OVERVIEW OF THE PROHIBITION OF CHILD MARRIAGE

Child marriage is not a new occurrence in India. [1] Approximately 21% of the population is between the ages of 10 and 19, with women accounting for 47% of this group. A large number of girls in this age bracket are already married or will marry before they reach the legal marriage age.[2]

As a result, the government has decided to raise the legal age for women to marry from 18 to 21. The proposal was approved by the Union Cabinet, and the PCMA (Amendment) Bill, which amends the 2006 Prohibition of Child Marriage Act, was introduced. The Bill has been submitted to a Parliamentary Standing Committee for further debate after being introduced in Lok Sabha by Smriti Irani, Union Minister for Women and Child Development. 

By raising the legal age of marriage for women to 21 years, the proposed legislation equalises the legal age for men and women. It will amend a number of personal laws in order to ensure consistency in this regard.

  • Section 2 of the principal Act,— after amendment will be read as

(a) “child” means a male or female who has not completed twenty-one years of age;[3]

  • Second, it extends the time limit for a “child” to file a petition to have a child marriage declared void. Child marriages are not void but “voidable” under the law, despite the fact that they are prohibited.
  • When either party to a child marriage submits a petition under Article 3(4) of the 2006 Prohibition of Child Marriage Act, the court can declare the marriage null and void. In legal terminology, a “void” marriage, as opposed to a divorce, is the same as if the marriage never happened in the first place. The bill provides that both the woman and the men have a five-year window after reaching majority.
  • Since, both have reached the age of majority, either the man or the woman can file a petition to have the child marriage declared void before becoming 23, or two years after attaining the new minimum age of marriage.
  • The adoption of a “notwithstanding” phrase is the third and most important alteration proposed. This ultimately clears the way for the Prohibition of Child Marriage Act to be applied equally across religions, regardless of customs.

History of the legal framework

The law known as the Sarda Act, 1929 in India was the first to establish a minimum age for marriage. The name was later changed to  The Child Marriage Restraint Act (CMRA) of 1929. The statute was amended in 1978 to increase the minimum requirement for marriage 18 for girls and 21 for boys. Even in the current law, the Prohibition of Child Marriages Act (PCMA), 2006, which superseded the CMRA, 1939, this stance remains unchanged.

Marriage Minimum Age For Different Religion:

For Hindus, the Hindu Marriage Act of 1955 stipulates that the bride must be 18 years old and the groom must be 21 years old. The marriage of a minor who has reached puberty is considered acceptable in Islam. The Special Marriage Act of 1954 and the Prohibition of Child Marriage Act of 2006 both provide that women and men must be 18 and 21 years old, respectively, to consent to marriage. These laws are anticipated to be changed in order to apply the new age of marriage.

Why does Child Marriage still prevail in India?

Poverty, a low levels of education, the continuation of patriarchal interactions that encourage and promote gender disparities, and cultural viewpoints  are generally the elements that encourages this evil in its survival.[4] Some of these factors are discussed below-

Economic Causes

  • • From an economic standpoint, child marriages serve as immediate money generators. A girl child is seen to be a ticket to a substantial dowry, which will be handed to her family upon her marriage. In many societies, girls are considered as liabilities rather than advantages in the families they are born into, especially because they are seen as more mouths to feed and no hands to labour.
  • As a result, it is reasonable to argue that girls are considered chattels or property in the hands of their family, as they are destined to be married off as soon as possible.[5] Child marriages are chosen by poor families in order to cut expenditures and enhance the family ‘s monetary power by making money accessible for sustenance, medicine, and even the schooling of the family’s males.[6]

Legal Challenges

  • While legal provisions expressly prohibit child marriage, the reality on the ground is often different. The system of child marriage is riddled with inconsistencies: while voluntary sex with girls under the age of 18 is considered statutory rape, the same act with a girl of the same age is not sanctioned by the protective mantle of “marriage”.[7]  
  • Many rights are provided by a web of legal provisions derived from international human rights law, constitutional guarantees of gender equality, and gender-friendly legislation, but unfortunately, implementation is insufficient. Because of the thorough absence of translation from word to practise, the legislation is rendered ineffective, if not completely non-existent. However, there is a lot of potential for the various and divergent streams of law to converge and produce a convergent way of preventing and punishing child marriage.

Cultural and Social challenges

  • While legislation and economic backwardness both have a role in the incidence of child weddings, there have been cases where child marriages have occurred despite the presence of both laws and the family’s very rich economic background. In most cases, the continued prevalence of child marriages is due to a cultural tradition, or what is thought to be a cultural practise. This isn’t to say that cultural factors don’t influence the mindset that leads to child marriages in places where laws don’t operate or where affluence is scarce. Cultural mindsets and social behaviours are one of the variables that encourage the practise to thrive in these situations.
  • Unmarried women are frequently viewed as a threat to the family’s honour and integrity. This motivates families to do whatever they can to protect themselves from stigma by marrying their daughters as near to puberty as possible.[8]

One out of many stories

In a real life story, Komal Bai,[9] a resident of the state Madhya Pradesh, was married off as a child bride when she was just 14 years old and her husband was only 15 years old.

