Ambivalence in the law

The Child Marriage Prevention Bill, though an improvement over the existing Act, does not go far enough to help curb the practice.

THE only existing law in India that specifically deals with the issue of child marriage is the Child Marriage Restraint Act, 1929, which the British government enacted owing to pressure from reformers and women's groups. The Act, popularly called the Sarda Act after the author of the Bill, Harbilas Sarda, was an ambivalent piece of legislation that prohibited the solemnisation of child marriages, but did not declare them illegal or invalid. It raised the age of consent from 12 to 14 for females and 14 to 18 for males. The age limit was raised from 14 to 15 for females by an amendment in 1949. The Act was subsequently amended in 1978, when the age of consent was raised to 21 for males and 18 for females.

As the name suggests, the Child Marriage Restraint Act did not focus on the status of the marriage and the rights of the parties once they were married. The Act, when read with the Hindu Marriage Act, 1955, says that a child married before the age of 15 could get her (or his) marriage annulled if she had repudiated the marriage between the ages of 15 and 18.

The penalty provisions in the existing Act are mild. Though the Act prescribes punishment for those who arrange a child marriage and actively participate in celebrating it, including a parent or a guardian who promotes the marriage, permits it to be solemnised, or fails to prevent it from being solemnised, the punishment is a maximum of three months' imprisonment and a fine for a male above the age of 21. If the male was above 18 and below 21, then the maximum punishment is imprisonment for 15 days or a fine of Rs.1,000 or both. Women cannot be imprisoned under the Act, nor can minor children who get married be punished. The district court has the power to issue an injunction to prevent a child marriage from being solemnised after giving notice to the parties involved to argue against the injunction.

Following recommendations by the National Human Rights Commission and the National Commission for Women, the Central government introduced the Prevention of Child Marriage Bill in the Rajya Sabha in December 2004. The Bill was referred to a Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice headed by E.M. Sudarsana Natchiappan of the Congress.

The Bill says that a child marriage is voidable at the option of a contracting party who was a child at the time of marriage. It enables a person who was married as a child to file a petition asking for the marriage to be nullified. But the petition must be filed within two years of attaining majority. If the petitioner is a minor, the petition can be filed through the guardian or next friend along with the Child Marriage Prevention Officer (CMPO).

Said Deepika Farias from Global Rights: Partners for Justice, a non-governmental organisation (NGO) working on this issue in Karnataka and Rajasthan: "Under the present Act, it is unrealistic to expect a minor between the age of 15 and 18 to repudiate a marriage. The courts, however, have read these provisions liberally and have annulled marriages, but there is still an anomaly in the law."

Under the Bill, a child marriage is void if the child is taken out of the custody of a lawful guardian and made to go through with the marriage, if compelled or forced to go through with the marriage, is sold into marriage or if a minor is married and then trafficked or sold. A petition asking for the marriage to be nullified can be filed before a family court or district court.

The Bill says that if there are children born out of a child marriage, the child will be considered a legitimate child, the custody of the child will be decided based on the best interests of the child, and that one of the parties to the marriage or their guardians have to pay maintenance for the child. The Bill says that the male contracting party or his guardian has to pay maintenance to the female contracting party until her re-marriage.

The Bill makes child marriage a cognisable and non-bailable offence. Under the Bill, any male above the age of 18 marrying a female child will be punished with imprisonment for two years, or a fine of Rs.1 lakh, or both. Parents and guardians and a person who performs, conducts or directs a child marriage can be punished with imprisonment for three months and a fine.

The Bill also covers organisations and associations that promote or permit child marriages as well as a person abetting such a marriage. Both these are punishable with imprisonment for two years and a fine of up to Rs.2 lakhs or both. The Bill enables a magistrate to issue an injunction prohibiting a child marriage, and a marriage performed in contravention of an injunction order is void. Contravening an injunction is punishable with imprisonment for two years and a fine of up to Rs.1 lakh, or both.

The Child Marriage Restraint Act does not have provisions for an enforcement officer. But States such as Gujarat and Karnataka have amended the Act to provide for the appointment of CMPOs. Gujarat has armed such officer with the powers of a police officer to prevent marriages from being performed and to collect evidence to enable the effective prosecution of persons contravening the Act. The Gujarat government can set up an informal advisory body to advise and assist the officer. The body can have a maximum of five social welfare workers, of whom at least two have to be women workers known in the area within the jurisdiction of the officer. In Karnataka, the Department of Women and Child Development is supposed to appoint its Deputy Directors in the districts as CMPO.

The Bill provides for the appointment of CMPOs across the country, whose role is to prevent child marriages, investigate complaints and gather evidence to prosecute any violation of the law. The CMPO is in charge of creating awareness on the issue, furnishing statistics on child marriage to the State government, and petitioning the court for orders related to maintenance, custody and injunctions. The State government can ask any person who is an officer of a gram panchayat, a municipality, or a public sector undertaking, or an employee of an NGO to assist the CMPO.

The Bill specifically provides that in order to prevent the solemnisation of child marriages on auspicious days like Akshaya Trithiya, the District Magistrate is deemed to be the CMPO and has the power to prevent the solemnisation of mass child marriages during this period.

THOUGH the Child Marriage Prevention Bill is an improvement over the existing Act, many organisations working on this issue feel that the Bill does not go far enough. According to Colin Gonsalves, senior advocate from the Human Rights Law Network, instead of plugging the loopholes in the law, what the Bill does is to make sure that the marriage is rendered void only if the children file legal proceedings for this purpose. But given the social pressure surrounding such marriages, it is unlikely that any case will be filed.

Child rights groups and NGOs have pointed out during consultations in Delhi and Bangalore that the Bill is silent on the question of compulsory registration of marriages, though States such as Karnataka and Maharashtra already have Acts that make the registration of marriages compulsory. They have also pointed out that from their experience the main problem they envisage relates to the implementation of the Bill. The consensus is that for the Bill to be effective it ought to define specifically the role of the police and government officials who may aid and abet child marriages, or elected representatives who solemnise child marriages. The consultation also highlighted the need to address specifically the issue of mass marriages and the procedures that are to be followed by those who conducted such ceremonies.

Article 16(2) of the United Nations Universal Declaration of Human Rights (UDHR), 1948, says that "marriages shall be entered into only with the free and full consent of the intending spouses". Article 19 of the Convention of the Rights of the Child (CRC), 1990, to which India is a signatory, makes it obligatory for states to protect the child from all forms of mental or physical violence, injury or abuse, neglect, maltreatment and exploitation, including sexual exploitation while in the care of parent, legal guardian or any other person who has the care of the child.

Article 16(b) of the Convention of All Forms of Discrimination Against Women (CEDAW), 1979, which India is signatory to, says that state parties have to ensure that they take measures to eliminate discrimination against women in all matters relating to marriage and family relations and, in particular shall ensure, that women have the right "freely to choose a spouse and to enter into marriage only with free and full consent".