CONFLICTS IN LAWS REGULATING CHILD MARRIAGES IN INDIA - A NEED FOR HARMONIZATION BY - GURUDUTT & NISHU KUMAR

CONFLICTS IN LAWS REGULATING CHILD MARRIAGES IN INDIA - A NEED FOR HARMONIZATION

AUTHORED BY - GURUDUTT[1]

                                                                                & NISHU KUMAR[2]

Abstract

The issue of Child Marriage has been one of the most debated and sensitive matter  in India. Whenever the State has tried to reform laws regulating child marriages, it has faced the resistance from the society. In 1929, when for the first time an honest legislative step was taken to regulate it through Sharda Act, it was hoped that soon it will be a matter of the past. But even today, more than half of the world’s child bride live in India. In India, recent statics has given some hope as child marriage reduced from 47.4% in 2005-06 to 26.8% in 2015-16, registering a decline of 21% during the decade. In the last five years, it declined by 3.5% points to reach 23.3% in 2020-21, according to the latest National Family Health Survey-5 data.  

While there has been progress in reducing the prevalence of Child Marriages, the conflicts in various laws regulating it, makes the issue more complex. While under the Prohibition of Child Marriage Act, 2006 the Age of Marriage for boys is 21 year and  for  girl is 18 years, there has been questions whether this Act will override personal religious laws and customs. So, this has resulted in grave inequality based on gender and religion where a boy with Hindu faith has legal right to marry only after attaining  21 years of age, while a muslim boy and girl can marry after attaining merely 15 years of age under the Shariat Act.  In this paper, the conflicts between personal religious laws and secular laws regulating child marriages in India will be explored along with observing judicial inconsistencies on the same issue.

Key Words - Child Marriage, POCSO, PCMA, Shariat Act, Age of Marriage.

Introduction

The Constituent Assembly of India envisaged country where everyone will have equal social, political and economic justice irrespective of their sex, religion, race, caste or ethnicity.[3] To achieve this aspiration for our newly independent country, the makers of the constitution included Directive Principles of the State Policy in the Constitution to act as a guiding light for the future generations of this country.[4] One of the important directive under it was to achieve uniformity of personal laws in the country and to diminish inequalities and inconsistencies among the laws of different religions.[5]

The first step towards this direction after independence was undertaken through introducing the Hindu Code Bill in the Parliament to unify laws regulating the majority religion in the country. The Bill faced a severe criticism and was later withdrawn and again reintroduced as four separate milder laws in the form of the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act.[6]  This was major step towards reforming the Hindu society by introducing monogamy, inheritance rights to women, introducing provisions of divorce and many other reformative provisions.

After this development, the major task remained to unify the personal laws of various religions through implementing Uniform Civil Code. The main objective behind implementation of a uniform Civil code in India is that it sets a law to govern the personal matters of all the citizens irrespective of religion. One of the major step towards this direction will be implementing a similar age for marriage for different religions.

The first legislation regulating age of marriage was the Child Marriage Restraint Act in 1929 (CMRA), also popularly known as the Sarda Act, known after the chief proponent of the Act, Harbilas Sarda raised the minimum age of marriage to 14 years. The Act was amended in 1940 to raise the age at 15 years and in 1978, by a further amendment, the minimum age was increased to 18 years.

At present the law governing child marriages i.e. the Prohibition of Child Marriage Act, 2006 (PCMA) defines ‘child’ under Section 2(a) of the Act as “a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.” It prohibits child marriage or “a marriage to which either of the contracting parties is a child”.

Further, legislation governing marriage under personal laws of several religions, namely, the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Special Marriage Act, 1952, and the Hindu Marriage Act, 1955, mandate women to be at least 18 years of age and men at least 21 years of age to be eligible for marriage. Under Muslim personal law, a girl is permitted to marry when she attains puberty or completes the age of 15 years.

The differential minimum ages for marriage fixed for men and women of different religions was challenged at the Supreme Court by advocate Ashwini Kumar Upadhyay, through a public interest litigation on October 26, 2020.[7] His petition raised the plea to set a uniform minimum age by increasing the permissible marriage age applicable to women to 21 years. Upadhyay sought the transfer of petitions filed in the Delhi High Court, dated August 14, 2019, and a similar petition filed in the Rajasthan High Court dated September 12, 2019. This petition was dismissed by the Apex observing that some matters should be left  to the wisdom of the Parliament.

Later, the Government of India on December 21, 2021, introduced the Prohibition of Child Marriage (Amendment) Bill, 2021,  in Lok Sabha to increase the minimum age of marriage of women to 21 years, overriding any other law, custom or practice, including faith-based personal laws. Currently, the bill is pending with standing committee of the Parliament for deliberations on this issue.

