18 Feb 2008

Child Marriage in India: Policy changes proposed by the Law Commission of India

What can be described a significant change in the legal policy, the Law Commission of India has proposed a number of changes regarding child marriages and otherwise. Responding to the queries raised by the Supreme Court in a writ petition before it wherein the Court sought the opinion of the Commission on certain issues relating to child marriages and the legal framework associated therewith in the country, and also dwelling upon the issues in the light of the recently enacted 'Prohibition of Child Marriages Act, 2006', the Law Commission has come out with the 205th Report entitled 'Proposal to Amend the Prohibition of Child Marriage Act, 2006 and other allied Laws'.

Before beginning with the analysis of the Report, it would be wise to make a survey of the existing legal framework governing marriage of citizens below the prescribed age of marriage (i.e. 21 and 18 for boys and girls respectively). Prior of 2006, the legal position was that it was the policy of the state to discourage child marriages (under the 'Child Marriage Restraint Act, 1929'). Thereunder those promoting or engaged in the act of marrying under-age boys and girls were liable for punishment. However the new spouses were not liable for any action and the marriage, despite either or both parties being under the prescribed age, was legally valid a
nd enforceable and there lied a proper civil action of the enforcement of conjugal rights from such marriage; a right which is a concomitant of a legally recognized marriage.

The raison d'etre behind such a policy (under the 1929 Act) was that it was in the best interests of the girls involved in such a marriage; for under the existing cultural and social ethos of the land a married girl was no more considered to be a part of the family of her birth and instead a part of the family of the groom. More importantly, since non-recognition of such marriages would imply that the off-springs of such marriage would be ill-legitimate (a stigma which the law seeks to avoid), it was considered important (at the time of framing the Act i.e. 1929) to consider such under-age marriages valid.
However things were changed with the passing of the 'Prohibition of the Child Marriage Act, 2006' and its coming into effect from 1st November, 2007.[click here for the full text of the 2006 Act] Under the new 2006 Act, the parties to an under-age marriage were given rights to get their marriage declared void (thus essentially making child-marriages void-able at the option of the under-age party to such marriage). In any case the right to maintenance of the girl were protected i.e. even of the such marriage was declared void, the girl had the right to maintenance from the husband till the time she got remarried. Further, under the new Act the punishment for encouraging or facilitating or solemnizing such marriages was increased. Nonetheless the policy of not holding the women liable for solemnization of such marriages was continued even under the new Act. But (as it happens in most cases), it seemed to the Law Commission that the 2006 Act was not a panacea to the ills of child marriage and therefore it took up the issue to examine the various facets relating thereto in greater details; and thus the 205th Report.

In this Report [click here for the full text of the report] the Law Commission has examined in details the scientific and medical issues arising out of so-soon a wedlock (detailed in Chapter 3 of the Report) and has come to a conclusion that an early marriage is no good for any and all the parties involved and that too on all counts i.e. physiological, pshychological, and emotional and affects not only the parties to such marriage but also the household in which they stay. Further (in Chapter 4), the aspect of human rights of the parties, in the context of being married at such an early age, have also been examined to conclude that is an abhorable situation. To quote from the Report,

"Child marriage is thus child abuse and a violation of the human rights of the child. It has an extremely deleterious effect on the health and well being of the child. It is a denial of childhood and adolescence; it is a curtailment of personal freedom and opportunity to develop to a full sense of selfhood as well as a denial of psycho-social and emotional well being and it is a denial of reproductive health and educational opportunities. The girl child is the most affected and suffers irreparable damage to her physical, mental, psychological and emotional development."

Upon an extensive review and deliberations upon the various considerations involved in child-marriages and its implications upon other criminal laws, the Law Commission has proposed as under;

(a) Child marriage below the age of 16 be made void (i.e. legally unenforceable under any circumstances)

(b) Marriages where either or both spouses are between 16 and 18 be made voidable (i.e. giving an option of either party to get them annulled);

(c) The provision of maintenance of the girl till her remarriage in either (a) or (b) to be continued and all children arising out of either of the marriages under (a) or (b) to be deemed legitimate;

(d) The concept of marital rape (as being a non-punishable offence) be deleted from the Indian Penal Code;

(e) The legal age for a girl to give sexual consent to be increased to 16 years;

(f) Registration of all marriages to be made mandatory; and most importantly

(g) The age of marriages for both boys and girls be made 18 years; (here the Commission says there is no reason for keeping a difference in the two ages)

I am in favour of most proposals (though I simply cannot conceive the consequences of the reduction in age for marriage of boys to 18 years). However one significant fact which arises upon an evaluation of this Report is its lack of consideration of the Muslim personal laws wherein the age of marriage of girl is the age when she attains puberty. Since the proposal is keen to envisage all girls to be married only after they attain 16 and there is no qualification as to Muslim girls, it would imply that these provisions are applicable across the board to all girls in India, irrespective of the religion or cultural ethos they come from. This makes this proposal the first in line with the cherished idea of a 'Uniform Civil Code' which forms a controversial element in the 'Directive Principles of State Policy' under the Constitution of India.

Though most critiques would jump at the Report for various recommendations it makes (and on the lighter side, I have already seen various funny caricatures on the age of boys for marriage reduced to 18 years), its a progressive piece of advice which the Commission has meted out to the Government and the only item on the agenda which remains to be performed is when (and if at all) the Government decides to translate these proposals into laws. 

Post-Script Rejoinder

After writing post we came across a later decision of the Delhi High Court in which these concepts relating to validity of child marriage have been explained. Since we have covered that in a separate post, we would recommend our readers to have a look at this post titled "Minor's Marriage legally valid".


anniyan said...

can u pls tell me, is this law in act or not, i am 19 and my lover is 18 , can we marry now.

manoj said...

i think that the age of boy for marrige is 18 &girls is 16..

manoj said...

my age is 19 &my lover is 18 can we marry ..

Maniklal said...

i was married when i was 8 years old and when i grew up to 21 years i was forced to accept that marriage . as this was a force full marriage i was not happy and now that circumstances are so worst that i am cant survive and i want to get divorced . till now i have not register this marriage with any legal documents so pleas help me what should i do to get divorced

dev said...

hey plz reply soon when this law is implementing,,, we have to marry against our parents and we are of 18,,,plzz reply soon