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Riddled with different contradictions

Riddled with different contradictions
Childhood, supposedly the most beautiful of life’s seasons, is a luxury and not the norm for Indian women. According to a UNICEF Report on child marriages in India, 43% Indian women are married by the age of 18. Ideally, such a country ought to have stringent provisions regulating child marriage and simultaneously protecting the rights of the minors involved. In 1891, an 11-year-old girl called Phulmonee died of excessive bleeding caused by vaginal rupture when her husband forced sex upon her. This case catalysed the formation of public opinion against child marriage, which led to the passing of the Child Marriage Restraint Act, 1929. It was subsequently replaced with the Prevention of Child Marriage Act, 2006. However, over a hundred years after Phulmonee’s tragedy, the law concerning child marriage continues to be riddled with contradictions and idiosyncrasies. Child Marriage carries within its fold, many severe and abysmal consequences. Child brides are far more likely to suffer from high mortality during childbirth as well as pregnancy-related complications. Girls below 15 years of age are five times more likely to die in childbirth. According to International Centre for Research on Women, child brides are twice as likely to suffer physical violence and sexual abuse. Child marriage erodes the most fundamental right of any girl to a healthy, safe and natural environment. 

Section 3 of the Child Marriage Prevention Act, 2006 (PCMA) states that all child marriages, irrespective of the age at which they have been solemnised, are ‘voidable’ at the instance of the party who was a minor at the time of marriage and not ‘void ab initio’ or invalid from the very outset. Consequently, any child marriage in India is implicitly valid unless an application for annulment is filed by the party who was a child at the time of marriage within two years of attaining majority. Moreover, the PCMA defines ‘child’ as a boy below 21 years of age and as a girl below 18 years old. Meanwhile, Section 375 of the Indian Penal Code (IPC), which deals with rape, states that any sexual contact with a woman below the age of 18 years shall be deemed to be rape, as such a woman is thought to be incapable of understanding the consequences of such an act. However, the second exception to this section states that any sexual contact between a man and his wife is excluded from the ambit of rape unless the wife is under 15 years of age. Thus, sexual intercourse with one’s wife who is below 15 years old de facto constitutes rape. However, the irony of the conflict between the PCMA and the IPC is that rape under Section 375 may occur in a legally valid marriage, despite the minor wife allegedly ‘consenting’ to the same. 

Hindu, Christian and Parsi personal laws set the age of marriage at 21 and 18 years for men and women respectively, but do not hold child marriages to be void. Muslim personal law allows any woman who has reached puberty or has completed 15 years of age to get married. However, last year, the Gujarat High Court held that the PCMA applies to individuals of all religions irrespective of their personal laws. This view was in consonance with that of the Karnataka High Court, which held that no Indian citizen could claim immunity from the PCMA on the ground of belonging to a particular religion. Thus, it becomes apparent that the PCMA is the law of the land for all Indian citizens and thereby, this dichotomy extends to all Indian citizens.

On the one hand, the legislature has deemed all sexual activity below the age of 18 years as undesirable, but on the other, it has accorded implicit acceptance to child marriages. This, in turn, has provided elbow room for people to get married before the age of 18 in the first place and thereby, indulge in the sexual activity, which has been deemed to be a crime. In a nutshell, a person can enter into a possibly valid marriage as a child, but the sexual activity which marriage carries in its fold is deemed to be rape. The exception to Section 375 is unlikely to prevent a man from indulging in sexual activity with his minor wife if the marriage itself is legally valid. 

The only conceivable way by which these contradictions can be rationalised is by moving a particular amendment to the PCMA that renders all child marriages solemnised before the age of 18, void while providing the safeguards of maintenance until remarriage, legitimacy and custody of children to the affected party. Marriages solemnised when either or both parties are below the age of 18 years should be made void ab initio under the PCMA. Both the Law Commission and the National Commission for Women had recommended in their reports that child marriages be made void. Moreover, the part of exception (2) to Section 375 that refers to a wife below the age of 15 along with the clause dealing with unmarried women below the age of 18 ought to be repealed and instead, a new section dealing with the rape of any woman below the age of 18, irrespective of her marital status ought to be inserted. The Justice Verma Committee, while seeking to recognise the concept of marital rape beyond the realm of age, had also recommended the insertion of a new section dealing with the rape of a minor person regardless of their marital status.

The suggestions mentioned above need to be rationalised with Muslim personal law, which permits anyone who has attained puberty or completed 15 years of age to enter into a marriage. To do so, an exception may be made for Muslims allowing only Muslim marriage and not cohabitation before the age of 16. This, of course, may lead to the opening of a Pandora’s Box as issues such as violation of fundamental rights as well as statutory denial of conjugal relations may be raised. Whilst this is a possibility to ensure that religious sentiments are not hurt, it is undeniable that preservation of customary laws cannot be given precedence over a minor girl’s right to life, health and safety, regardless of her community. 

Child marriage is ensconced in the very social fabric of India. As such, it is unlikely that a child bride will find the courage to annul her marriage and revolt against the society that forced her into the situation in the first place. The PCMA was conceived on the flawed presumption that a woman who was at such a social disadvantage that she was married off as a minor, would, as an adult, find the courage and resources to get the marriage annulled. The PCMA can only achieve its real objective if it rids itself of its inherent contradictions. Recently, Pakistan, a country that has often come under criticism for its treatment of women, has also approved the Hindu Marriage Bill, 2015, which declares all marriages officiated below the age of 18 as void. India is a country, which is modernising and globalising rapidly in every legal aspect ranging from I.T. laws to arbitration, and which has initiated path-breaking and innovate policies such as Make-in-India and Digital India. In light of this, there is no better time than now to rid the country’s women of the PCMA in its current form. 

(The views expressed are strictly personal.)
Aditya Manubarwala and Shardool Kulkarni

Aditya Manubarwala and Shardool Kulkarni

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