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ISSUE OF CHILD MARRIAGE IN INDIA

Submitted by

Antara Basu
Division: B Class: BA.LLB

Of Symbiosis Law School, NOIDA Symbiosis International University PUNE

In

NOVEMBER, 2011 Under the guidance of Prof. Vikram Singh & Prof. Ashok Wajde Course in Charge Family law 1 Of Symbiosis Law School, Noida

CERTIFICATE
The project entitled ISSUE OF CHILD MARRIAGE IN INDIA submitted to Symbiosis Law School, Noida for Constitutional Law 1, as a part of internal assessment is based on my original work carried out under the guidance of Prof. Vikram Singh and Prof. Ashok Wajde from 15th September to 25th November. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the Candidate:

Date: 25-11-2011

Acknowledgment
I owe a great many thanks to a great many people who helped and supported me during the completion of the project. My deepest thanks to Lecturer Mr. Vikram Singh and Mr. Ashok Wajde, the Guide of the project for guiding and correcting various documents of mine with attention and care. He has taken pain to go through the project and make necessary correction as and when needed. I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well wishers.

ISSUE OF CHILD MARRIAGE IN INDIA

Child marriage in India has became a major issue in the country like India. Child marriage, defined as marriage before age 18, devastates the lives of girls, their families and their communities. Widespread in many developing countries, child brides number more than 60 million worldwide. In some countries, half of the girls are married before they turn 18. According to Chid Marriage Prohibition Act, 2006 a) "Child" means a person who, if a male, has not completed twenty one year of age, and if a female, has not completed eighteen years of age ; (b) "child marriage" means a marriage to which either of the contracting parties is a child ; (c) "contracting party" to a marriage means either of the parties whose marriage is (or is about to be) thereby solemnised and (d) "minor" means a person of either sex who is under eighteen years of age. This harmful traditional practice of child marriage is most common in poor, rural communities, and its consequences only perpetuate the cycle of poverty. More often than not, child brides are pulled out of school, depriving them of an education and meaningful work. They suffer health risks associated with early sexual activity and childbearing, leading to high rates of maternal and child mortality as well as sexually transmitted infections, including HIV. And they are more likely to be victims of domestic violence, sexual abuse and social isolation. Though child marriage is entrenched in tradition and culture, change is possible. Very often, girls and their parents want to delay marriage but lack options. Governments and communities are actively working to discourage the practice by raising awareness of the adverse consequences for girls, running programs that provide girls with viable alternatives to marriage, and demanding more effective enforcement of existing laws that condemn child marriage. With the right mix of effective programs, policies and political will, millions of girls will have the opportunity to fulfill their potential.

1. Cases of child marriage has been seen critically high in states like Rajasthan, Uttar Pradesh and Haryana. 2. Demographically and Health surveys indicate that about 38% women aged 20-24 years of age in 50 least developed countries were married below 18 years of age. 3. Married girls are many times more likely to have had unprotected sexual relations than sexually active unmarried 4. Laws governing Child marriage area) Convention on the Rights of Child b) Convention on the elimination of all Forms of Discrimination against women 5. Under the Prohibition of Child Marriages Act, whoever performs, conducts, directs or abets any child marriage is punishable with rigorous imprisonment up to two years and fine which may extend to one lakh rupees. The Act says that child marriage can be declared illegal only at the option of contracting party being a child. 6. The Ministry of Women and Children Affairs is making progress in increasing women's education and employment opportunities. This, combined with specific education about child marriage and cooperation with religious leaders, is hoped to decrease child marriage.1

