Laws regarding the evil of child marriages must move beyond theoretical condemnation in the form of slogans and move towards laying down actionable procedure
One in three child brides across the globe hail from India. Few regressive practices receive such widespread condemnation but continue to be so widely practised. The harmful tradition is an impediment to personality development as the cumulative effect of reduced school attainment, maternal and child morbidities and mortality has a long-term impact.
On October 11, 2017, in the Supreme Court judgment regarding the case of Independent Thoughts Vs Union of India, Justice (retd) Madan B Lokur expressed concern. The Government of India and state governments should "make an informed decision on the effective implementation of the 'Prohibition of Child Marriage Act' (PCMA), 2006 and actively prohibit child marriages, which 'encourage' sexual intercourse with a girl child," he said.
While observing the social cost of child marriage, the judge noted: "Welfare schemes and catchy slogans are excellent for awareness campaigns but they must be backed by focused implementation of programmes, positive and remedial action so that the pendulum swings in favour of the girl child, who can then look forward to a better future."
India has progressive legislation such as 'The Protection of Children from Sexual Offences' (POCSO) and 'Juvenile Justice Act' (JJA) to protect child rights. 'The Child Marriage Restraint Act' was introduced in 1929. To bring in more progressive legislation, 'The Prohibition of Child Marriage Act' was brought to effect on November 1, 2007.
Section 19 (1) of the PCMA empowers the state governments to make rules in this regard. Using the said provision, different state governments have formulated rules that are different from each other. While on one hand, there is a need to respect the diversity of policy approaches, on the other, it is essential to strengthen the efficacy of the Act and the redressal mechanism.
There are wide variations in the post, role, and jurisdiction of the Child Marriage Prevention office (CMPO) and therefore, the approaches to prevent child marriages. Such variations mean that policies in one state — such as the detailed prescription on the role of the court in Bihar and qualifications for the role of CMPO in Arunachal Pradesh — are limited to these states, even when the problems they address are more or less universal in nature.
An amendment to that effect could be: "The state government may, by notification, make rules, for carrying out the provision of this Act. The Government of India shall formulate a model rule to guide the state government to make rules." This will help rationalise the provision and process, uniformly and progressively.
Recognising the nature of the problem, the Karnataka government declared child marriage void ab initio or treated as invalid from the outset.
The Supreme Court, in the Independent Thoughts Vs Union of India case, noted that there is no difference between 'rape', defined in Section 375 of Indian Penal Code (IPC), and the 'penetrative sexual offence' as defined in Section 3 of POCSO Act. In this context, having sexual relationship with a minor within marriage is an offence.
The Supreme Court judgment noted: "The second part of Section 42A [of POCSO Act] provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which will have an overriding effect to the extent of the inconsistency."
However, by maintaining that child marriage is voidable, PCMA continues to maintain the validity of child marriage which 'encourages' sexual intercourse with a girl child.
To address this inconsistency, it is essential to amend the law and make child marriage void ab initio.In this case, a more robust law could be amended to say: "Notwithstanding anything contained in sub-section (1) [of Section 3 of the PCMA] every child marriage solemnised on or after the date of coming into force of the Prohibition of Child Marriage Act (amended) shall be void ab-initio."
Another important intervention required is the change in the minimum age of marriage. This can be done by changing the definition of who constitutes a 'child' under the PCMA. The minimum age fixed as per Section 375 of the IPC has been changing since 1860. In 1978, the age up to which a girl was considered a child was changed from 15 to 18. For boys, it was changed from 18 to 21.
However, it was recommended by the Law Commission that the minimum legal age for men and women should be the same to get married. In its consultation paper on Reform of Family Law, the panel also said, "The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals".
Talking about the issue in her budget speech, Finance Minister Nirmala Sitharaman had said, "Women's age of marriage was increased from 15 years to 18 years in 1978 by amending erstwhile 'Sharda Act of 1929'. As India progresses further, opportunities open up for women to pursue higher education and careers. There are imperatives of lowering MMR (maternal mortality rate) as well as improvement of nutrition levels. The entire issue about the age of a girl entering motherhood needs to be seen in this light. I propose to appoint a task force that will present its recommendations in six months' time."
A state committed to the protection of child rights must also provide adolescents, especially young girls, socially sanctioned and economically viable opportunities so that at no age, would anyone be forced into marriage.
Child marriage challenges the right to health, education, protection and development of a child. While it adversely affects both boys and girls, it has a specific gender dimension, for it perpetuates discrimination particularly against girls. Every childhood lost to child marriage is one too many.
The writer is the national manager of the Ending Child Marriage Programme of Action Aid India. Views expressed are strictly personal