CONCERNS OF CHILD MARRIAGE IN INDIA

INTRODUCTION

Child Marriage is defined as a marriage of a girl or boy before the age of 18 and refers to both formal marriages and informal unions in which children under the age of 18 live with a partner as if married. Child marriage affects both girls and boys, but it affects girls excessively, especially in South Asia. Worldwide, as many as 650 million women alive today married before they turned 18. Millions of girls are at risk of child marriage.

According to the 2017 UNICEF report, State of the World’s Children, India is amongst the top 10 countries with the highest rates of child marriage before age 18. The report says that nearabout 47% child marriages is still prevalent in India.

Child marriages have existed in India from the days of the Delhi Sultanate when the monarchy system was prevalent. It was also used as a weapon to guard girls from rapes and abduction by foreign rulers. Though we are now free from the reign of the foreign rulers, we could not make our nation free from the trap of this curse. The sweet little minds, who do not even know the names of their partners and have no idea about all the responsibilities are made to remember chores.

Child marriage in India, as per the Indian law, is a marriage where either the woman is below age 18 or the man is below age 21.

MAIN CAUSES OF CHILD MARRIAGE IN INDIA

Despite extensive investment to empower the girl child, India has seen a shocking rise in the count of child marriage in the last 3 years according to a 2018 report. The more surprising fact is the change in the states practicing child marriage. The maximum number of cases of child marriage have been registered in Tamil Nadu followed by Karnataka instead of the Northern regions. India has become the home to the highest number of child brides in the world. Child marriage is deep rooted within the matrix of culture, socioeconomic and religion. It is interdependent and entwined that result in the imprisonment of children in marriages. The main factors which pertains to child marriages in India are as follows-

1. Poverty

Poverty is one of the main reasons behind early marriages in rural areas as most families have large family sizes. With such families, most parents are unable or unwilling to take care of their children. Some people who cannot feed or send their children to school, give young girls off marriage to older men. Some Poor families even sell their children through marriage either to settle debts or to make some money and escape the cycle of poverty.

2. Security

In some cases, the parents resort to child marriages in order to secure a good future for their daughters. Situations of uncertainty due to abuse, rape, other crimes on girls and acute poverty can lead parents to recourse to child marriage as a protective mechanism.

3. Gender Discrimination

Child marriage is a product of cultures that weaken women and girls and differentiate them. The differentiation, according to a UNICEF report on ‘Child Marriage and the Law’ often exhibits itself in the form of domestic violence, marital rape, deprivation of food, lack of access to information, education, healthcare, and general impediments to mobility. These are some of the gender biased sensitivities in the male dominated Indian families.

4. Caste Hierarchy in the Traditional Society

Caste hierarchy also has a role to play in perpetuating this system. Based on birth and heredity, caste does not allow marriages between nearly 116 members of different castes. But youngsters whose emotions and passion can be ruled by other considerations, could violate this injunction. Thus, the hereditary caste system could have helped in nourishing the practice of child marriage out of a necessity to preserve itself.

5. Trafficking

Poor families are tempted to sell their girls not just into marriage, but into prostitution, as they get  large sums of money which can benefit the girl’s family in cost of the girl. There is a lot indifference towards their girls and the money by selling their girls is used for the benefit of their sons.

6. Poor implementation of laws

Sometimes due to lack of proper implementation of the prevailing laws, the kids become victim of child marriage. Some of the Acts suffers from certain lacunae, it is capable of impact if it is actually utilized. Sometimes those are even reported to be misused by the police only to harass offenders and extract reasons from them.

7. Media Influence

All the children are under great influence of media and aim to be something without relevant knowledge and skills. They get attracted to the cities and cannot cope with the stress of life in the cities and as a result get trapped into many problems. These also often becomes the reason for child marriages.

8. Violence against girls

Some girls are married off due to fear of kharab mahaul – the corrupted external environment – and reports of the rape of women in public spaces. However, a 2014 study found that child brides in India are at greater risk of sexual and physical violence within their marital home.