The team of The United Nations Population Fund (UNFPA), accompanied by the local health awareness activists and workers, reached out to the guardians of the bride and groom to try to delaying the marriage, but their efforts were in vain.

The team then provided counselling to the couple on family planning at a right time and its importance so that risks of early pregnancy could be avoided. She wanted to study further and her only hope was that her husband would allow her to do the same. However, due to the pressure of the in-laws, Bina soon became pregnant and suffered numerous health issues, and her newborn also died shortly after birth.

After a few months, she again conceived, and faced multiple health problems. The second baby, a daughter, was also born unhealthy. After this incident, Bina and her husband began using contraceptives. But their daughter continues to be weak and malnourished.[10]

Rationale behind increasing the age

  • The Prohibition of Child Marriage Act, 2006, replaced the Child Marriage Restraint Act, 1929, to prevent the solemnization of child marriages, yet this highly harmful practise has not been totally removed from our society. As a result, there is a pressing need to address this societal issue and implement reforms. We can’t claim progress unless women improve in all areas of their lives, including physical, mental, and reproductive health.
  • The panel was established in June 2020. And the two main goals were to protect women’s interests in terms of their health and their development as individuals with the freedom to complete their desired education.
  • Its objectives included investigating the link between maternal and infant health and age of marriage, as well as crucial health and population indicators such as the Infant Mortality Rate (IMR), Sex Ratio at Birth (SRB), Maternal Mortality Rate (MMR), Child Sex Sex Ratio (CSR), and others. Recognizing that child marriage leads to coerced pregnancies, domestic slavery, maternal mortality and morbidity, and a higher risk of sexual and reproductive health for girls.[11] Courts “in India have also found that child marriages force girls into domestic slavery and to raise children when they too are children.[12]
  • One of the objectives was to come up with ideas about how to encourage women to pursue higher education. In 2019-2021, 23.3 percent of women aged 20 to 24 married before the age of 18, down from 26.8% in 2015-2016, according to the National Family Health Survey-5.

Positive Aspects

The bill will bring many positive changes in the lives of millions of women. Some of them are discussed below.

Education

  • Depriving a girl of an education starts a cycle in which her family becomes illiterate as a result of her illiteracy. Today’s girl child is invariably tomorrow’s mother; as a mother, she serves as her child’s first teacher. If she is educated, she will be able to provide a good upbringing for her children. At the micro level, educated women assist in the management of the entire family’s financial needs. At the macro level, educated women contribute to the nation’s social and economic development. This bill will assist young women in finishing their basic education before marrying.

Health

  • Early marriage and, as a result, early pregnancy have a negative impact on mothers’ dietary levels, as well as their overall health and mental well-being. Unwanted pregnancies, early and repeated deliveries, increased risks of maternal mortality and morbidity, and risky abortion are all problems that married girls face when it comes to their reproductive health.[13]
  • Discriminatory and restrictive legislative, policy, and judicial choices that obstruct access to vital reproductive health services and information heighten these risks..[14]

Overall Impact on Nation

India “is home to the largest number of underage marriages in the world. The law will help to curb the menace of Child Marriage. The mother’s age at childbearing affects educational level, living conditions, health conditions, decision-making power of women.” An 18 year old has hardly completed her 12th till this time and in many cases is not capable of earning for a living. This bill will give them a buffer period of three years to learn some vocational skills, so that they are well informed of their rights on marriage, inheritance etc. and not dependent on the male spouse.

Critical Evaluation

We can’t ignore the fact that many girls from extremely conventional, regressive, and patriarchal backgrounds are able to escape their families’ grasp by marrying someone of their choosing once they reach adulthood. As a result of the proposed legal modification, such girls would have to wait three years longer; this period might be used by families and the larger community to fear and control such females.

Difficulty in Fighting Child Marriage: 

The law against underage marriage is difficult to implement. According to the facts, the law is largely utilised to punish young adults who enter into self-arranged weddings. The law against child marriage is ineffective. Child marriage has decreased, but only slightly: from 27% in 2015-16 to 23% in 2019-20, according to the National Family Health Survey (NFHS) 5. Deprived populations, such as Scheduled Castes and Scheduled Tribes, account for 70% of early marriages, and the rule will just shift these weddings underground rather than prohibit them.

Criminalisation of a Large Number of Marriages: 

The change will deprive the vast majority of Indian women who marry before the age of 21 of the legal protections that marriage otherwise affords, and effectively criminalise their families.

Lack of Education is a Bigger Problem: 

By the age of 18, 51% of young women in India with no education and 47% of those with only an elementary education had married.[15] Furthermore, according to a study conducted by the International Centre for Research on Women, girls who have dropped out of school are 3.4 times more likely to be married or already married than girls who are still in school.

