POSITION OF HINDU LAW IN REGARDS TO CHILD MARRIAGE By- Jerin Abraham

POSITION OF HINDU LAW IN REGARDS TO CHILD MARRIAGE

Authored By- Jerin Abraham

Abstract

There has been an increase in the conversation around the minimum age of marriage in our country due to the bill introduced by the Government. Child marriage is a long-time tradition in South Asia and almost half of the women between 20 – 24 years are reported married. India has the world’s largest population of child brides. It is termed as a violent action against children by UNICEF.  There is a massive grey area in India especially the Hindu Personal law in terms of the validity of child marriage. Even though there is a clear minimum age mentioned in the Hindu Marriage Act 1955 and the other acts that govern these provisions. Yet there is silence maintained in terms of the validity of child marriage and this has provided an easier route for such practices to carry on. This article attempts to understand the provisions that govern the practice of child marriage and also attempts to give recommendations on how the following status quo should be changed.

Introduction

      There was a recent conversation about Child Marriage on a National level on the age limit of marriage in India. It is a forgotten and mostly ignored reality in our country. There was been a recent proposal to increase the age limit of marriage and thereby a bill has also been introduced in the Lok Sabha regarding the same. Yet there is a need to understand that child marriage itself is a contentious topic in the Indian legal system. There is not a uniform secular position that law takes in regards to Child Marriage is defined as a marriage of a girl or boy before the age of 18 and refers to both formal marriages and informal unions in which children under the age of 18 live with a partner as if married. Child marriage affects both girls and boys, but it affects girls disproportionately, especially in South Asia. South Asia has the highest rates of child marriage in the world. Almost half (45%) of all women aged 20- 24 years reported being married before the age of 18. Almost one in five girls (17%) are married before the age of 15. Child marriage violates children’s rights and places them at high risk of violence, exploitation, and abuse. India has the largest number of brides in the world – one-third of the global total. Bangladesh has the highest rate of child marriage in Asia (the fourth-highest rate in the world).[1]

    Child marriage is termed as a violent action against a child by UNICEF. India has had a long-standing tradition of Child marriage and it requires a stringent legal framework to make sure that it doesn’t the future of all its children. The validity of marriages in India even if they are underage is based more on their acceptability by religious personal laws. Conversations of a uniform civil code have been more prevalent than any steps taken to implement it. Yet Child Marriage is not a problem that is affecting one’s personal life and more than it affects society by losing the future of children who are thrust with such responsibilities that don’t allow them to go through their early development which puts them on a way to be responsible and productive future citizens of our great country. The laws related to child marriage are varying and are based on the personal laws of each religion. For this article, the author will be a focus on the Hindu Personal Laws and the provisions for Child Marriage.

Impact of Child Marriage

     The minimum age for marriages is provided as 18 years for girls and 21 years for boys Section 2(a) of the Child Marriage Restraint Act 1929.[2] In Section 2(b) of the act, it is provided if either of the parties getting married is a child within the definition of the act then the ensuing marriage will consider a child marriage.2 A bill to increase the age for the female minimum age to marry to 21 has been introduced and sent for further evaluation. The 2nd National Family Health Survey, conducted in 1998-99, pointed towards a rise in the age at marriage. The average age for women marrying for women has risen to 19.7 years in 1998-99 from 19.3 years in 1991. Yet there was an alarming average of 34% of women in the 15-19-year age group is already married as against 38.4%, according to the first NFHS. The positive aspect was that the medium age at first marriage has risen in the last six years from 17.4 to 18 years in the 20-24 age cohorts. Marriage at very early ages was seen as becoming less common. As per NFHS-2, 4.7% (as against 7%) and 14.3% (as against 17%) of girls are married before the age of 13 and 15, respectively in the 15-19 age cohort. The survey also shows that 50% of women currently aged 20-24 were married before 18 as against 54.2% shown in NFHS-1. So, there is a decline of 4% in six years. However, the urban-rural divide continues the same, with the percentage marrying early is much higher in rural (58.6%) than urban areas (27.9%).[3]

     According to NFHS 4 data, the prevalence of child marriage amongst 15-19- and 20-24-year-olds was 11.9% and 26.8% respectively for girls in India, highlighting a declining trend in child marriage. Child marriage prevalence in rural and urban India is 14.1% and 6.9% respectively for age group 15-19 and 31.5% and 17.5% for rural and urban areas for age group 20-24-year-olds. Prevalence of below legal age marriage for single-year age from 15 to 19 years highlight that prevalence of below legal age marriage increases as girls transition through adolescence with lowest prevalence reported at age 15 (2.7%) and highest at age 19 (20.5%).

