prohibition of child marriageAdvocate Tanwar

Child Marriage in India: Legal Framework, Judicial Developments and Emerging Approaches

Introduction

Child marriage remains a persistent challenge in India despite comprehensive legal prohibition. According to the National Family Health Survey-5 (2019-21), nearly 23.3% of women aged 20-24 were married before 18 years of age. This article examines India’s legal framework prohibiting child marriage, contemporary implementation challenges, recent judicial developments, and emerging legal approaches to strengthen protection mechanisms within the Indian context.

Evolution of Legal Framework in India

  • Historical Development

India’s legal approach to child marriage has evolved significantly over decades:

The Child Marriage Restraint Act, 1929 (also known as the Sarda Act): This pioneering legislation established minimum ages for marriage at 14 for girls and 18 for boys. While groundbreaking for its time, it contained limited penalties and classified child marriages as voidable rather than void, significantly limiting its effectiveness.

The Prohibition of Child Marriage Act, 2006 (PCMA): This landmark legislation replaced the 1929 Act, strengthening prohibitions by:

  • Setting minimum marriage ages at 18 for girls and 21 for boys
  • Enhancing punitive measures against those who perform, conduct, or direct child marriages
  • Creating the position of Child Marriage Prohibition Officers (CMPOs)
  • Allowing child marriages to be declared void in certain circumstances
  • Providing maintenance and custody provisions for children from annulled marriages
  • Constitutional Framework

India’s constitutional provisions provide the foundation for child marriage prohibition:

  • Article 15(3) empowers the state to make special provisions for women and children
  • Article 21, guaranteeing the right to life and personal liberty, has been judicially interpreted to include protection from child marriage
  • Article 21A establishing the right to education has been legally connected to child marriage prevention
  • Article 39(f) directing that children be given opportunities for healthy development in conditions of freedom and dignity
  • Personal Laws and Legal Pluralism

A distinctive feature of India’s legal landscape is the coexistence of secular law (PCMA) with various personal laws governing marriage for different religious communities:

  • Hindu Marriage Act, 1955: Sets minimum age requirements consistent with PCMA but continues to recognize child marriages as valid though voidable
  • Muslim Personal Law: Under certain interpretations, permits marriage after puberty
  • Indian Christian Marriage Act, 1872: Prescribes minimum ages but with different procedural requirements
  • Juvenile Justice Act, 2015: Defines child marriage as a form of cruelty against children

Supreme Court and High Court Jurisprudence

Several significant judicial decisions have shaped India’s legal approach to child marriage:

  1. Independent Thought v. Union of India (2017)

In this watershed case, the Supreme Court criminalized sexual relations between a man and his minor wife, effectively harmonizing the PCMA with the Protection of Children from Sexual Offences Act (POCSO). The court ruled that Exception 2 to Section 375 of the Indian Penal Code (which exempted marital rape of a wife aged 15-18) was unconstitutional.

  • Court on its Own Motion v. State of Jharkhand (2015)

The Jharkhand High Court directed the implementation of compulsory marriage registration and age verification mechanisms.

  • Lajja Devi v. State (2012)

The Delhi High Court ruled that the PCMA has an overriding effect over personal laws, establishing that the secular prohibition takes precedence over religious personal law provisions.

  • Hardev Singh v. Harpreet Kaur (2019)

The Supreme Court clarified that child marriages remain voidable even under the PCMA, highlighting continued legislative reluctance to invalidate all child marriages automatically.

Judicial Activism and Directives

Indian courts have increasingly issued directives to strengthen implementation:

  • The Karnataka High Court in K. Vijaya v. State of Karnataka (2018) mandated comprehensive data collection on child marriages and obligatory reporting systems.
  • The Rajasthan High Court in Rajasthan State Commission for Protection of Child Rights v. State of Rajasthan (2021) issued directives requiring coordination between various departments for prevention.

