CONTENTS

● ABSTRACT

● INTRODUCTION

● THE DEFINITION, INCIDENCE AND CAUSES

● THE HISTORICAL PERSPECTIVE AND THE DEVELOPMENT OF

LAW ON CHILD MARRIAGE

● THE LEGISLATIVE PROVISIONS

● ISSUES OF VALIDITY OF CHILD MARRIAGE

● CONCLUSION AND SUGGESTIONS

 ABSTRACT

Child marriage is a gross breach of children's human rights. Although it destroys both
sexes' right to healthy development, the repercussions for the girl children involved are
more seriously detrimental. Child marriage is both the source and the product of gender
violence, thereby establishing a vicious circle of endless inequality. This leads in human
rights violations with severe unwarranted effects such as early spousal cohabitation
resulting in late sexual relationships, early abortions, malnutrition, child and maternal
mortality, lack of opportunities for education and jobs, etc. There is inherent legal
ambiguity in clauses of different laws that, on the one hand, provide for criminal
consequences and, on the other, maintain the legitimacy of child marriage. The judicial
decisions are no different in approach and are much dependent on doctrine of factum
valet that accords validity to the child marriage emphasizing more on the dictates of the
Hindu religious scriptures and personal law. The present paper discusses the concept of
child marriage, its causes and consequences, legislative and judicial response and its
intricate nexuses with the reproductive right of women.
 INTRODUCTION

Marriage before the age of majority is a plightful reality of many young women across
the globe. It is a matter of extreme shock and concern that even after seventy years of
independence, the instances of child marriages in India are still quite rampant. Girls' child
marriage is a largely ignored social issue in India and is rarely given due consideration by
policy makers and law enforcement agencies and scholars. It is despite the fact that child
marriage is a major human rights violation which presents itself as a serious form of
family-level sexual violence. Child marriage is a serious social evil that not only infringes
the rights of the child protected by various UN instruments but also infringes the legal
obligation embodied in the values of the Indian Constitution.1

Child marriage violates the human rights of both sexes of children involved, but in the
case of girl children, the dynamics of poverty, injustice and sexism are more intense.
Child marriage robs a girl of her childhood that is required for physical, intellectual,
social, and psychological development as it contributes to a vicious circle of early
pregnancy, malnutrition, and maternal mortality. Child marriage not only denies her
reproductive rights to the girl child, but also dramatically hampers her chances of
education and employment, which further adversely affects her growth. In early
pregnancy, there are significant risks of fetal deformities in the case of their survival and
high risk to both the child and the mother's lives. Thus, as a result of early pregnancy, the
health and development of two generations of children – the child mother and the
newborn baby – suffer. Child marriages contribute significantly to population explosion
at the national level.

1 Constitution of India, 1950art 39(f):– “The State shall direct its policy towards securing that children are
given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity”.
 THE DEFINITION, INCIDENCE AND CAUSES

Child marriage means “a marriage to which either of the contracting parties is a

child”.2Child means “a person who, if a male, has not completed twenty one years of age,
and if a female, has not completed eighteen years of age”. Many a times, in discussions
and discourses, terms like ‘early marriages’ or ‘forced marriages’ are also used to
describe child marriages. ‘Early marriage’ describes a marriage that occurs prior to the
age of marriage recognised by law and the term ‘forced marriage’ highlights the lack or
incapacity to give consent on the part of child contracting party to marriage, due to
minority.

Given the bad effects for individuals and society at large of child marriage, its prevalence
is common in India, especially in the states of Rajasthan, M.P., Gujarat and Karnataka. In
these States, thousands of children are married off on auspicious days like
AkshayaTritiya and in few cases, marriages are even reported to be made while the
contracting child party was in the womb.3

NFHS (National Family Health Survey) and DLHS (District Level Household and
Facility Survey) are the main official government sources providing data on child
marriage. Approximately twenty-three million girls in India, according to these surveys,
face the reality of child marriage. While the world is rising by an average of 8% a year,
child marriage is declining by less than 1% a year. While the practice concerns on
average one in two women between the ages of twenty and twenty-five, the prevalence
among disadvantaged groups is even higher among poorer families and in rural areas.
Furthermore, the NFHS results showed that at the time of the study, 16 percent of women
aged 15 to 19 were already mothers or pregnant. More than half of Indian women were
also found to be married before the legal minimum age of 18 years compared to 16
percent of men, aged 20-49 years, who were married at 18 years of age. The results of the
NFHS did not collect information on girls marrying under the age of 15, presumably

2 The Prohibition of Child Marriage Act, 2006,s. 2(b),

3“Here Marriages are made in the Womb”, Deccan Herald, (12.10.97)
blissfully believing women are never married until they reach the age of 15. Marriage is a
cultural decision, not an individual decision, which is essential for all, especially for
women. The persuasive precursors to child marriages are several socio-cultural factors
such as low status of women and the applicability of endogamy rule in marriage. The low
age of marriage is related with the near universality of marriage in India. The girl child in
India is neglected and is considered a burden on the paternal family, and it seems that the
first penalty on her life is marriage followed by reproduction. The more sophisticated a
girl gets, the more chances she can turn her mind to her partner's decision and may go
against the parental authority by failing to comply with the unwelcome cultural norms
and rules of society. To order to avoid these embarrassing situations, child marriage
presents families with an easier way out.