     A comparison of below legal age marriage among women aged between 15-19 and 20-24 years by wealth index of the household shows that economic status of the households are negatively associated with the prevalence of child marriage across ages though significantly more child marriages were reported amongst 20-24-year-old women. It is observed that child marriage is more prevalent amongst women from bottom wealth tercile households for both age groups (16.6% and 41.5% respectively) and least prevalent amongst women from the top tercile households (5.4% and 13.4% respectively).[4]

    As it can be noted one thing is certain there is more than a definite connection between poverty and child marriage. There is an obvious mentality a girl child doesn’t belong to the family in which is she is born but she is someone who will be handed over to another family and therefore families are apprehensive to spend money on her education. Especially when the amount of money that is disposable on the education is little and there has to be a toss-up that has been made between the education of a male child or the needs of the family and the food, clothes and other basic requirements of the family. Therefore, these families choose to get their girl child married so they can relinquish their responsibilities. UNICEF has found out that in terms the ratio of prevalence of children among boys is just 1/6 as compared to that of the Child Marriage amongst girls. It also points to the fact that there is more possibility for a girl child who is married early are more probable to face domestic abuse. These girls have a threat to their health because of their early marriages and this dilapidated health they hand over to children further makes it difficult for the revival of the country. Child Bride often becomes pregnant by their adolescences and therefore invites complications during birth to both themselves and their unborn child. According to the United Nations, maternal mortality which indicates the number of women dying in childbirth or from pregnancy-related causes are 25 times higher for girls under 15, and two times higher for 15-19-year-olds.[5] Such practices also take a heavy toll on the physical and mental growth of the child in its society and alienate them from the overall community. 

General Laws concerning Child Marriage

       A marriage which is solemnized in contravention with prescribed age of marriage, by the General Laws. International Covenants such as The Convention on Elimination of all Forms of Discrimination against Women (CEDAW) and Convention on the Rights of Children (CRC) have prescribed the minimum age for marriage. In India, The Child Marriage (Restraint) Act, 1929 and now the Prohibition of Child Marriage Act, 2006 has prescribed the age of marriage which is 18 for girls and 21 for boys. In India, Child Marriage can be solemnised as per the respective personal laws and as such for “solemnization” of child marriage, there is no single law.

     UNICEF in their report Early marriage & Child Spouses in 2001 concluded that the risk of premature labour that is the Maternal mortality amongst girls aged between 15-19 years is about three times higher, babies born to a mother under the age of 18 tend to have higher rates of child mortality and the young babies lack parenting skills and decision-making powers.[6] It showed those child marriages are a harmful traditional practice and has also shown that the highest rate of domestic violence among women married by 18, is higher as compared to the ordinary marriages.

 There are human rights issues as is the case of child abuse. It is the fit case of child abuse as child marriage denies the basic human rights to the spouses especially the girl child such as Health, Education and well-being.[7] In the law commission report, the girl child was held to be the more vulnerable to the ill effects of child marriage. This is because for her childbearing and rearing, domestic violence and even a gross lack of parental skills due her to young age put her in a disadvantaged situation and many at the time the in-laws don’t consider her young age while dealing with her for her misgivings as a good daughter in law. It is not to be mentioned that when she is married off at such a young age her basic education is also ignored.

      In the case of Delhi High court in Association for Social Justice & Research v. Union of India & Ors[8] wherein a girl of 11-12 years was married off to a man of 40 years by her parents for a certain consideration was being traced by civil society. The Delhi High Court held that AK Sikri J in his judgment highlighted the following difficulties faced by a girl child. He summarised Some of the ill-effects of child marriage as under

• Girls who get married at an early age are often more susceptible to the health risks associated with early sexual initiation and childbearing, including HIV and obstetric fistula.
• Young girls who lack status, power and maturity are often subjected to domestic violence, sexual abuse and social isolation.
• Early marriage almost always deprives girls of their education or meaningful work, which contributes to persistent poverty.
• Child Marriage perpetuates an unrelenting cycle of gender inequality, sickness and poverty.
• Getting the girls married at an early age when they are not physically mature, leads to the highest rates of maternal and child mortality.