Gravity of the problem of Child Marriages

Child marriage is a social issue that has been prevalent in India for a long time. In every religion, caste and community, child marriages are happening even after so many laws being enacted against it.[8] Child marriage has serious consequences for the health and well-being of girls. Child brides are often forced to drop out of school, and they face a higher risk of domestic violence, sexual abuse, and maternal mortality.[9] Child brides are at a higher risk of maternal and child mortality, early pregnancy complications, and other health problems due to premature childbirth. They are also more likely to suffer from malnutrition and sexually transmitted infections.[10]

The prevalence of child marriage varies by region and state in India, with higher rates in rural areas than in urban areas. The highest prevalence of child marriage is in  West Bengal, Bihar and Tripura more than 40% of women aged 20-24 years married below 18.[11] In contrast, the southern states of Kerala and Tamil Nadu have much lower rates of child marriage.[12]  Religion also plays significant factor as prevalence of child marriages differs on the basis of religion also. While it is 23% among Hindus and 26% among Muslims, it is only 15% among Christians.  These differences also indicate that child marriage has direct relationship with the socioeconomic development of the society.[13]

In last couple of decades, achievements have been made to reduce the prevalence of child marriages in India. It reduced from 47.4% in 2005-06 to 26.8% in 2015-16, registering a decline of  almost 21% percent during the decade. In the last five years, it declined by 3.5% points to reach 23.3% in 2020-21, according to the latest National Family Health Survey-5 data.[14] 

This shows with right approach and steps like increasing the legal age of marriage, implementing laws to protect girls, and launching campaigns to raise awareness about the negative impacts of child marriage, this problem can be solved. By setting a higher age limit for marriage, the government can help ensure that girls have completed their education and are better equipped to make informed decisions about their lives. Raising awareness about the negative impacts of child marriage through campaigns and educational programs is also crucial. Such programs can help shift cultural attitudes towards child marriage and promote the value of education and empowerment of girls. Additionally, providing economic and social support to families can help alleviate the financial pressures that often lead to child marriages.

Muslim Personal Laws vs The Prohibition of Child Marriages Act, 2006

The issue of conflict between personal law or religious customs and secular laws is a complex one, and it has been a subject of debate in India for a long time. On the one hand, personal laws and religious customs reflect the cultural and traditional practices of a community, and they are an essential aspect of the identity of the community. On the other hand, secular laws are enacted by the state to ensure equality and justice for all citizens, irrespective of their religion or community.

In India, the Constitution guarantees the right to freedom of religion, but it also provides for the state's power to regulate religious practices to ensure public order, morality, and health.[15] The Constitution also provides for the principle of the rule of law, which means that no person is above the law, and all are subject to the same laws. So, any personal law or custom, must pass the test of public order, morality and health to be implemented.

Lawyer, legal writer and judge D.F. Mulla, in Article 195 of his treatise Principles of Mohammedan Law (1907) states that Muslim personal law (shariat) considers a girl capable of entering a contract of marriage when she attains puberty. However, the PCMA defines any girl below the age of 18 as a child and considers marriage involving such a child as voidable at the option of the child.[16] The marriage is illegal but not void per se. If the girl does not file a petition for a decree of nullity, the marriage does not become void. Thus there is apparent inconsistency between the two laws regulating marriages.

The question that arises here is whether these secular laws override personal laws. Unlike POCSO Act,[17] nowhere in the PCMA this is explicitly specified. Neither is there a clarification with respect to the special nature of the laws to determine their overriding effect over personal laws. The lack of clarity in the relevant statutes and the differing opinions of the high courts have made it difficult to establish a clear and consistent legal position on the issue of conflict between personal laws and secular laws. This has created uncertainty and confusion, both for the legal practitioners and the general public.

In Md. Idris vs. State of Bihar and Ors.,  way back in 1980 by Patna High Court ruled that as per the interpretation of Muslim law, by Mulla, in Mulla’s Text on Principles of Muslim Law, the age for a girl to attain puberty is 15 years of age therefore any marriage with a girl who has attained puberty in considered valid in the eyes of the law. Later, even after implementation of PCMA, again in 2012 the Delhi High Court in Mrs. Tahra Begum vs. State of Delhi & Ors[18] held that the age of puberty is 15 years of age and girl is free to marry anyone of her choice, regardless of the consent of the legal guardian. The court acquitting the accused-husband from the charge for kidnapping held that she is at liberty to decide when to marry and where to live.