www.lawisgreek.com/child-marriage-laws-in-india

Main Features of the Prohibition of Child Marriage Act, 2006


The new Prohibition of Child Marriage Act, 2006 (hereafter PCMA) brings about far reaching changes in the law as under: Section 3 of this Act states that child marriages shall be voidable at the option of the contracting party who was a child at the time of the marriage. It allows for a petition to be filed to declare the marriage void within 2 years of the child attaining majority. However, since a girl is supposed to attain majority at the age of 18 and a boy at the age of 21, the girl can file a petition till she becomes 20 years of age and a boy till he becomes 23 years of age. The Act also allows for maintenance and residence for the girl till her remarriage from the male contracting party or his parents. It further allows for appropriate orders for custody for any child born from the marriage. All the punishments for contracting a child marriage have been enhanced. The punishment for a male over 18 years of age has been enhanced to rigorous imprisonment of up to 2 years or with a fine up to Rs. 1 lakh or both. A similar punishment is prescribed for anyone who performs, conducts, directs or abets any child marriage. The same punishment is also prescribed for anyone who solemnizes a child marriage including by promoting such a marriage, permitting it to be solemnized or negligently failing to prevent the marriage. No woman can however be punished with imprisonment. The Act also makes all offences cognizable and non-bailable. The Act further allows for injunctions to prohibit child marriages including ex parte interim injunctions. It states that any child marriage solemnized in contravention of an injunction order will be void.2 The Rukhmabai case in Maharashtra and Phulmonee case in Bengal as they are popularly known raised significant questions about the age and issue of consent in Hindu marriage. Both the cases marked the tension between the Hindu orthodoxy on one hand that upheld child marriage and perceived any opposition to it as an affront to tradition and social reformers opposing such religious bigotry on the other hand. For the latter such blind adherence to social norms
2

legalperspectives.blogspot.com/.../child-marriage-in-india-policy

meant the continuation of harmful practices in the name of tradition and therefore necessitated immediate challenge of such socially sanctioned practices including child marriage. While the debate on child marriage is often understood as a tradition-modernity dichotomy, it is also important to bring to the fore the struggle by women themselves in these cases to challenge patriarchal values and practices, albeit in their limited ways. The case of Rukhmabai dates back to 1884 when twenty two year old Rukhmabai refused to consummate her marriage solemnized at the age of eleven. Rukhmabai was eleven years when she was married to Dadaji Bhikaji, a poor cousin of her stepfather Sakharam Arjun. On reaching puberty few months after her marriage, the expected ritual was that of garbhadhan or the ritual consummation of the marriage. However, such early consummation was not encouraged by Sakharam and so Rukhmabai remained at her natal home and continued to study. Rukhmabais husband was a man of questionable character and within a few years time, she realized that she did not want to remain in this marriage. After eleven years of the unconsummated marriage, Dadaji filed a case for restitution of conjugal rights, a British law incorporated into the colonial legal system by which either of the spouses could demand for the union with his or her spouse when either party was as living apart without adequate reason. Rukhmabai steadfastly refused and defied the Privy Councils order to return to her husband, stating that she preferred courting imprisonment for violating orders than remaining in a marriage that she did not want. Her argument that she cannot be compelled to be tied in a marriage that was conducted at an age when she was incapable of giving consent was an argument hitherto unheard of and unimaginable. Rukhmabais struggle against indigenous patriarchal customs was not confined to her personal resistance only. She wrote in the Times of India under the pseudonym of A Hindu Lady attacking institutions of infant marriage and forced widowhood. While critics of infant marriage still considered early marriage as essential to hindu shastric norms suggesting a raised age of 12 years, for Rukhmabai the minimum age of marriage should be 15 years. In 1891, the age of marriage rose to 12 years from 10 years. While Rukhmabai had an out of court settlement with Dadaji, the case became a landmark in colonial India for raising issues of consent and choice of women in marriage. The Phulmonee case In 1890, eleven year old Phulmonee died of marital rape by her twenty nine year old husband Hari Maiti. Her mother Radhamonees account of seeing her daughter lying in blood and succumbing to the injuries of forced intercourse paved the ground for the age of consent debate. Hindu norms mandated sexual intercourse on men when their child wives attain puberty and the colonial law only penalized marital rape when then the child wife was under the age of ten. Since Phulomonee was older, Hari Maiti was not accused of marital rape and murder and charged for rash acts.However, this case pushed the colonial

government to raise the age of consent for marriage of girls to twelve. More importantly this case raised questions whether families or communities had the right to inflict pain or suffering on women using the plea of tradition. Both these cases paved the ground for not only raising the age of marriage of girls but more importantly confront issues of choice and consent of women in marriage. These cases in the 19th century were precursors to later discussions and legal interventions on child marriages in 20th century in India.3 Case: Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and
others Vs.K. Devi and others

