In 2006, India passed the Prohibition of Child Marriage Act to tackle the prevalent social evil in the country. The Prohibition of Child Marriage Act prohibits the solemnization of marriage below the age of 18 for girls and 21 for boys, and allows child marriages that have been voluntarily been conducted to be voluntarily voidable by the child who was party to the marriage within two years of attaining the age of marriageability. The PCMA was intended to be a positive step forward from India’s prior legislation on child marriage, the 1929 Child Marriage Act, that failed to curtail child marriages and to provide any remedies for married girls. However, despite the PCMA and other legal and policy commitments to end the practice, India continues to account for the highest number of child marriages in the world. One third of the world’s child brides live in India.
Child marriage in India stems from patriarchal social norms rooted in gender inequality that value women less than men and consider married women and girls to belong to their husband’s family. Moreover, the practice of child marriage continues to persist because of lack of access to education, concerns regarding women’s safety and considering women as economic liability. This belief is propogated by social conditions such as dowry and high expenses incurred by the bride’s side for the wedding. It is also imperative to note that one very contributing factor of child marriage is lack of implementation of laws and policies.
Courts in India have repeatedly recognized that child marriage is a human rights concern that creates a broad continuum of harm and perpetuates discriminatory, submissive and stereotyped roles of women. Child marriage raises pertinent issues regarding women’s sexual and bodily autonomy since entering marriage at a vulnerable age exposes them to coerced sex and they almost lose control over family planning. Due to increased chances of marital rape, there is heightened risk of early pregnancy, maternal mortality and morbidity, including obstetric fistula; and sexually transmitted infections, including HIV and AIDS. Besides dangers posed to sexual and reproductive autonomy, the regressive practice of child marriage can also entail extreme psychological damage since the child bride gives up her right to enjoy her childhood. Child marriage poses a barrier to the girls’ access to education, including comprehensive sexuality education, thereby trapping generations of women and girls in a vicious cycle of poverty.
Furthermore, child marriage is a violation of the Constitution of India, which establishes the government of India’s obligation to prevent and ensure remedies for infringements of women’s and girl’s rights, as well of the legal guarantees in the Prohibition of Child Marriage Act (PCMA) and Indian Penal Code. The supreme court has established that child marriage is a discriminatory practice and is violative of the fundamental rights of the girl since the constitution under Article 21 guarantees right to life and personal liberty. It is also important to note that the constitution also establishes directive principles of state policy to protect children from exploitation and abandonment while ensuring they develop in a healthy manner.
Delving into the loopholes, the PCMA provides a different definition of “child” based on sex and establishes a lower age for girls than boys. This is in contravention to the Juvenile Justice Act and the Indian Majority Act, which define “child” as any person below the age of 18, regardless of sex. This perpetuates the patriarchal notion that the intellectual development of women is different to that of women or that the intellectual development of women is immaterial in their marriage. Also, under the PCMA child marriages are not recognized as categorically constituting forced marriage. Marriages entered into by force or coercion are treated as void ab initio, distinct from other child marriages which are treated as voidable under section 3 if a minor contracting spouse to the marriage is able to successfully pursue a decree of nullity within two years of attaining majority. Neither the PCMA nor any other general laws on marriage demonstrate or affirm that consent is an essential element of any valid marriage. Ultimately, this means that a child marriage solemnized at any age could potentially be considered valid under the PCMA, unless states have passed their own amendment in this front.
Contributed By Ahaana Kashyap