Introduction
According
to UNICEF, more than 40 percent of the world’s child marriages take place in
India, although the legal age is 18 for a wedding. A multiple set of factors
leads to the prevalence of the phenomenon such as social roles and standards,
cultural traditions surrounding the marriage, safety issues and family honor,
poverty, inadequate schooling, and employment prospects, and ineffective
enforcement of the legislation. Patriarchal ideas, in particular, play a major
role in child marriage.
Most
of the child marriages involve underage women, many of whom are in poor
socio-economic conditions. These heinous practices have caused deaths due to
premature births in married girls aged 15-19. Girls are at risk of becoming sick and their children suffer from
low immunity when they are born, many of whom died in infancy.
In such a case, many girls are subjected to sexual
assault and suffer from post-traumatic stress.
However,
child marriage is of course banned in India and the Indian Government has taken
appropriate actions to tighten the laws against child marriage, but sadly this
tradition continues to exist in lieu of legal interdictions.
First
of all, let's understand What is Child Marriage?
Child
marriage is a marriage or similar union between a child and an adult or another
child under a certain age, generally age eighteen. In India, the legal age for
marriage is 18 years for a female and 21 years for a male.
Laws
against Child Marriage in India
Prohibition
of Child Marriage Act, 2006 (PCMA)
According
to PCMA, the marriageable age for a female is 18 years and for a male is 21
years. A nullity order may be issued by a girl who has entered into a child
marriage within 2 years of attaining the age of 18 years.
Hindu
Marriage Act, 1956 (HMA)
Under
HMA, only the parties to the child marriage are entitled to penalty, even
though they have not consented to the union. There are no laws to prosecute
parents or individuals who solemnized a marriage. A girl will have a marriage
canceled only if she is married before she reaches the age of 15 and challenges
her marriage before she attains the age of 18. There is no implied provision
prohibiting child marriage per se.
Muslim
Personal Law
In
India, Muslim Law is not codified. Therefore, its provisions are focused on
scholars' interpretations of the Quran. There is no bar against child marriage
under Muslim law. A guardian has a right to get a child marriage. however, the
partners have the “option of puberty’ known as khayar-ul-bulugh where they can
repudiate the marriage after reaching puberty. However, they would do so before
turning 18 and only if the marriage has not been consummated. Under Muslim law,
the marriage age is the age of puberty, which is 15 years. Although, marriage
before the age of 7 even if contracted by a lawful guardian, is void ab initio.
Indian
Christian Marriage Act (ICMA)
ICMA
states that if a marriage is to be conducted between minors, a preliminary
warning must be given 14 days prior to the marriage. After the expiration of
that time, without the permission of their guardians, the parties can proceed
with the marriage.
Other
Personal Laws
A
child's marriage is invalid under the Parsi Marriage and Divorce Act (PMDA). However,
the act is silent on the age at which the conditions for an illegitimate
marriage are listed. Jewish law remains un-codified in India. Under it, the
marriageable age is the puberty age that is set at 12 years.
Judicial
Intervention
In the case Lajja
vs. State, the Delhi High Court ruled that the PCMA (Prohibition of
Child Marriage Act, 2006) prevails over personal laws.
The same was
reiterated in Seema Begum vs. State in 2013 by the Karnataka High
Court.
However, In 2014
in the case of Yusuf Ibrahim Mohammad Lokhat vs. the State of Gujarat,
"According to the personal law of Muslims, the girl is qualified to get
married without the permission of her parents as soon as she reaches puberty or
completes the 15 years, whichever is earlier.
This explicitly
provides the impression that personal laws should be taken as a primary source
for determining the cases of underage marriage, according to the learned
judges. The Madras High Court ruled in 2015 that PCMA (Child Marriage
Prohibition Act, 2006) extends to any culture and is not against Muslim law.
There are no rulings of the Supreme Court to resolve this point.
Conclusion
Based on the discussion alluded to
above, it can be inferred that child marriage is a threat that cannot be
prohibited without the aid of society, and making child marriages invalid can
only jeopardize the rights of women who are victims of child marriage. However,
we find that there has been a decrease in child marriage over the last few
years due to the inclusion of education and awareness among children. Moreover, we must make our laws more stringent so that
child marriage can be eliminated.
Mahesh
Kumar, a 3rd-year law student from Sharda University.
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