Changes brought by Child Marriage Prohibition Act, 2006


1. Old Child Marriage Act, 1929 did not affect the validity of marriage. 2. New Act of 2006 makes it voidable and void in some cases. 3. This being secular piece of legislation applies all the religions is a very good step towards enactment of U.C.C. in India and

4. Section 3 of the new Act terms it voidable and is at the option of the party/minor child to decide. 5. Section 12 of the new Act terms it Void when it is done by enticing or taking away of child from the lawful custody of Parents or Guardian. The Act lays emphasis on the prohibition of child marriages by providing for the appointment of Child Marriage Prohibition Officers by the State Governments and gives powers to these Officers to prevent and prosecute solemnization of child marriages and to create awareness on the issue. However without the required financial allocations these Officers will probably not get appointed. The Act gives the District Magistrate powers to stop and prevent solemnization of mass child marriages by employing appropriate measures and minimum police force apart from giving him all the powers of the Child Marriage Prohibition Officer.

sanhati.com/excerpted/2207/

The marriage of a minor girl often takes place because of the poverty and indebtedness of her family. Dowry becomes an additional reason, which weighs even more heavily on poorer families. The general demand for younger brides also creates an incentive for these families to marry the girl child as early as possible to avoid high dowry payments for older girls. Young brides face the risk of sexual and reproductive ill health because of their exposure to early sexual activity and pregnancy. The NFHS-2 had recorded that only 4% of married girls practiced gauna. It had further been recorded that the period between marriage and gauna had been reduced to about one year in most cases. The NFHS-3 figures show that the practice has been further restricted to 0.7% married girls. Complications and mortality are common during childbirth for young pregnant girls. Girls who come from poor backgrounds and who are often married at an early age have little or no access to health care services. Risks associated with young pregnancy and childbearing include an increased risk of premature labour, complications during delivery, low birth-weight, and a higher chance that the newborn will not survive. Young mothers under age 15 are five times more likely to die than women in their twenties due to complications including haemorrhage, sepsis, preeclampsia/ eclampsia and obstructed labour.16 Maternal mortality amongst adolescent girls is estimated to be two to five times higher than adult women. Child marriage most often occurs in poor, rural communities. In many regions, parents arrange their daughters marriage unbeknownst to the girl. That can mean that one day, she may be at home playing with her siblings, and the next, she is married off and sent to live in another village with her husband and his family strangers, essentially. She is pulled out of school. She is separated from her peers. And once married, she is more likely to be a victim of domestic violence and suffer health complications associated with early sexual activity and childbearing. Under British rule European scholars observed in the 19th century that Hindu women are "naturally chaste" and "more virtuous" than other women. During the British Raj, many reformers such as Ram Mohan Roy,Ishwar Chandra Vidyasagar, Jyotirao Phule etc. fought for the upliftment of women. Peary Charan Sarkar, a former student of Hindu College, Calcutta and a member of "Young Bengal" set up the first free school for girls in India in 1847 in Barasat, a suburb of Calcutta (later the school was named Kalikrishna Girls' High School). While this list might suggest that there was no positive British contribution during the Raj era, that is not entirely so, since missionaries' wives like Martha