     Further, he also held that even though the marriage is not void under civil law the accused must face legal action under the Prohibition of Child Marriage Act, 2006. The purpose and rationale behind the Prohibition of Child Marriage Act, 2006 is that there should not be a marriage of a child at a tender age as he/she is neither psychologically nor physically fit to get married. There could be various psychological and other implications of such marriage, particularly if the child happens to be a girl.8

     The legislation of the Child Marriage Restraint Act 1929 created a bar for the parties to a marriage to curb the social evil of child marriage. The Prohibition of Child Marriage provides a legal instrument to punish the perpetrators of the Child Marriage and also allow spouses who are party to such a marriage to repudiate their marriage if they feel that the marriage is not in their interest. It is gender-neutral in terms of the applicable provisions. The legal validity depends on the way each of the personal laws treats them.  The Prohibition of Child Marriage Act, 2006 has implemented some ancillary rules relating to the “maintenance” and “the legitimacy of the child” that arises out of such child marriage. According to S.3 of The Prohibition of Child Marriages Act 2006 ‘Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.’[9] The petition must be filed by a party to the marriage who was a child at the time and within 2 years of attaining the age of majority. While S.12 of the same act provides that the marriage of a minor child is to be void in certain circumstances.  Where a child, being a minor-

• Is taken or enticed out of the keeping of the lawful guardian
• By force compelled, or by any deceitful means induced to go from any place; or
• Sold for marriage, and made to go through a form of marriage
• If the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

Section 4 provides that the district court may provide the child born out of such a marriage the right to maintenance, residence and custody of the child in favour of the female spouse until her remarriage. Section 5 gives the provision that the child born out of such a marriage is legitimate.

Provisions in the Hindu Marriage Act, 1955

        In the act, child marriages are neither void nor voidable. S. 5 of the Hindu Marriage Act provides conditions for a Hindu marriage. Clause iii of the sec provides the age limit as ‘the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage’.[10] This should point to the fact that there is an age limit and anything below the same age is violative of conditions of marriage under the Hindu marriage act. Sec 11 provides for Void marriages i.e. ‘Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.’10 Further S. 12 provides for Voidable marriages and both these sections don’t mention the validity of the marriage if it is solemnised between parties that are below 18 years and 21 years depending upon the sex of the party. In S.13(2)(iv) of the Act, there is a provision to the female who is a party to a marriage which was held when she was a minor and below the stipulated age in the act. It states that ‘her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.’ This automatically means unless this recourse is taken by the female spouse a child marriage is valid in the Hindu Marriage Act 1955.

     In the case of Neetu Singh vs The State & Ors.[11] Delhi High Court held that child marriage is neither void nor voidable but it is punishable. In Roop Narayan Verma vs. Union of India,[12] the High Court upheld the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by stating that it is the exercise of power provided under Art. 15(3) of the Indian Constitution. There is an obvious silence in terms of the validity of child marriage in the Hindu Marriage Act. There can be two sets of possibilities that be observed in terms of validity.

1. It is void as it is against the provisions of S.5(iii) of the Hindu Marriage Act
2. It is neither void nor voidable but valid unless repudiated u/s 13(2)(iv) of the Act

     In the case of Pinninti Venkataramana & Anr. vs State,[13] the court held that if Child Marriage was void then the lawmakers wouldn’t have provided for a clause to the wife to repudiate the marriage. Hence is the reason why there is no mention of the same in the S. 11 or S.12 of the Act. Thereby agreeing with the first possibility. In the case of Lila Gupta vs Laxmi Narain & Ors,[14] the Supreme Court held that there even if S.5 of the Act provides for a threshold for marriage it doesn’t render a marriage void if not met. It was observed that it would be dangerous if the law has not treated a condition of marriage to make it void but then the condition is still treated in the same way. In the case of the T.Sivakumar vs The Inspector Of Police[15] the court that marriage in violation of condition provided in S.5(iii) is not invalid marriage but neither is it a valid marriage in its strictest sense.