But in the same year, ignoring well-settled law pertaining to the age of marriage in Muslim personal law, Karnataka High Court took a contrary approach in Mis. Seema Begum vs. State of Karnataka.[19] In this case, the declaration was sought by a Muslim girl, who was 16 years of age when a petition was filed, that she is not governed by the provisions of Prohibition of Child Marriage Act, 2006 and in her case, it is the Muslim personal law, which has allowed her to marry on 15. The petition was rejected and no such declaration was issued in her case.

The Punjab and Haryana High Court ruled in Javed versus the State of Haryana[20] in September of last year that Muslim personal law would apply to a Muslim girl's marriage. The court held that PCMA's Section 12 (marriage of a minor child to be void in certain situations) does not apply if a girl beyond the age of 15 marries someone of her choosing of her own free will. In this case, the girl's parents compelled her to marry her maternal uncle, and releasing her from their custody would have meant restricting her freedom. This aspect significantly affected the court's strategy.

Only a few months later, again in November, 2022 in Khaledur Rahman versus State of Kerala,[21] the Kerala High Court adopted the opposing stance and ruled that marriage is not an excuse to disregard the POCSO Act's applicability. The Muslim girl had been conceived by her husband when she was under the age of 18. The girl was a native of West Bengal who had been transported to Kerala after her marriage, and the court took note of her age, good health, and background. The husband was accused of kidnapping the woman as well. The POCSO Act, being a special law, would take precedence over personal laws as a result of all these circumstances, and the court came to the conclusion that the marriage was not legally legitimate as the girl below the age of marriage.

In an another case, Fija versus State (NCT of Delhi)[22], the Delhi High Court upheld the union of a young Muslim girl and a Muslim man in August of last year. The juvenile was being forced wedded to someone else, and there were claims that the parents had physically abused the child. Despite the fact that her husband was responsible for her pregnancy, the POCSO Act was not applied in this case, and it was determined that consensual sex between a husband and wife does not violate the law's goals and does not qualify as exploitation.

In a case involving a similar circumstance Mohammad Waseem Ahamad versus State,[23] the Karnataka High Court determined in October of last year that an arranged marriage had been properly performed in accordance with Muslim customs. The girl had gotten pregnant while still a minor, as she was at the time of the marriage. The court decided that prolonging the criminal proceedings would have been an abuse of the legal system since the victim might become hostile during the trial as a result of a joint affidavit that demonstrated the husband and wife had settled their disagreement. As a result, the husband and his family's charges under the PCMA, the POCSO Act, and the Indian Penal Code, 1860 were dropped.

Earlier in the famous case from Kerala, Shafin Jahan vs Asokan K.M,[24] the apex court had recognized that a Muslim women who has attained puberty can marry any person of her choice. But even after this judgement, there have been several instances of judicial conflicts on this issue as we have seen in the above mentioned cases. Currently, the case of NCPCR vs Gulam Deen[25] on the similar issue is pending in the Supreme Court.

In cases involving child marriages, the courts have often emphasized the welfare of the minor spouse and sought to protect their interests. However, the lack of uniformity in court decisions and the absence of clear legal principles can create uncertainty and confusion for legal practitioners and the general public. Therefore, it is expected that in NCPCR vs Gulam Deen, the apex court will this issue to rest forever and propound principles even for future conflicts.

The Way Forward - Prohibition of Child Marriage (Amendment), Bill, 2021

A task force led by Jaya Jaitly was established by the Union government in June 2020 to investigate the relationship between maternal and infant health and the age of marriage and motherhood, as well as other pertinent data points regarding nutrition and health.[26] The task force was mandated to propose legislative measures or modifications in support of its recommendations, among other terms of reference. Although the report of the task was not made public, it is speculated that it recommend to increase the Age of marriage to 21 years for everyone irrespective of gender or religion.

Soon, the Prohibition of Child Marriage (Amendment) Bill, 2021, was tabled  in Lok Sabha to increase the minimum age of marriage of women to 21 years, overriding any other law, custom or practice, including faith-based personal laws.    The Declaration of Objectives and Reasons of the Bill claims that the current laws fallshort of the constitutional requirement of gender equality between men and women when it comes to marriageable age. By bringing women at par with men in terms of the marital age, it seeks -

“to address the issues of women in a holistic manner, as a measure for                    empowerment of women, gender equality, increasing the female labour force             participation, make them self-reliant and to enable them to take decisions             themselves.”

The bill purports to override any other law, custom, usage or practice governing parties to a marriage. It intends to amend all other laws relating to marriage – the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Muslim Personal Law (Shariat) Application Act, 1937, the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 – to bring the minimum age of marriage for women at par with men.

