A Delhi High Court order justifying the marriage of girls under 18 years could be used to defend child marriage, argues the AIDWA. It demands that the Centre appeal against it in the Supreme Court.T.K. RAJALAKSHMI in Delhi
ON October 9, at Jahangirpuri, a lower middle class colony in North Delhi, a 13-year-old girl was being hurriedly married off to a 26-year-old man from Uttar Pradesh. The girl's mother, a cleaner at a private hospital who had separated from her husband, had apparently agreed to the marriage. Two Delhi-based activists of the All India Democratic Women's Association (AIDWA) along with two office-bearers of the organisation attempted to stop the marriage were threatened and mobbed by the local people.
When they turned to the Station House Officer for help, he brandished a news report of a recent Delhi High Court order that upheld the right to marriage of girls under 18. When the activists requested the intervention of the Deputy Commissioner of Police, he referred the matter back to the unwilling SHO.
The presence of the activists and the police, the couple exchanged garlands quickly and were whisked away in a van. "They forcibly bundled the girl and the boy into the van," said Ashalata, State secretary of AIDWA. The police told her and the other AIDWA members that they were present there to ensure that nothing untoward took place.
What shocked the AIDWA members was the hostility of the local people, but the use of the High Court order by the police to justify their inaction. The State unit of the Communist Party of India (Marxist) condemned the police for their "criminal abetment" of child marriage and observed that the incident had brought into sharp focus the "disastrous potential" of the High Court judgment. It demanded that the Central government intervene immediately to prevent the dilution of the statutory minimum age of marriage.
On October 5, while disposing of two habeas corpus petitions under Article 226 of the Constitution, the Bench of Justices Manmohan Sarin and Madhu Goel held that cases involving marriage of minors demonstrated the truth of the maxim "You cannot love and be wise".
The Judges observed that the questions that arose from the petitions were: whether on account of the status of the spouse the marriage entered into was illegal and void ab initio; whether young girls getting married, having reached the age of discretion but not attained majority, can be sent in protective custody to a remand home against their will; whether in a habeas corpus petition the court should entertain the plea for quashing criminal proceedings for abduction, rape and kidnapping in exercise of jurisdiction under Articles 226 and 227 of the Constitution; and whether the First Information Report (FIR) and criminal proceedings for kidnapping are liable to be quashed.
(Section 5 (iii) of the Hindu Marriage Act, 1955, states that a marriage may be solemnised between any two Hindus if at the time of marriage the bridegroom has completed the age of 21 years and the bride the age of 18. The punishment for the contravention of this Section is laid down in Section 18 (a) of the Act.)
A marriage, held the Bench, was neither void nor illegal on account of the girl being less than 18 years of age and over 15 years of age. The question of contravention under Section 18 (punishment for contravention of certain conditions for a Hindu marriage) was not before the Bench. It also held that the minor could not be detained in a remand home against her wishes. Going almost entirely by the statements of the minors in question, the Bench held that there was no "taking or enticing away" and that the "essential ingredients of the offence of kidnapping are missing in these cases".
The girls having reached the age of discretion, had, of their own volition, accompanied the men of their choice, the Bench said. It observed that there was evidence that the "initiative came from them and they had got married of their own accord and are desirous of living with their respective husbands". The Bench therefore quashed the charges under Section 363 of the Indian Penal Code (IPC) against the husbands in both the cases, directed the release of one of them who was lodged in judicial custody, and stated that the wife was free to reside with her husband.
In the first case, the petitioner, Ravi Kumar, 28, sought the release of Shikha Sharma, 16, from the Nari Niketan (remand home for women). Ravi Kumar and Shikha Sharma had got married on December 8 last year. Shikha's date of birth is given as April 10, 1986, in the certificate issued by the Arya Samaj Mandir where the marriage was solemnised. Her actual date of birth is April 10, 1988.
