Do you remember that Indian Television Drama “Balika Vadhu” which first aired in the year 2008? The image template used here can help refresh your memory. The story of Balika Vadhu revolved around a child bride and signified the setbacks/challenges of child marriages. If we ask today’s generation about their marriage plans, they say I’m still a kid at heart, while they are adults of age 30+ years. On the other hand, there are places across the globe where children are married off in the name of customs. That is why child marriage laws hold utmost important in the international as well as domestic regime. It is not just a question of childhood or reproductive health, but the overall impact on the person in the longer run. Here, we are all set to explore the legal status for child marriages in India and the wider picture Internationally.
International Laws on Child Marriage
There are several International documents of law which address the issue of child marriages in a direct or indirect manner. Let’s dive deeper and know more about the Child Marriage Laws.
Universal Declaration of Human Rights
Article 16 of the UDHR generally discusses the rights of men and women to marry and found a family. It extends such a right to men and women of “full age”. It further requires marriage to be entered into only with free and full consent of the intending spouses. It may be noted that when it comes to giving free consent, the laws across the globe usually place minors in the age-frame of since born till 18 years. The age of majority usually starts at 18 years. There could be difference in age as per child marriage laws of different countries, but the age of consent is usually preferred.
International Covenant on Civil and Political Rights
The ICCPR promotes civil and political rights of the people, as the term suggests. The Covenant includes various rights to promote self determination and integrity, as well as right to family and community, extending to the right to vote and be part of the government functions, etc. Article 23 of ICCPR recognizes the right of men and women of “marriageable age”, to marry and found a family. It further restricts any marriage in the absence of free and full consent of the intending spouses, as was required under the UDHR as well. Thus, the International Covenant of Civil and Political Rights, though leaves it upon the State Parties to decide the age of marriage, but requires spouses to be able to freely consent to such marriage. That is why we need child marriage laws in place even in accordance with the ICCPR.
Convention on the Rights of the Child (CRC)
While the CRC is silent about anyone getting married before attaining the age of majority, or the child marriage laws, Article 1 of the same defines a child. It recognizes anyone below the age of 18 years as a child, unless the applicable laws hint for majority attained earlier.
Convention on the Elimination of All Forms of Discrimination against Women
As it can be deduced, CEDAW is focused upon rights for women in different scenarios to prohibit gender based discrimination. Article 16 surrounds marriage related provisions and entitles women to get married, freely choose their spouse, marry only when they fully and freely consent to it. What needs attention here is Article 16(2) which clarifies that betrothal and child marriage shall have no legal effect. It also promotes framing of child marriage laws to specify minimum age for marriage, while making registration of marriage compulsory.
What are the laws to prevent child marriage in India?
India has a history of child marriages, and the menace still prevails in some areas in the name of customs. In India, the law restraining child marriages was first introduced in 1930. The same has been replaced by the present day child marriage laws.
Prohibition of Child Marriage Act, 2006
The purpose of enacting the Child Marriage Prohibition Act was to put an end to the solemnization of child marriages in India. It came into force on November 1, 2007 and led to repealing of The Child Marriage Restraint Act of 1929. The Act defines a child as a person who has not completed the age of 21 years, if male, and 18 years, if it is a female. In other words, the age of marriage is different for males and females, since a girl can legally marry when she’s 18, but a boy can only marry after attaining the age of 21 years.
Key Features of Prohibition of Child Marriage Act
- The Act applies to whole of India as well as Indian citizens beyond the territory.
- The definition of child marriage does not necessarily mean both the spouses being minors. It also means a marriage wherein either party is a child/minor.
- Child marriages are voidable at the option of a minor as per Section 3 of the Prohibition of Child Marriage Act. In other words, the person married as a child has the option to annul the marriage. This signifies that the option of voidability is only available to the minor and not the spouse who was adult at the time of marriage. A minor may file an annulment petition through his/her guardian, or within 2 years of attaining majority.
- A decree of nullity can be passed by the District Court which also includes return of any money/valuables/gifts/ornaments given at the time of marriage by either side.
- The female spouse here is entitled to maintenance from husband or minor husband’s parent/guardian till remarriage. Provisions for Custody and maintenance of children are also dealt with in the Act.
- Children born in a child marriage have been given the status of legitimacy.
- A male adult (above 18 years) marrying a minor girl is punishable with rigorous imprisonment up to 2 years or with fine up to 1 lakh or both.
- Anyone performing/conducting/directing/abeting a child marriage is punishable with rigorous imprisonment up to 2 years or with fine up to 1 lakh. There is an exception to the punishment if the person is able to prove the lack of knowledge about the same being a child marriage.
- The Act also states punishment for promoting or permitting solemnization of child marriages.
- While generally, a child marriage is voidable, it may be void if the child was taken/enticed away from a lawful guardian, or was taken to a place by force or deceit, or sold for the purpose of marriage and then sold/trafficked/used for immoral purposes.
- The Child Marriage Laws in India don’t only talk about after effects of child marriages, but also empower Courts for taking action in case of information about a child marriage being arranged or about to be solemnized.
- In case injunction orders are passed and the child marriage still takes place, the said marriage is void ab initio.
- The offences under the Indian Child Marriage Law are cognizable and non-bailable.