Additionally, the bill allows for the filing of a nullification petition until five years after the female party reaches majority, or until the age of 23, as opposed to the PMCA, which permits a female party who was a child at the time of a marriage to file a petition to annul the marriage until two years after such party reaches the age of majority, or until the age of 20.

Conclusion

In conclusion, child marriage remains a significant problem in India, particularly among certain religions and communities.[27] The conflicting laws and customs regarding marriage have led to differing opinions and decisions by the courts, which have created uncertainty and confusion for legal practitioners and the general public.

To address this issue, there is a need for greater clarity and consistency in the legal principles governing child marriages and conflicts between personal laws and secular laws. Legislative reforms, such as the Prohibition of Child Marriage (Amendment) Bill, 2020, can play an important role in preventing child marriages and protecting the rights of young women. It is time to high to protect children from old and orthodox religious practices which are directly against the Article 25 of the Constitution.[28] Even various international instruments have repeatedly raised this issue.[29]

The dream of makers of Indian constitution should be implement and any step towards that direction should be welcomed by everyone.[30] These steps will result in greater unity and feeling of common hood among the citizens of the country. While what should be permitted age for marriage can still be an open question, to be decided solely on the basis of scientific evidence, the uniformity of that age is must step. Also, it should not be made an issue of religious controversy by prosecuting any single community.

It is also essential to establish clear legal principles and precedents in this area to ensure that the law is applied uniformly and consistently across the country. The government, civil society organizations, and communities need to work together to raise awareness about the negative impacts of child marriage and promote education and empowerment of young women. Only by working together can we create a society where every child has the right to choose their own future and live a life free from discrimination and violence. Overall, solving the problem of child marriage requires a multi-pronged approach that involves legal reform, enforcement, and social and cultural change. With sustained efforts and political will, it is possible to end the harmful practice of child marriage and ensure that girls are given the opportunity to fulfill their potential and lead empowered lives.

[1] Research Scholar, University of Delhi.

[2] Assistant Professor, IFCAI Ranchi.

[3] The Constitution of India,  art. 38.

[4] Sarkar S, Sarkar T, “Women and Social Reform in Modern India: A Reader”, Indiana University Press; 2008.

[5] The Constitution of India, art 44.

[6] Chavan N, Kidwai QJ. Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications; 2006.

[7] Ashwini upadhyaya vs Union of India 2023 LiveLaw (SC) 143.

[8] Goswami R, “ Child Marriage in India: Mapping the Trajectory of Legal Reforms. Indian Journal of Gender Studies”, 2010;17(2):277-292.

[9] Gastón CM, Misunas C, Cappa, “Child marriage among boys: a global overview of available data” in  Vulnerable Children and Youth Studies. 2019;14(3):219-228.

[10] Nour, NM (2009). "Child Marriage: a silent health and human rights issue". Reviews in Obstetrics and Gynecology. 2 (1): 51–56.

[11] National Family Health Survey-5, 2021.

[12] Ibid

[13] Bicchieri C, Baggio JA, Chen Y, Drichoutis A, Jiang J, et al. A social norms perspective on child marriage: The general framework. New York: UNICEF; 2014.

[14] Supra note 9.

[15] The Constitution of India, art 25.

[16] The Prohibition of Child Marriage Act, 2006,s. 2(b).

[17] POCSO Act, 2012, s. 42A.

[18] W.P. (Crl) 446/2012 and Crl. M.A. 3701/2012.

[19]  WRIT PETITION NO.75889 OF 2013.

[20] 2022 LiveLaw (PH) 276.

[21] 2022 LiveLaw (Ker) 601.

[22] W.P.(CRL) 763/2022 DHC.

[23] 2022 LiveLaw (Kar) 436.

[24] AIR 2018 SC 1933.

[25] Supreme Court Diary No. 35376-2022.

[26] “Task Force set up to examine matters pertaining to age of motherhood, imperatives of lowering MMR, improvement of nutritional levels and related issues”, PIB Press release available at https://pib.gov.in/PressReleasePage.aspx?PRID=1629832.

[27] Manu N. Kulkarni, Child Marriages and the State, (1994) 29 EPW 1884.

[28] Constitution of India, 1950art 39(f):– “The State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditional of freedom and dignity”.

[29] Universal Declaration on Human Rights (1948), art 16. ; International Covenant on Civil and Political Rights,(1966) art 23. ; Convention on Elimination of All Forms of Discrimination Against Women (1979), art 16.

[30] Chavan, Nandini; Kidwai, Qutub Jehan (2006). Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India