March 23, 2010
By Ruchira Goswami, Guest Contributor
Upheld and sanctioned by traditional customs, child marriage is still significantly practiced across India.
The 205th Law Commission Report cites significant statistics on the scale of child marriages in India . According to the report, in a study carried out in 1998 to 1999 on women aged 15-19 years, it was found that 33.8% were currently married or in a union. In 2000 the UN Population Division recorded that 9.5% of boys and 35.7 % of girls aged between 15-19 were married. The National Family Health Survey of 2005-2006 (NFHS-3)  carried out in twenty-nine states confirmed that 45% of women currently aged 20-24 years were married before the age of eighteen years, with 58.5% in rural areas and 27.9% in urban areas (27.9%) and exceeded 50% in eight states. Only five states of Himachal Pradesh, Manipur, Kerala, Goa and Jammu and Kashmir report less than 20% of women married before 18. A Unicef Report prepared for a state consultation on Child Marriage in West Bengal in November 2009 states that over 39.5% of Indian girls are married before they are 18 years and 25.4% of girls are married by the age of 15. West Bengal has the 7th highest percentage of under age marriages amongst all states, where one in every two girls are married during childhood. In West Bengal 56% of girls are married by the age of 18 according to NFHS(3). Districts of Malda, Birbhum, Bankura, Murshidabad, South Dinajpur, Puruia, South 24 Parganas, Nadia and Cooch Behar have the highest incidence of child marriage. The Unicef report significantly mentions that even in the non slum areas in Calcutta where families are wealthier and girls are likely to have better education, more than a quarter of girls are married in childhood. In West Bengal, more than 25% girls are married to men who are ten years older or more. 7% of girls begin child bearing by the time they are 15, 34.8% by the age of 18 and almost 50% of girls are pregnant by the age of 19 in this state. The NFHS-3 findings further revealed that 16% of women aged 15-19 were already mothers or pregnant at the time of the survey. The NFHS(3) stated that more than half of the Indian women in the age group of 20-49 were married before the legal minimum age of 18 compared to 16% of men in the similar age group who were married by 18.The 2001 Census of India revealed that 300,000 girls under 15 had given birth to at least one child.
A Brief History: Salient Cases in Colonial India
Two significant cases in the nineteenth century brought the issue of child marriage into limelight. The Rukhmabai case in Maharashtra and Phulmonee case in Bengal as they are popularly known raised significant questions about the age and issue of consent in Hindu marriage. Both the cases marked the tension between the Hindu orthodoxy on one hand that upheld child marriage and perceived any opposition to it as an affront to tradition and social reformers opposing such religious bigotry on the other hand. For the latter such blind adherence to social norms meant the continuation of harmful practices in the name of tradition and therefore necessitated immediate challenge of such socially sanctioned practices including child marriage. While the debate on child marriage is often understood as a tradition-modernity dichotomy, it is also important to bring to the fore the struggle by women themselves in these cases to challenge patriarchal values and practices, albeit in their limited ways.
The case of Rukhmabai dates back to 1884 when twenty two year old Rukhmabai refused to consummate her marriage solemnized at the age of eleven. Rukhmabai was eleven years when she was married to Dadaji Bhikaji, a poor cousin of her stepfather Sakharam Arjun. On reaching puberty few months after her marriage, the expected ritual was that of garbhadhan or the ritual consummation of the marriage. However, such early consummation was not encouraged by Sakharam and so Rukhmabai remained at her natal home and continued to study. Rukhmabai’s husband was a man of questionable character and within a few years time, she realized that she did not want to remain in this marriage. After eleven years of the unconsummated marriage, Dadaji filed a case for restitution of conjugal rights, a British law incorporated into the colonial legal system by which either of the spouses could demand for the union with his or her spouse when either party was as living apart without adequate reason. Rukhmabai steadfastly refused and defied the Privy Council’s order to ‘return’ to her husband, stating that she preferred courting imprisonment for violating orders than remaining in a marriage that she did not want. Her argument that she cannot be compelled to be tied in a marriage that was conducted at an age when she was incapable of giving consent was an argument hitherto unheard of and unimaginable. Rukhmabai’s struggle against indigenous patriarchal customs was not confined to her personal resistance only. She wrote in the Times of India under the pseudonym of A Hindu Lady attacking institutions of infant marriage and forced widowhood. While critics of infant marriage still considered early marriage as essential to hindu shastric norms suggesting a raised age of 12 years, for Rukhmabai the minimum age of marriage should be 15 years. In 1891, the age of marriage rose to 12 years from 10 years. While Rukhmabai had an out of court settlement with Dadaji, the case became a landmark in colonial India for raising issues of consent and choice of women in marriage .
