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  • Shreya Sinha

PROHIBITION OF CHILD MARRIAGE ACT- BREACHED WITH IMPUNITY

Updated: Aug 28, 2020

By- Pavithra Rajesh, 5th Year Student at National University of Advanced Legal Studies (NUALS), Kochi

 

Child Marriage can be described as a legal or customary union between two people one of whom is below the prescribed age of 18[1]. Despite existing domestic legislation for prohibition India still has a large number of child marriages. As per UNICEF India has one of the highest numbers of child-brides in the world. According to this report, 27% of the girls in India are married before they attain 18 years of age and 7% are married before attaining 15 years of age. To understand the causes it is important to analyze the existing framework in India as the enforcement of legislation plays a censorious role in the regulation of child marriage.

The efforts to prevent child marriage dates back to the Child Marriage Restraint Act of 1929 (‘CMRA’) wherein the minimum age of marriage for girls was fixed at 14 and boys at 18. This Act was subsequently amended in 1949 increasing the minimum age of marriage of girls to 15 and it was last amended in 1978 increasing the minimum age of girls and boys to 18 and 21 respectively. However, the problem with the Act is that it imposed fines[2] to discourage children's marriage but did not straightaway declare it as void showcasing the mild commitment towards its abolition. The shortcomings of this Act led to the Prohibition of Child Marriage Act of 2006 (‘PCMA’).

In comparison to CMRA, PCMA took a much more serious approach towards child marriage both in prevention as well as punishment. Some of the positive changes are that PCMA increased the punishment to two years of imprisonment and a fine up to INR 1,00,000[3] and appointment of Child Marriage Prohibition Officer. One of the positive steps taken by the judiciary’s approach towards child marriage was in the case of Independent Thought v. Union of India & Anr[4] wherein the Supreme Court observed that PCMA would override all the other personal laws. The Court thereby observed PCMA as a secular law than construing it from the point of view of personal law i.e. even if child marriage is acceptable in person they are still required to comply with PCMA. The Apex Court in this judgement notably also observed that child marriage should be void ab initio throughout the country. Another positive step made by the Government of India was the approval of Karnataka government amendments which declared all child marriages void ab initio under the PCMA.

It is true the PCMA was a positive step towards eradicating child marriage however the PCMA is ineffective which was also reiterated by the Supreme Court[5]. With the introduction of this Act though it addressed the legal issue, it fails to address the existing societal and cultural norms in India. Section 3(2) and (3)[6] of PCMA is very problematic considering how most the marriages are forced by parents and in-laws and also permitting a girl to file a petition for void marriage only after two years of attaining majority will only add on to the additional barriers. Although Section 16 provides for the appointment of Child Marriage Prohibition officers[7] the Act is silent on punishment for neglect of duty[8], thereby not ensuring accountability. The lack of proactive enforcement agencies is also another reason.

As per Section 19 of PCMA, it requires the state to makes rules for its implementation, but till now only 24 states have drafted it and 20 states have appointed Child Probation officers. This showcases the lack of implementation on the part of the state governments. There has been a lack of effort on the part of the judiciary to declare child marriages even when they have re