CHILD MARRIAGE : A LOOK AT THE PERSONAL LAWS IN INDIA


Author: Sehaj Sarin, The Law School, Jammu University




ABSTRACT

Child Marriage is not only a problem of India but a global problem which finds its roots in gender inequality, the belief that men and women are not equal. Other reasons of Child Marriage include poverty, social norms, lack of education and insecurity. It has devastating consequences all over the world. This article focuses on the above mentioned aspects only. The extent and the impacts of Child Marriage, also the various laws in India, both statutory and personal laws, will also be discussed.


INTRODUCTION

Child marriage is the marriage of a young girl or boy below the age of 18 years. The vast majority of child marriages are mainly between a man, who has attained his adulthood and a young girl.


Most of the religions have prescribed a minimum age of marriage. The Christian Canon Law forbids the marriage of a girl before the age of puberty[1]. Also, in the Vedas, marriage is depicted between two people at the Brahmacharya stage (after the age of puberty). Thus, Child Marriage was not supported by any religion but some exceptions were there too. For instance, in Manusmriti, it was written that if a father fails to marry his daughter before puberty, he is wrong and if the girl is not married in three years after the onset of puberty, that girl can look for her husband all by herself.[2]


PROBLEM OF CHILD MARRIAGE

Child Marriage, is the result of gender inequality, the belief that females are weaker than males and thus, it is believed that marrying them will make them stable. It is believed that females always depend on the males for anything and everything. That is the reason that mainly girls are the victims of Child Marriage as compared to the boys. Child Marriage among boys is one-sixth that of the girls[3].


Child Marriage is really a big problem for whole of the world and it has devastating consequences on both the genders. Their childhood is taken away and in the age of playing cricket in the playground, they are given responsibilities of an adult.


The girls who get married before turning 18, have mostly experienced domestic violence and not only this but their education is also left incomplete. The child brides often get pregnant during adolescence, which is harmful and thus, the risk of complications during pregnancy increases for both the mother and the child. Child Marriage also isolates them from their family and friends, which affects girls more than the boys.


Boys also get affected as they are also not prepared for certain responsibilities like providing family, early fatherhood, lack of education. As of September 2014, 156 million[4] living men were married as underage boys. The number is staggering. However, girls affected disproportionately, 1 in 5 young women aged 20 -24 years old were married before their 18th birthday, as compared to 1 in 30 young men.[5]


REASONS FOR CHILD MARRIAGE

Child Marriage robs children of their childhood, not only this it also disrupts their education, development, drives vulnerability to abuse, violence and discrimination. Despite of the modernization in the society, Child Marriage still exists. There are a variety of reasons for Child Marriage :

a. Poverty.

b. Insecurity.

c. Lack of education.

d. Patriarchy.

e. Financial reasons.

f. Legal loopholes.

g. Menstruation.

h. Gender inequality.

i. Parental consent.

j. Conflict.[6]


CHILD MARRIAGE AND PERSONAL LAWS IN INDIA:

Recently, the High Court of Punjab and Haryana upheld the validity of marriage.[7] The couple belonged to the Muslim community and under Muslim Personal Law, marriage is allowed between Muslim individuals, who have attained puberty .i.e. 15 years. Well, this Judgement contradicts the PCMA ( Prohibition of Child Marriage Act ), which has laid down 18 years and 21 years as age for marriage for females and males respectively.

In Mohd. Ahmed Khan v. Shah Bano Begum[8] ( 1985 (2) SCC 556), the court ruled that section-125 of Code Of Criminal Procedure, takes precedence over Muslim law as Code of Criminal Procedure is a statutory law while Muslim Law is a personal (family) law.[9]


LAWS PERTAINING TO CHILD MARRIAGE:-

The law has failed to eradicate the problem of child marriage completely from the society. Most of the NGOs are fighting against it and many PILs are filed against it. Numerous laws have been enacted to abolish child marriage but it still exists in the society. Some of the laws related to child marriage are :


a. The Child Marriage (Restraint) Act, 1929:- The main aim of the act is to restraint child marriage. It prescribes the age for marriage across India .i.e. 18 years for girls and 21 years for boys.


b. The Prohibition of Child Marriage Act, 2006:- The main aim of the act is to punish the ones who are involved in the activity of child marriage. Also, the children have the choice to call off their marriage worthless within two years of reaching adulthood.


c. The Indian Penal Code, 1860:- Child Marriage and offence of rape – Physical relationship is a primary consequence of marriage and according to Section 376, Exception 2 of IPC “Sexual intercourse or sexual act by a man with his own wife, wife not being under the age of 15 years, is not rape.”

Above 15+ Girl being wife + with or without consent = No Rape.


d. Child Marriage under Hindu Marriage Act, 1955:- It was held by the Delhi High Court in Neetu Singh v. State and Ors. , that under Hindu Marriage Act, Child Marriage is neither void nor voidable but it is punishable.


e. Child Marriage under Muslim Law :- According to Muslim Law, every Muslim who is of a sound mind and has attained puberty ( above 15 years) can marry.


CONCLUSION

Child Marriage is a real big problem of the society. The Government is trying its best to eradicate this problem by enacting a number of laws and people, at their individual level are also making numerous efforts for the same, but this problem still exists. It destroys not only on the people who are married but also their families. Child Marriage robs a child of their childhood, which is no less than a crime. The society needs to understand that child marriage is not a solution, but a serious problem. The laws related to Child Marriage have to be stricter, so that, nobody dares to even think of this idea of child marriage. Along with the laws, the mindset of the people also needs to be changed. They need to be educated, so that they can understand the harms which arise out of child marriage.

[1]https://en.m.wikipedia.org/wiki/Child_marriage [2]https://en.m.wikipedia.org/wiki/Child_marriage [3]https://www.unicef.org/protection/child-marriage [4]https://en.m.wikipedia.org/wiki/Child_marriage [5]https://en.m.wikipedia.org/wiki/Child_marriage [6]https://www.google.com/amp/s/www.indiatoday.in/amp/education-today/gk-current-affairs/story/child-marriage-india-1293581-2018-07-23 [7]https://www.livelaw.in/columns/high-court-of-punjab-and-haryana-prohibition-of-child-marriage-act-pcma-171212 [8]https://indiankanoon.org/doc/823221/ https://blog.ipleaders.in/child-marriage-and-the-laws-pertaining-to-it/amp/ [9]https://indiankanoon.org/doc/823221/ https://blog.ipleaders.in/child-marriage-and-the-laws-pertaining-to-it/amp/

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