Mault ne Mead and her daughter Eliza Caldwell ne Mault are rightly remembered for pioneering the education and training of girls in south India - a practise that initially met with local resistance, as it flew in the face of tradition. Raja Rammohan Roy's efforts led to the abolition of the Sati practice under Governor-General William Cavendish-Bentinck in 1829. Ishwar Chandra Vidyasagar's crusade for the improvement in condition of widows led to the Widow Remarriage Act of 1856. Many women reformers such as Pandita Ramabai also helped the cause of women upliftment. Kittur Chennamma, the queen of the princely state Kittur in Karnataka[, led an armed rebellion against the British in response to the Doctrine of lapse. Abbakka Rani the queen of coastal Karnataka led the defence against invading European armies notably the Portuguese in 16th century. Rani Lakshmi Bai, the Queen of Jhansi, led the Indian Rebellion of 1857 against the British. She is now widely considered as a nationalist hero. Begum Hazrat Mahal, the co-ruler of Awadh, was another ruler who led the revolt of 1857. She refused the deals with the British and later retreated to Nepal. The Begums of Bhopal were also few of the notable female rulers during this period. They did not observe purdah and were trained in martial arts. Chandramukhi Basu, Kadambini Ganguly and Anandi Gopal Joshi were few of the earliest Indian women to obtain educational degrees. In 1917, the first women's delegation met the Secretary of State to demand women's political rights, supported by the Indian National Congress. The All India Women's Education Conference was held in Pune in 1927. In 1929, the Child Marriage Restraint Act was passed, stipulating fourteen as the minimum age of marriage for a girl through the efforts of Mahomed Ali Jinnah. Though Mahatma Gandhi himself married at the age of thirteen, he later urged people to boycott child marriages and called upon the young men to marry the child widows. Women played an important part in India's independence struggle. Some of the famous freedom fighters include Bhikaji Cama, Dr. Annie Besant, Pritilata Waddedar, Vijayalakshmi Pandit, Rajkumari Amrit Kaur, Aruna Asaf Ali, Sucheta Kriplani and Kasturba Gandhi. Other notable names include Muthulakshmi Reddy, Durgabai Deshmukh etc. The Rani of Jhansi Regiment of Subhash Chandra Bose's Indian National Army consisted entirely of women including Captain Lakshmi Sahgal. Sarojini Naidu, a poet and a freedom fighter, was the first Indian woman to become the President of the Indian National Congress and the first woman to become the governor of a state in India.

16. Child Marriage Prohibition Officers.- (1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification. (2) The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any nongovernmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly. (3) It shall be the duty of the Child Marriage Prohibition Officer(a) to prevent solemnisation of child marriages by taking such action as he may deem fit (b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act; (c) to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages; (d) to create awareness of the evil which results from child marriages; (e) to sensitize the community on the issue of child marriages; (f) to furnish such periodical returns and statistics as the State Government may direct; and (g) to discharge such other functions and duties as may be assigned to him by the State Government. (4) The State Government may, by notification in the Official Gazette, subject to such conditions and limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject to such conditions and limitations, as may be specified in the notification.

(5) The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3. Amendment of Act No. 25 of 1955.- In the Hindu Marriage Act, 1955, in section 18, for clause (a), the follwing clause shall be substituted, namely:"(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both". Punishment for Violation of Child Marriage Restraint Act, 1929 Under the Child Marriage Restraint Act, the scope of penalty for different parties to the child marriage is:

Punishment to Parent or guardian: In most cases, a child marriage is instigated by the parents or guardians. The punishment for these parties may extend up to three months imprisonment. They may be also subjected to a fine. The penalty is valid even if the parent/guardian has not consented to the marriage, but fails to take adequate measures to prevent it. Punishment to the Party who solemnizes child marriage: This implies anyone who performs or conducts a child marriage ceremony, such as a priest. The penalty in this case is three months imprisonment and a fine. The party may, however, escape liability if he proves he was unaware that the bride and bridegroom were minors. Punishment to the Bridegroom: If the bridegroom above 21 years is marrying a minor, he may be imprisoned for up to three months, and may have to pay a fine as well. However, if the bride is below 21, but above 18, the maximum duration of imprisonment is 15 days. Case Venkata Subbarayudu Chetty v. Tanguturu Venkataiah Shresti and
another4

A.I.R. 1968 AP 107

Child Marriage Laws in India: A Final Word From the scope of penalties in the Child Marriage Restraint Act it is evident that the existing laws are not strict enough. Considering that the last revision to the act took place over three decades ago, it is high time that the Government of India pays serious attention to this issue. The government created the National Plan of Action for Children in 2005, claiming to eliminate child marriage entirely by 2010. However, weve entered 2010 and the issue continues to subsist. Alarmingly, child marriage cases are not only found in the rural regions of the nation, and also in some developed cities of states like Rajasthan, Gujarat, Bihar and Andhra Pradesh.

Conclusion
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

BIBLIOGRAPHY Bare Acts: 1. Prohibition of Child Marriage Act,2006 2. Child Marriage Restrain Act,1929

Websites:
1. lawcommissionofindia.nic.in/reports/report205.pdf 2 .cis.uchicago.edu/.../081118-Shulman_India-BackgroundReading.pdf 3. www.lawisgreek.com/child-marriage-laws-in-india 4. social.un.org/index/LinkClick.aspx?fileticket...tabid=215 5. www.childlineindia.org.in ... Child Related Legislations