are the IPC provisions discussed above, and inheritance rights. This would ensure that the child is not completely deprived of the marital rights and protections available under the law. Further, the situation of couples who elope consensually should be treated differently for the reasons discussed, and child marriages in such cases should be treated as voidable at the option of the minor party/parties.
If child marriages under Section 3 are to continue to be voidable at the option of the children involved, the challenges that currently exist for the child bride in approaching the Court and seeking a declaration of nullity must be sought to be remedied. Some legislative changes that could be considered in this respect include the inclusion of NGOs and Child Rights Organisations in the list of those who can represent the child, the removal of the mandatory role of the CMPO in the filing of cases, making provisions for the protection of CMPOs and activists facing danger because of their work against child marriages, extending the period after attaining the age of maturity within which the child bride can seek a declaration of nullity, mandating suitable training for CMPOs and other officers in the legal system, including judges, involved in child marriage cases to equip them with the necessary knowledge and sensitivity, and including punishments for the dereliction of duty on the part of CMPOs. Further, considering how it might be practically impossible for very young child brides to make an informed decision regarding the validity of their marriage, a model similar to the Law Commission’s could be considered, where child marriages involving children below a certain age could be made void ab initio, while the others could be considered voidable as at present.
Even as legal amendments are debated, the key to the eradication of child marriages remains addressing the socio-economic factors, through measures that address the root causes of the problem, such as state education, health services, and nutritional support.
The authors are II Year B.A. LL.B. (Hons.) students at the National Law School of India University, Bangalore.