In 2008, the Law Commission suggested that both boys and girls marry at the age of 18. The Indian Majority Act of 1875 permitted people under the age of 18 to engage into contracts. Why can;t they choose their life partners at the age of 18 if they can choose their Prime Minister or Chief Minister?

Child marriage is linked to poor maternal and child health as well as women’s low social status. Bihar and West Bengal have the highest rate of early marriages, with roughly 41% of such women. In general, where there has been improved access to inexpensive and high-quality education, as well as improved economic indicators, the average age at which women marry is more than 18 years old.[16] As a result, the government should focus on enhancing the basic quality of life for girls and women by providing such essentials.

The legal age of marriage in several Western countries is as low as 15 years. With almost 70 other countries mandating 18 as the legal age of marriage, India is already ahead of them. As a result, raising the marriageable age to 21 would be more detrimental to the legal structure than beneficial. The measure would simply serve to increase the difficulty of combating domestic abuse and marital rapes by causing more weddings to go underground and unrecognised.

Conclusion & suggestions

“In the modern age, when we talk of gender equality, the girl child must be given equal opportunity to develop like a male child. In fact, in my view, because of the patriarchal nature of our society, some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life, which would include her right to grow and develop physically, mentally and economically as an independent self-sufficient female adult”[17]

Justice Gupta, Independent Thought v. Union of India,

Supreme Court of India (2017)

This change complies with the Supreme Court’s directives. Though it is a positive start, simply raising the minimum age of marriage to 21 would not result in increased female involvement in higher education or the workforce. What is needed are long-term measures to promote gender equality and women’s empowerment by educating them, guaranteeing that they receive their appropriate share of property, providing safe work environments for them, and treating them as equals in general. Laws that contradict social norms are frequently unsuccessful due to sloppy execution. The Dowry Prohibition Act of 1961 is such example. Despite a legislation prohibiting the giving or receiving of dowry for the past sixty years, the practise of dowry remains unabated. This law will be nothing more than a paper tiger until the system for enforcing these rules is strengthened, as well as intensive community mobilisation and awareness efforts.

The bill was approved by the government, but only one woman MP was among the 31 members of the parliamentary group tasked with reviewing it. Hence, stakeholder representation should also be increased and maximum number of NGOs and human welfare organizations should be consulted. 

Furthermore, because child marriage is a social and economic issue, the solution to delaying it is to ensure that children have access to education. Skills and business training, as well as sex education in schools, will be beneficial. The government should look into expanding girls’ access to schools and universities, as well as their transportation to these institutions from remote places.

On the rise in the age of marriage, extensive public awareness campaigns and outreach programmes are needed to encourage social acceptance of the new legislation, which they claim will be considerably more effective than coercive measures.


[1]Birodkar Sudheer, “Hindu Social Customs” Final Report of the Red Elephant Foundation, (December 2013).

[2]Office of the Registrar General & Census Commissioner, India, “Census 2011” available at <https://censusindia.gov.in/2011-common/censusdata2011.html&gt;

[3] The Prohibition of Child Marriage (Amendment) Bill, 2021, s. 1.

[4] UNICEF, Child Marriage in India – An analysis of available data (2012), at 9; Word Vision UK, “Untying the Knot, Exploring early marriage in fragile states” (2013), at 35.

[5] Editorial, “Ending child marriage in India” The Guardian, March 3, 2011.

[6] Supra note 4 at 14; Editorial, “Child marriage cases on the rise in Trichy” The Times of India, June 5, 2013.

[7] UNICEF, Background paper for Report on State of the World’s Children, (2007).

[8] Amy Friedman, “Why is it so hard to combat child marriage?” Time Magazine, June 28, 2012.

[9] Name changed to protect privacy.

[10] Dependent, deprived: Child brides in India tell their stories, 10 June 2015 available at <https://www.unfpa.org/news/dependent-deprived-child-brides-india-tell-their-stories.&gt; (last visited on February 12, 2022).

[11] Gulnara Shahinian, “Thematic report on servile marriage”, para. 14, U.N. Doc. A/HRC/21/41 (July 10, 2012).

[12] Association for Social Justice & Research v. Union of India & Ors., W.P. (2010) 535; T. Sivakumar v. The Inspector of Police, H.C.P. (2011) 907.

[13] World Health Organization, “Understanding and addressing violence against women: Sexual violence” 6 (2012), available at http://apps.who. int/ iris/bitstream/10665/77434/1/WHO_RHR_12.37_eng.pdf. (last visited 12th Feb, 2022).

[14] Human Rights Council, “Report of the Working Group on the issue of discrimination against women in law and in practice”, para. 70, U.N. Doc A/HRC/29/40.

[15] UNFPA, “State of the World Report 2020”

[16] Ministry of Health and Family Welfare “The National Family Health Survey 2019-21 (NFHS-5)” available at <http://rchiips.org/nfhs/NFHS-5_FCTS/India.pdf&gt;.

[17] Independent Thought v. Union of India & Anr., W.P. (C) 382 of 2013, S.C.C., para. 70 (Justice Deepak Gupta).


Author: Mahak Saxena


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