The Phulmonee case
In 1890, eleven year old Phulmonee died of marital rape by her twenty nine year old husband Hari Maiti. Her mother Radhamonee’s account of seeing her daughter lying in blood and succumbing to the injuries of forced intercourse paved the ground for the age of consent debate. Hindu norms mandated sexual intercourse on men when their child wives attain puberty and the colonial law only penalized marital rape when then the child wife was under the age of ten. Since Phulomonee was older, Hari Maiti was not accused of marital rape and murder and charged for rash acts . However, this case pushed the colonial government to raise the age of consent for marriage of girls to twelve. More importantly this case raised questions whether families or communities had the right to inflict pain or suffering on women using the plea of tradition. Both these cases paved the ground for not only raising the age of marriage of girls but more importantly confront issues of choice and consent of women in marriage. These cases in the 19th century were precursors to later discussions and legal interventions on child marriages in 20th century in India.
The Child Marriage Restraint Act in 1929 (CMRA) , also popularly known as the Sarda Act, known after the chief proponent of the Act, Harbilas Sarda raised the minimum age of marriage to 14 years. The Act was amended in 1940 to raise the age at 15 years and in 1978, by a further amendment, the minimum age rose to 18 years.
The Prohibition of Child Marriage Act 2006 (PCMA) 
This law replaces the previous Child Marriage Restraint Act. The shift in the naming somewhat reflects the stronger intention of the state not simply to restrain but prohibit child marriage. While the new law maintains some parallels with the older law, there are significant departures too in the new Act. As in the previous Act, the definition of child remains the same in the new law- i.e. a child is a male under 21 years of age and a female under 18 years of age.
Voidable Marriages :
Options of declaring a child marriage as void: Under the new Act, child marriages are voidable at the option of the contracting party who was a child at the time of the marriage. The petition to declare the marriage void has to be filed within two years of the child attaining majority. This means that boy and/or girl who was a minor at the time of his/her marriage has the option of approaching the courts to declare the marriage null and void within two years of attaining adulthood.
Restoration and Residence:
The Act mandates the return of all valuables, money, ornaments, and gifts in marriage on declaration of the nullity order by the Court. Using principles of the Protection of Women from Domestic Violence Act, 2005, this Act provides for the maintenance and residence for the minor girl till her remarriage by her husband or his parents.
Rights of Children:
Following the international Convention on The Rights of the Child (CRC) and the national Juvenile Justice Care and Protection Act, 2000; PCMA declares that all children born are legitimate, (including those born in void or voidable marriages). On declaration of nullity of marriage, the courts are expected to give appropriate orders for custody for any child born in such marriages, taking best interests of the child into consideration.
Unlike the CMRA where punishment was negligible for marrying a minor, the PCMA provides for enhanced punishment for any male over 18 years of age with rigorous imprisonment of up to 2 years or with a fine upto 1 lakh rupees or both. Similar punishment is prescribed for anyone who performs, conducts, directs or abets or negligently failing to prevent any child marriage. However, no woman can be punished with imprisonment. All offences are cognizable and non-bailable.
PCMA declares that in certain circumstances the marriage of a minor will be declared null and void. These situations include a minor a) enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after whichouse the minor is sold or trafficked or used for immoral purposes.
Powers of Authorities:
The Act provides for the appointment of Child Marriage Prohibition Officers by the State Governments and gives powers to these officers to prevent and prosecute solemnization of child marriages and to create awareness on the issue. Additionally, District Magistrates are also deemed to be the Child Marriage Prohibition Officer to prevent solemnisation of mass child marriages on certain days such as Akshaya Tritiya.
The democratic nature of the act is evident in the options and opportunities it gives to the contracting parties. While minors have an option of coming out of marriage that is not of his/her choice, the Act mandates the issuance of an injunction order to parties solemnizing the child marriage. However, the injunction order can only be given after the Court has issued a written notice and adequate opportunity to the concerned parties to show cause against the issue of the injunction. This gives an opportunity to the contracting parties to understand that their action is illegal and the court has taken note of it and gives them time to call off the child marriage. This can also help to minimize use of force by prohibition officers or district magistrates at the venue where the solemnization of child marriage is taking place. However, the Act also provides that in case of any urgency, the Court shall have the power to issue an interim injunction without giving any notice under this section and allows ex parte inunctions as well.