CURRENT NEWS AND STATS

India is a developing nation. With the increasing amount of social and moral degradation, it will ever remain ‘developing.’ The child marriage percentage in our country has dropped from before, still India lacks in curbing it.  According to a report released by UNICEF in 2018, despite the drop in the number of child marriages, nearly 1.5 million girls in India get married before they turn 18. Child marriage remains a social evil. When a girl is forced to marry as a child, she faces lifelong consequences. She losses the opportunities of finishing school, but on the other hand her chances of being abused by her husband and suffering lot complications during pregnancy increase. There are also different societal consequences. A few states like Bihar, West Bengal and Rajasthan is reportedly continuing to carry on with the harmful practice of under-aged marriage and there is nearly 40% prevalence in these states according to UNICEF. Some of the key facts about child marriage in India are-

• One in three of the world’s child brides live in India. Of the country’s 223 million child brides, 102 million were married before turning 15.
• The prevalence of child marriage differs across states and union territories in India. Majority of the Indian child brides live in five states namely Uttar Pradesh, Bihar, West Bengal, Maharashtra, and Madhya Pradesh. Uttar Pradesh is home to the largest population of child brides over 36 million.
• The majority of young women who married in childhood gave birth as adolescents. Child brides go on to have larger families compared to women who marry later.
• It’s a matter of hope that India is still improving in eradicating child marriage. India ranks 4^th among the eight South Asian countries in terms of child marriage prevalence.

EFFORTS IN PREVENTING THE PRACTICE- FROM THE INCEPTION

Practice of Child Marriage is deep-rooted in the traditions long followed by the society. In 19th Century, the great social reformers like Raja Rammohan Roy, Ishwar Chandra Vidyasagar, worked for uprooting this evil practice. Noting these efforts, the then colonial government too introduced some legal measures against this practice. Marriageable age of girls was raised to 10 years by the law passed in 1860.  Afterwards, Age of Consent Act, 1891 increased this age to 12 years.  The Sharda Act passed in 1929 laid that, a girl below 14 and a boy below 18 cannot be married, thus preventing child marriage. Though these laws helped improved women position, child marriage could not be uprooted completely due to prevailing socio-religious customs societies, laid by the then society.

STEPS TAKEN BY THE UNICEF

UNICEF is working together with the Government of India in its efforts to prevent child marriage, including the implementation of the convergent national strategy. UNICEF’s approach to ending child marriage in India recognizes the complex nature of the problem, and the socio-cultural and structural factors behind the practice. UNICEF India accomplished its ‘scale-up strategy’ to prevent child marriage and increase adolescent empowerment by working with government, partners, and relevant stakeholders from the national level down to the district level. UNICEF considers five entry points to accelerate these changes:

• to increase agency and resources for adolescents – especially girls who are at risk of and affected by child marriage.
• to enhance legal and development policy frameworks for an empowering environment that protects the rights of adolescent girls and boys.
• to increase the generation and use of a strong evidence base for advocacy, programming, learning, and tracking progress.
• to enhance systems and services that respond to the needs of adolescents who are at risk of or affected by child marriage.
• to increase social action, acceptance, and visibility around investing and supporting girls, and shifting social expectations relating to girls.

At the global level, child marriage is included in Goal 5 “Achieve gender equality and empower all women and girls.” In 2016, UNICEF and UNFPA joined hands through a Global Programme to Accelerate Action to End Child Marriage in 12 countries with the highest rates of child brides. In South Asia, it is implemented in Bangladesh, India, and Nepal. The programme works in partnership with governments, civil society organisations.

LEGISLATIVE MEASURES TAKEN IN INDIA

1. Prohibition of Child Marriage Act (2006)

This law was passed by the Indian parliament to replace the Child Marriage Restraints Act, 1929. This act criminalizes the acts of the person who performs, conducts, directs, or abets any child marriage and provides for punishment with an imprisonment up to two years and fine up to 1 lakh. The PCMA establishes the power of courts to issue injunctions to prohibit solemnization of a child marriage either Suo moto (on its own motion) or in response to complaints filed by any person or non-governmental organization having reasonable information relating to a child marriage. Further, the PCMA recognizes legal status for all children born from child marriages ‘for all purposes’ and states that district courts issuing decrees of nullity shall make appropriate orders for their custody and maintenance.