Contemporary Legal Challenges

Despite comprehensive legal frameworks, implementation faces several challenges:

  • Inadequate CMPO Infrastructure: Most states have insufficient numbers of Child Marriage Prohibition Officers, with many holding the position as an additional charge.
  • Birth Registration Issues: Incomplete birth registration systems hamper age verification, with the Registration of Births and Deaths Act, 1969 implementation varying widely.
  • Non-registration of Marriages: The absence of mandatory marriage registration across all communities creates enforcement difficulties. Despite Supreme Court directives in Seema v. Ashwani Kumar (2006) mandating marriage registration, implementation remains inconsistent.
  • Jurisdictional Conflicts: Tensions between PCMA and personal laws create jurisdictional confusion, particularly regarding the validity of marriages already conducted.

Recent Legislative Developments

The Prohibition of Child Marriage (Amendment) Bill, 2021: Seeks to:

  1. Raise the marriage age for girls from 18 to 21, bringing it equal with boys
  2. Make all child marriages automatically void rather than voidable
  3. Override all personal laws with respect to marriage age
  4. Enhance penalties for facilitating child marriage

Integration with Other Legal Frameworks

Recent legal approaches integrate child marriage prohibition with other protective frameworks:

  • Protection of Children from Sexual Offences Act (POCSO), 2012: Court judgments increasingly recognize the intersection between POCSO and PCMA, holding that marriage does not legitimize sexual relations with minors.
  • Juvenile Justice (Care and Protection of Children) Act, 2015: Section 2(14) includes children married below the lawful age as “children in need of care and protection,” creating additional legal protections.
  • Right to Education Act, 2009: Legal interventions increasingly connect compulsory education until age 14 with child marriage prevention.

Emerging Legal Approaches

An emerging approach involves linking educational rights with child marriage prevention:

  • Kanyashree Prakalpa in West Bengal: This legally backed scheme provides financial incentives for girls to remain unmarried until 18 and continue education, with legal provisions for monitoring and compliance.
  • Conditional Cash Transfer Programs: Several states have implemented legally mandated conditional cash transfer programs like “Apni Beti Apna Dhan” in Haryana, where benefits are contingent on girls remaining unmarried until legal age.
  • Integrated Child Protection Scheme: This provides a legal framework for education-focused interventions to prevent child marriage.

State-Level Legislative Innovations

Several states have pioneered enhanced legal approaches:

  • Compulsory Marriage Registration: States like Rajasthan and Gujarat have implemented stricter marriage registration requirements with age verification mechanisms.
  • Child Marriage Prevention Committees: States like Odisha have created legally mandated village-level committees with reporting powers and legal authority to intervene.
  • Special Courts: Designated special courts in states like Karnataka and Maharashtra specifically handle child marriage cases, improving judicial response.

Technology-Enhanced Legal Enforcement

Digital innovations are strengthening legal implementation:

  • Child Marriage Prevention Web Portals: States including Maharashtra and Telangana have created online systems for reporting and tracking potential child marriages.
  • Aadhaar-Linked Age Verification: Several states have implemented mandatory Aadhaar-based age verification before marriage registration.
  • Mobile Applications: Apps like “Baal Vivah Virodh Abhiyan” in Rajasthan enable community reporting with legal response mechanisms.

Conclusion: The Path Forward

India’s legal framework for prohibiting child marriage demonstrates both comprehensive prohibition and persistent challenges. Contemporary developments suggest several key trajectories:

  • Moving toward making all child marriages automatically void rather than merely voidable
  • Harmonizing age requirements across PCMA and personal laws
  • Strengthening implementation infrastructure through mandatory registration and verification
  • Greater integration with educational and child protection frameworks
  • Enhanced digital monitoring and reporting systems

The proposed amendments to raise the marriage age for girls to 21 and declare all child marriages void represent significant potential advances, though they face considerable sociocultural resistance. The continued evolution of India’s legal approach must balance clear prohibition with sensitivity to social realities while maintaining the paramount importance of protecting children’s rights and welfare.

Contributed By: Hetu (Intern)