Shikha's elder sister filed a police complaint and an FIR was registered under Section 363 (kidnapping) of the IPC. Ravi Kumar was arrested and Shikha was sent to a remand home because she was a minor and because she was unwilling to join her parents. The Metropolitan Magistrate, considering that Ravi Kumar's trial was to go on and the possibility of Shikha being pressured in the event of the trial, directed her to the remand home. Ravi Kumar got bail after Shikha gave a statement that the two loved each other and that she herself had called Ravi Kumar and had got married of her own free will.
In the second petition, Phoola Devi, a widow, alleged that her tenants had kidnapped her minor daughter, Sonia. A case of kidnapping was registered. When Sonia was traced, she stated to the Magistrate under Section 164 of the Criminal Procedure Code (recording of confessions and statements) that her earlier statement alleging enticement of and having sexual relations with her by one of the men, Santosh Rai, had been given under duress. Sonia said she had married Santosh Rai on July 24 and they had got the marriage registered on August 4.
Sonia was sent to the remand home after she refused to go with her mother. When she was produced in court, she said she would continue to live in the remand home until Santosh Rai's release from judicial custody. The Bench observed: "The position which emerges is that here is a young girl in the family way who is determined not to be with her parents and wants to join her husband who continues to languish in jail in a case registered on the complaint of her mother and uncle... ."
ON October 8, a high-level AIDWA delegation, including Subhashini Ali, Brinda Karat, Sudha Sundararaman, U. Vasuki, Kiran Moghe and Supreme Court advocate Kirti Singh, met Union Law Minister H.R. Bharadwaj and demanded his intervention to prevent any dilution of the Child Marriage Restraint Act (CMRA). The High Court order, they said, laid down a general principle that the marriage of a minor girl was justified on the grounds that it was of her own volition. The Law Minister assured the delegation that a special leave petition would be filed in the Supreme Court in this matter.
In a memorandum to the Minister, the delegation said child marriage affected women's educational and social status and was one of the main reasons for the high rates of maternal and child mortality. The memorandum stated that by advancing the position that a girl above 15 years of age can be said to have reached the "age of discretion" and any wilful marriage by her would be considered "valid, enforceable and recognisable in courts of law", the High Court had sought to reopen an issue around which consensus had been built after a long debate.
"The present law sets the age of marriage of a woman at 18 years. Despite this, child marriage continues to be a widespread phenomenon in several parts of India. Such a judgment sends a wrong signal by condoning a violation of the law and could very well be used to legitimise child marriage. The reality is that many women are being forced into marriages at an early age against their will, often at the expense of their education and health," the memorandum said.
The delegation said its opposition to lowering the age of marriage should not be confused with the rights of teenagers. "We also strongly condemn `honour killings' and the various ways in which young women are prevented from and punished for entering into self-choice marriages," they said. The memorandum demanded a strong intervention by the government to ensure that there would be no dilution of the minimum age of marriage and sought assurance that it would appeal to the Supreme Court.
Sudha Sundararaman, AIDWA general secretary, told Frontline: "In this specific case, what the judges have ruled is in the context of individual freedom. It is bad in law and sets a bad precedent as it can be used to justify child marriage. They should have stuck to the individual case and not made general observations. We are also critical of the judgment as it goes against the Child Marriage Restraint Act."
The National Commission for Women (NCW) also registered a strong protest against the High Court order and plans to appeal against it and approach the government on it. The NCW said: "A girl of 15 is not capable of making a decision relating to marriage. The judgment will encourage child marriage rather than discourage it."In the Jahangirpuri case, it was learnt that there was an element of coercion. The girl's mother, out of sheer economic pressure, had been forced by some influential local people to give away her daughter in marriage. According to local AIDWA activists, after the girl came of age the mother was worried about her safety.
Often, insecurity for the girl child, poverty and the lack of development avenues, including education, are the driving forces for child marriage. And because of the social factors underlying the institution of marriage, girls tend to accept their situation and feel that given the circumstances they are in, marriage may be the better option. It did not, therefore, come as a big surprise to the AIDWA activists when the girl excitedly told them that she was "getting married" and that she was not opposed to it. But can this enthusiasm of a 13-year-old be taken as informed consent to marriage?
According to Census 2001, there are nearly three lakh girls under the age of 15 who have given birth to at least one child.