Why Child Marriage is Prohibited Yet Permissible?

By– Khushnuma Rahman from Amity Law School, Amity University Patna

INTRODUCTION

Child Marriage is dealt with under the Protection of Child Marriage Act of 2006. Here, a Child is defined as someone who has not attained the majority. Regarding their gender for males, the age requirement is 21 years old & for females, it is 18 years old. In India, child marriage has been practiced since ancient times, when young children and teenagers were married off long before they reached physical and mental maturity. These reasons may include economic necessity, seeking male protection for their daughters, the desire for early childbearing, and adherence to oppressive traditional values and norms. It has been a persistent issue in India for a long time due to its deep roots in traditional, cultural, and religious practices. It is also linked with other issues such as dowry and child widowhood.
Child marriage is closely associated with poverty and tends to make girls more vulnerable. When girls marry young, they often become socially isolated and lose connection with their family, friends, and support systems. This puts them at risk of limited educational and job opportunities. Despite the Prohibition of Child Marriage Act (2006), child marriage continues to be widespread due to various factors such as structural inequalities and regressive social norms. This analysis aims to examine and track the trends in child marriage practices in India. The review will be based on the latest data and evidence and will investigate socio-economic factors to understand their specific role in perpetuating this harmful practice. According to the UNFPA[1], statistical figures show notable variations between different states and religious groups. The latest data and evidence examine socio-economic determinants to understand the specific roles of these factors that perpetuate this harmful practice.

Reasons behind Child Marriage in India

Poverty: It is a major driver of child marriage in India. Families from low-income backgrounds often marry off their young daughters to alleviate financial strain and with the belief that early marriage will ensure their future security.
Dowry: Child marriage in India is often driven by the desire to secure a dowry. Families marry off their young daughters when the dowry demand is low, but as the girls grow older, the dowry demands tend to increase.
Lack of education: Lack of education and awareness contributes to child marriage. Educated individuals are more aware of its harms.
Cultural beliefs: Traditional and cultural beliefs in India promote child marriage to protect girls and ensure family lineage continuity.
Discrimination: The social status of women is often linked to marriage and motherhood. So, girls are married off at a young age.
Lack of enforcement of laws: Despite laws prohibiting child marriage in India, enforcement remains weak, with insufficient punishment for those performing child marriages, encouraging the continuation of the practice.
Health concerns: Misconceptions about the health benefits of child marriage exist. Some believe early marriage benefits girls physically and mentally, but the reality is the opposite.

LAWS CONCERNING CHILD MARRIAGE

Child marriage is a legal agreement between two individuals, where one or both parties are children. Any child marriage that occurs before or after this can be canceled by the individual who was a child at the time of the marriage. However, the marriage must be canceled before the child reaches the age of their second maturity. In several Indian states, including Rajasthan, Uttar Pradesh, Madhya Pradesh, Jharkhand, Chhattisgarh, Bihar, and Andhra Pradesh, the average age at which females marry is below the legal age of eighteen. These states, characterized by high population density, also experience high rates of child marriage. The practice of child marriage in India has significant implications for population control, as young brides tend to have higher fertility rates and are more prone to experiencing unwanted pregnancies.
Child Marriage Restraint Act, 1929[2]: This was the British government’s first law to establish a minimum marriage age, aimed at preventing child marriages. The Act increased the minimum age of marriage to 14 for girls and 18 for boys.
Child Marriage Restraint (Amendment) Act, 1978: This law increased the minimum age of marriage for girls from 14 to 15, but it did not effectively reduce child marriages.
Child Marriage Restraint (Amendment) Act, 1984: This law raised the minimum marriage age for girls to 18, aligning it with boys. However, implementation remained ineffective.
Child Marriage Restraint (Amendment) Act, 2006: This law increased the penalty for officiating child marriages to imprisonment for up to 2 years and a fine of Rs. 1 lakh.
Prohibition of Child Marriage Act, 2006[3]: In India, this current law prohibits child marriages, defining a child as a male under 21 years and a female under 18 years.

Clash between Special law and Personal law

Under Muslim personal laws, it is permissible for a girl who has reached puberty to enter into marriage. According to these laws, puberty is considered to be attained at the age of fifteen if there is no evidence suggesting otherwise. This discrepancy between Muslim personal law and specific statutes that prohibit child marriages or sexual activity involving minors raises concerns regarding the legality and criminal implications of such marriages.
The HC ruling quoted the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, on the capacity for marriage. It states:

Capacity for marriage:

1. Every mature and sound-minded Muslim individual has the right to enter into a marriage contract once they have reached puberty.
2. Those who are considered to be lunatics and minors who have not yet reached puberty can be legally married under the guardianship of their respective guardians.
3. If a Muslim of sound mind and who has reached the age of puberty enters into marriage without their consent, the marriage is void.

Muhammad Ibrahim v. Atkia Begum & Anr.[1] held that under Muslim law, a girl is considered to have attained the age of puberty if: (a) she has attained the age of 15 Years, or (b) attaining the state of puberty at an earlier age. The same rule is also applicable to a Muslim Boy. Thus, it can also be said that in the absence of any contrary, a Muslim is considered to have attained the age of puberty at 15 years. After attaining the age of 15, parties can give their consent and there is no need for the consent of guardians.

If a person is a minor, i.e., not attained the age of puberty, the consent of the guardian is required to make the marriage lawful. The persons recognized as guardians under Muslim law are:
(a) Father,
(b) Paternal Grandfather
(c) Brother or any other male member of father’s family
(d) Mother
(e) Members of Maternal Relation: If the previous guardian is unavailable, the right passes to the next guardian in order of priority. If none of these guardians are available, the marriage may be contracted by a Qazi or another Government Authority.