The punishment for disobeying the injunction is the same in the case of an adult male marrying a minor – ie imprisonment that may extend to two years or with fine, which may extend to one lakh rupees or with both. The child marriage that has been solemnized in contravention to the injunction orders is void ab initio – which means that it is void right in its inception.
While the new significant provisions of the Act deserve mention, a close analysis of the Act reveals certain limitations. The PCMA maintains the distinction between void and voidable marriages. There seems to be an underlying assumption in the Act that girls on attaining maturity will have the agency and adequate support from their families to approach the courts for nullity of marriage. Often courts have given decisions that child marriages, once solemnized and consummated makes it very difficult, if not impossible for girls to deny and step out of those marriages. Therefore, it is in keeping with the social reality that such marriages are not declared void. If such judgments and the previous CMRA are criticized for its inability to control child marriages, the new Act equally fails to achieve its objectives where it retains the distinction between void and voidable marriages with simply leaving the choice to the woman. If the social reality largely remains the same, the likelihood that young girls will now choose to nullify their marriages, which would probably be consummated by the time she attains maturity and decides to approach the courts, seems far-fetched.
The applicability of PCMA on various marriages of different communities and religion is unclear. Social customs and personal laws of different religious groups in India allows marriage of minor girls and the PCMA does not mention whether it prohibit all the under age marriages that are sanctioned by religious laws.
The efficacy of the PCMA is also dependent on other related legislations and policy initiatives. Compulsory registration of all marriages is absolutely essential in this regard. In 2008, a Supreme Court judgement gave directives to all state governments to suitably frame and amend rules to make compulsorily register all marriages within three months irrespective of castes, communities or religions. Compulsory registration mandates that the age of the girl and the boy getting married have to be mentioned. If implemented properly, it would discourage parents from marrying off their minor children since a written document of their ages would prove the illegality of such marriages. This would probably be able to tackle the sensitive issue of minor marriages upheld by personal laws .
There is an urgent need to change sexual assault laws to address the issue of acceptance of child marriages. An exception in rape law under section 375 of the Indian Penal Code states that sexual intercourse by a man with his wife who is not under 15 years of age is not rape. The punishment for rape stated in section 376 states a minimum term of seven years imprisonment that may also extend to life. However the same provision states that a man is liable to punishment of a maximum of two years and fine only if his wife is under twelve years of age! Not only does this archaic law not acknowledge marital rape, there is also a tacit approval of under age marriages in the exception clauses. While international human rights law like the Convention on the Rights of the Child Rights ratified by India recognizes all persons under the age of 18 as children, the exception clauses in rape laws draws distinction between child brides who are 15 years with whom sexual intercourse in marriage is valid and punishes only when the child is under 12 years. Hence, the success of PCMA is bound to be extremely limited without commensurate changes in other related laws involving children.
Legal reforms and progressive amendments in existing laws become relevant in people’s lives only when there is a strong political will to implement such legislations. The gang rape of Bhanwari Devi, a social worker in Rajasthan by upper caste men to teach her a lesson for trying to stop child marriages has not faded from our memories . In 2005, Shakuntala Verma, another social worker from Madhya Pradesh was attacked with a sword and her hands were nearly severed for trying to prevent child marriages .
However, the picture is not very bleak. In recent times, a number of news reports have come in where young girls from poor and rural backgrounds have refused to get married, resisted their parents and communities and have continued their studies. While these are still individual stories of courage and resistance; a comprehensive legal system, commensurate political will and civil society involvement will create enabling conditions where these individual struggles could transform into a widespread social change.
 Law Commission of India, Proposal To Amend The Prohibition of Child Marriage Act 2006, and Other Allied Laws, Report No. 205,February 2008
 National Family Health Survey 3 available at http://www.nfhsindia.org/nfhs3.html, see also 205th Law Commission Report
 State Consultation on Child Marriages in West Bengal, Background Note, Unicef , November 2009
 Chandra, Sudhir, Enslaved Daughters, Oxford University Press
 Sarkar, Tanika, A Prehistory of Rights:The Age of Consent Debate in Colonial Bengal, Feminist Studies 2000
 The Child Marriage Restraint Act 1929 available at http://wcd.nic.in/cmr1929.htm
 Prohibition of Child Marriage Act 2006 available at http://www.commonlii.org/in/legis/num_act/pocma2006259/
 Kumar, Gaurav, Marriage Registration available at http://unilawonline.com/articles/marriage_registration.htm
 Rajalakshmi T.K., Costly Intervention, Frontline, Volume 22 – Issue 14, Jul 02 – 15, 2005 available at http://www.thehindu.com/fline/fl2214/stories/20050715007800600.htm