The Indian culture gives great importance to women's modesty and chastity. The major
cause of young age marriages is the need to maintain the innocence of children.
Furthermore, the religious scriptures also forbid a woman to be married only when she is
a virgin. A father who was not able to marry his daughter before pre puberty was thought
to commit a sin by Brahmins.

It is also known that young unmarried women were vulnerable to voluntary and
involuntary sexual intercourse, including rape. In order to protect the girls from
promiscuity and motherhood before marriage, there seems to be a tendency on the part of
the parents to transfer their responsibility to guard the girl to the other family as soon as
possible by giving her in marriage.

In the lower strata of society, the girls ' bride price is paid by their paternal families and
the family of the groom is pleased to have an extra pair of hands in order to earn for the
household. The lack of education is the everlasting source of child marriage as parents
are unable to distinguish definitions of pregnancy and sexual maturity and are unable to
understand the terrible health effects of early reproduction. The mean age of marriage has
risen over the last century, but it's rate is so sluggish that generations of girls keep
marrying young and reproducing early.
 THE HISTORICAL PERSPECTIVE AND THE
DEVELOPMENT OF LAW ON CHILD MARRIAGE

The source of child marriage practice remains unclear and there is doubt about the time
during which this social evil was first manifested. Under the uncodified Hindu rule, as
per Mitakshara, at the end of the seventeenth year and as per Dayabhaga, at the end of the
fifteenth year, marriage capability was attained. The British customs and ideals
influenced the reformist movement against child marriage during the Victorian period. In
addition, it was the first law commissioners who, in 1846, drew up the Penal Code, who
first conceived the idea of having a crime of sexual intercourse between the husband and
the wife, under 10 years. In the notorious case of Queen v. Haree Mohan Mythee4 in
which an 11-year-old girl died as a result of sexual injury to her 35-year-old husband, the
child marriage campaign picked up its due pace. In 1891, by the Criminal Law
(Amendment) Act, 1891, the age of consent for sexual intercourse was extended from 10
years to 12 years to ensure that women's children were shielded from premature
cohabitation. By the end of the last century, public attention became primarily focused on
improving country physics and minimizing causes of unusual mortality. As a result, the
Criminal Law (Amendment) Act further increased the age of consent for married women
from 12 to 13 years in 1929.

In 1927, in the case of married women, Hari Singh Gour introduced a Bill to raise the age
of consent to 14 years. The Age of Consent Committee was named to study the Bill and
examine the societal impact that was brought about by the earlier provision. The
Committee recommended that the enactment of a law penalizing marriages below a
certain age and also made a very confusing suggestion that the validity of marriages
should remain unaffected in contravention of such marriage law.
In the same year, by making these marriages void when either party was below the
prescribed age, Rai Sahib HarbilasSarda introduced a Bill to prohibit the solemnization of
child marriages between Hindus. The Bill finally culminated into the Child Marriage

4 6ILR 1891 Cal 49.

Restraint Act, 1929 which is popularly called ‘Sarda Act’, an Act named after the person
who had introduced the Bill.
 THE LEGISLATIVE PROVISIONS

The Child Marriage Restraint Act, 1929

There are several cases of world history where the legislation was used to bring about
social reforms. Furthermore, the Child Marriage Restraint Act, 1929, was a step in this
direction and extended not only to Hindus, but to all Indian people 5. The Act was
designed to prohibit marriage solemnization between two persons when they were below
the age limit imposed by the Act. Initially the age limit for women was 14 years and for
children it was 18 years. An amendment to the Act in 1949 increased the age limit for
women to 15 years. Another important change came about in 1978 when the age limit
was raised to 18 and 21 years respectively for both girls and boys, primarily with a view
to checking population growth in the country6. It was also envisaged that an improvement
in the age of marriage would improve the health of the mother and son.

The Act penalizes the marriage of a minor girl by an adult male. If the groom was over
21 years of age, he was liable to be punished with a fine of up to 3 months if he was
between 18–21 years of age, a punishment of up to 15 days SI or a fine of up to
Rs.1,000/-or both can be imposed on him. However, for a female adult who married a
minor boy, there was no similar provision, possibly because such incidents were rare. A
penalty of up to 3 months SI with fine could be imposed on the parents or guardian for
solemnizing or negligently preventing the marriage. It is interesting to note that under the
relevant section no woman can be prosecuted. A adult who committed, orchestrated or
ordered any child marriage to be solemnized may be subject to similar discipline.