Conclusion and Recommendation

     Child Marriage is every form of practice a gross violation of the human rights of the children involved. It steals from the gift of childhood and ushers them into a responsibility they are not ready for at all. There is a need for children to grow and learn from their surroundings to make them responsible citizens. Yet this practice robs them of many opportunities and therefore it was recognised earlier itself that there is a need to stop this practice and that is why there has been an onset of laws that were created against this practice. In India, there has been a steady reduction of child marriages in the previous decades and it is a positive sight for the Indian Social structure. The recent proposal is also to increase the age of marriage for women to 21 years to create gender neutrality. Such a limit helps improve infant mortality and maternal mortality age which has been declining as well.

The following are the recommendations of the research.

• Provide for an express bar on child marriages across all personal laws.
• Provide for maintenance, residence and custody rights for children arising out of such marriages.
• Provide for more opportunities to the girl children for education to avoid early marriages
• Provide for more opportunities to improve economic conditions of lower strata of women

References

Books

Dr. P. Diwan.2021. Modern Hindu Law (24th Edition). Faridabad. Allahabad Law Agency

Case Laws

• Association For Social Justice v. Union Of India & Others. AIR 2001 Guj 71, (2000) 3 GLR 1997
• Lila Gupta vs Laxmi Narain & Ors. 1978 AIR 1351, 1978 SCR (3) 922
• Manisha Singh vs. State of NCT. AIR 2006 Delhi 37, 126 (2006) DLT 28, I (2006) DMC 1
• Neetu Singh vs The State & Ors. 1999 IIAD Delhi 37, 77 (1999) DLT 601, I (1999) DMC 634,
• 1999 (49) DRJ 70, (1999)121 PLR 47
• P. Venkataramana vs. State, the Andhra Pradesh. AIR 1977 AP 43
• Roop Narayan Verma vs. Union of India. AIR 2007 Chh 64
• Sushila Gothala vs. State of Rajasthan.

Legislations

• Child Marriages Prohibition Act 1929
• Constitution of India, 1950
• Hindu Marriage Act, 1955
• Prohibition of Child Marriage Act, 2006

Government /Official documents

• Dr. A.K. Gopal & Dr. D. Paul & Ors. 2008. A Study on Child Marriage in India: Situational
• Analysis in Three States. Centre For Social Research & National Institute of Public Cooperation
• and Child Development
• Law Commission of India. 2006. The Law Commission Of India (Report No. 205). Law
• Commission of India. [Online]. Available

https://lawcommissionofindia.nic.in/reports/report205.pdf 

• n.d. Child marriage. UNICEF South Asia. [Online]. Available

https://www.unicef.org/rosa/what-we-do/child-protection/child-marriage   

• UNICEF. 2001. Early marriage & Child Spouses. UNICEF. [Online] Available:
• https://www.unicef-irc.org/publications/pdf/digest7e.pd

[1]  n.d. Child marriage. UNICEF South Asia. [Online]. Available https://www.unicef.org/rosa/what-we-do/child-protection/child-marriage

[2] Child Marriage Restraint Act 1929 (Act 19 of 1929)

[3] Ministry of Health and Family Welfare. National Family Health Survey (NFHS-2), (October, 2000)

[4] Ministry of Health and Family Welfare. National Family Health Survey (NFHS-4), (December, 2017)

[5] World Health Organisation. Maternal Mortality Fact Sheet. (WHO, 2014)

[6] UNICEF. Early Marriage Child Spouses. (UNICEF, March 2001)

[7] Law Commission of India. Proposal to Amend the Prohibition of Child Marriage Act, 2006 And Other Allied Laws. (Ministry of Home Affairs, February 2008)

[8] Association for Social Justice & Research v. Union of India & Ors. AIR 2001 Guj 71, (2000) 3 GLR 1997

[9] The Prohibition of Child Marriage Act, 2006 (Act No. 6 Of 2007)

[10] The Hindu Marriage Act, 1955 (Act 25 of 1955)

[11] Neetu Singh vs The State & Ors. 1999 IIAD Delhi 37, 77 (1999) DLT 601, I (1999) DMC 634, 1999 (49) DRJ 70, (1999) 121 PLR 47

[12] Roop Narayan Verma vs. Union of India, AIR 2007 Chh 64

[13] Pinninti Venkataramana And Anr. vs State. AIR 1977 AP 43

[14] Lila Gupta vs Laxmi Narain & Ors. 1978 AIR 1351, 1978 SCR (3) 922

[15] T.Sivakumar vs The Inspector Of Police. AIR 2012 Mad 62