2. Indian Penal Code

Child marriages are not specifically penalized under the IPC, but Section 366 on forced marriage establishes the kidnapping or abduction of a woman to compel her to marry and the use of any method of compulsion as a punishable offence. The IPC also contains other provisions that may be applicable to child marriage in certain cases, such as Section 496 which establishes that going through a marriage ceremony with fraudulent intent is a punishable offense and Section 370 which addresses human trafficking for the purposes of sexual exploitation, slavery, and servitude. The gamut of harms resulting from child marriage can also result in violations of several provisions of the IPC and related laws that criminalize violence against women and children.

3. Various personal laws

	Minimum legal age under which marriage is invalid	Minimum legal age under which marriage is voidable	Requirement of consent	What’s the process to dissolve a marriage in contravention of the minimum legal age?	Punishment and sentencing
Hindu Marriage Act, 1956	No minimum age. 18 years and 21 years for girls and boys respectively are the minimum age for a valid marriage, but marriages solemnized below this age are not considered	Girl married before 15 years old can disclaim her marriage after 15 and before she turns 18. For girls married after 15, marriages are not voidable unless consent of her guardian was obtained by force or by fraud.	No consent. But parties should not be incapable of giving consent due to unsound mind or suffering from insanity	Decree of divorce	Punishment provisions apply to the couple who marry below legal age of 18 for girls and 21 for boys and to the person who procures such a marriage. Sentence was amended under the PCMA to increase the punishment to rigorous imprisonment up to two years or a fine of up to 100,000 rupees or both
Muslim Personal Laws	No minimum.	Girl married before puberty (before 15) can disclaim her marriage after 15 and before she turns 18, if marriage has not yet been accomplished.	Consent needed. Girl above 15 must consent to her marriage. Parents or guardians can provide consent for marriage of girl below 15, which can be repudiated.	Decision to void marriage must be confirmed by a court	Not punishable by law/no sentence
Indian Christian marriage act (ICMA)	No minimum age if a preliminary notice is published at least 14 days before marriage or there is consent from a parent or guardian.	No minimum	Girl above 18 and boy above 21 must consent to their marriage. Parents or guardians can provide consent for marriage of minors.	Not available	Penalties only for marriages performed without parents’ consent before expiration of notice period. Sentence entails imprisonment up to three years and a fine
Parsi marriage and divorce act (PMDA)	21	Age is not included in the PMDA as a ground to void marriage	No	Decree of nullity of marriage, dissolution or divorce or judicial separation	Not punishable by law/no sentence
Jewish personal laws	12	No minimum	No	Not specified	Not punishable by law/no sentence

 

Law reforms suggested by the courts

The Supreme Court of India has encouraged the Government of India and state governments to develop stronger initiatives for ensuring the effective implementation of the PCMA, criticizing the Act as being ‘breached with impunity,’ and suggested its review. The Supreme Court stated that, “The time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage.”

WAY FORWARD IN ERADICATING THE PRACTICE

Child marriage ends childhood.  It negatively influences children’s rights to education, health, and protection. These consequences impact not just the girl directly, but also her family and community. The international centre for research on women (ICRW) conducted a systematic review of programmes that measured a change in knowledge and behaviours related to child marriage. ICRW identified five most important strategies used to prevent child marriage. The five strategies are-

• Empower girls with information, skills, and support network
• Provide economic support and incentives to girls and their family
• Educate and rally parents and community members
• Enhance the girl’s access to high quality education
• Encourage supportive laws and policies

Not only formulation of various legislations, only by proper implementation of the laws we can get rid of the menace of child marriage.

 CONCLUSION

Marriage of juvenile girls is a fundamental violation of their human rights including their sexual and reproductive health. It is also a threat to the prosperity and stability of countries. Early marriage is closely associated with poverty. Some interventions on behalf of teenage girls have focused on improving their economic situation as a means of yielding them higher status and more control over their lives including their options in marriage. There had been various scheme to bring about measurable improved outcomes for the education, health (especially infant and maternal mortality) and empowerment of the girls and immeasurable benefits for larger society. The children of today are the future of tomorrow. So instead of getting them married at an early age, one should look after their proper education and well-being. Therefore, it is needless to say that an integrated approach needs to be adopted to curtail the problem of child marriage and raise the status of girls. Initiatives such as ‘Apni Beti Apna Dhan’, ‘Beti Banchao Beti Padhao’ encourage families to delay marriages by providing various incentives.

 

 

 

Author: SHINJINEE NAMHATA,
IFIM LAW SCHOOL, BENGALURU, 1st Year BBA-LLB