Two unusual provisions are imposed by the Act – first – the restricted cognizable
existence of the offences. The offences are identifiable for investigative purposes, but
without a warrant the police officers could not make the arrest. Secondly, the court could
not take cognizance of any offence under the Act, after expiry of one year from the date

5 Id., s.1. Initially the Bill was meant for Hindus only but the Select Committee, which reviewed the Bill,
recommended its application to all communities.
6 Id., s.1. Initially the Bill was meant for Hindus only but the Select Committee, which reviewed the Bill,
recommended its application to all communities.
of its commission. Under the Act, the court was empowered to issue injunctions against
the persons involved in child marriage solemnization. This court's authority was fettered
as a warning was to be issued to the person concerned prior to the issuance of such an
injunction and an opportunity to show cause against the injunction was to be given to
him. The disobeyance of such injunction could entail the maximum of imprisonment of
three months SI with fine to men only as no woman could be punished under the section.
The Act, while penalized, could not affect the validity of child marriage and the laws
were written in such a way that due to the socio-cultural structure of Indian society, real
and successful enforcement of the Act was made extremely difficult. Too many
bureaucratic lacunae occurred, e.g. no cognizable crime after the expiry of 1 year from
the date of execution of offence, limited cognizable existence of offences that gave the
culprits time to stop solemnizing marriage well in time to escape prosecution and no
penalty for women etc.

The Hindu Marriage Act, 1955 (HMA)

The Act is India's biggest marriage law as it applies to most Hindus men. The Act lays
out certain requirements for Hindus to solemnize legal marriages. The clause (iii) of
section 5 requires that the bridegroom should have completed 21 years of age and the
bride, the age of 18 years at the time of marriage. Initially the ages prescribed for the
bride and the groom were 15 years and 18 years respectively. Until 1978, marriage below
the legal age could be solemnized with the guardian's consent.

With the Amendment Act, this clause was infructuous as marriage age was increased and
there is no need for guardianship in the case of a person under 18. Therefore, the reform
act deleted the provision. Apart from a valid marriage – solemnized in accordance with
all the requirements set out in section 5 of the HMA, the Act provides for void marriage
(void ab initio) and voidable marriage (which can be declared null and void in the case of
the aggrieved party). A marriage solemnized in violation of section 5 is either null or
voidable based on the breach of section 5 particular clauses.

The Prohibition of Child Marriage Act, 2006 (PCMA)

In the midst of the quiet confusions of the 1955 Hindu Marriage Act and the toothless
clauses of the 1929 Child Marriage Restraint Act, the Indian society was experiencing an
increasing demand to make the law on child marriage more effective with severe
punishments in order to abolish or effectively prevent the evil custom of child marriage.
Amid the actions of the National Commission for Women, the National Commission on
Human Rights conducted a comprehensive review of the 1929 Act and proposed
extensive modifications. Upon consulting the state governments and the UTs on the
advice of NCW and NHRC, the central government decided to accept and give effect to
all suggestions by repealing and re-enacting the Child Marriage Restraint Act, 1929.
Accordingly, on January 10, 2007, the Prohibition of Child Marriage Act, 200661 came
into force. Although the 2006 Act gives a three pronged formula regarding the validity of
child marriage, the legislative confusion regarding the validity of child marriage is
manifested in other legislations as well as the judicial decisions.
 ISSUES OF VALIDITY OF CHILD MARRIAGE

It is known that the legislature acknowledges the legitimacy of child marriage as well as
the judiciary.

Legislative acceptance
It is distressing to note that while, on the other hand, the law provides for criminal
consequences for the solemnization of child marriage, on the other hand, a variety of
statutory acts include clauses that effectively accept or support the definition of child
marriage's legitimacy. The following are a few glimpses of such clauses. The Hindu
Marriage Act, 1995, includes a provision involving a different divorce floor for a woman
who gets married before she reaches the age of 15 and repudiates marriage between the
ages of 15-18. Whether or not the marriage is consummated is immaterial. The presence
of such a divorce clause is obviously indicative of the fact that in such a situation,
politicians have explicitly acknowledged the legitimacy of child marriage because only
then could they have envisaged divorce. It should be remembered that if the child bride
does not practice the right of puberty until she turns 18, her marriage may be legitimate.
It remains a controversial question whether the child bride may exercise the right to
repudiate marriage at all, since it is almost difficult for her to exercise her preference in a
socio-cultural environment that does not even understand the need for her marriage
consent.

In this case, another constitutional ambiguity is created by the application of section 9 of

the HMA. The child bride's situation is further compounded by the fact that, in the event
of her exclusion from the marriage relationship, her husband was constitutionally entitled
to claim restoration of marital rights against her and there would be no justification for
her being a minor at the time of the marriage ceremony.

The preamble to the Indian Majority Act, 1875, was intended to achieve uniformity and
clarity over the age of majority. The Act lays down 18 years as the age of majority, but
the non-obstante provision 75, which excludes other things from the applicability of the
 Act, paves the way for many ambiguities. The clause excludes from the application of the
Act matters of great importance in the life of an individual such as marriage, birth,
divorce and dower, and therefore the age of majority of an individual in these matters is
regulated by the personal law to which he is a party.

The judicial response

The judicial decisions often keep alive the spirit of the constitutional rule of keeping the
legitimacy of child marriage unchanged. The judiciary has overwhelmingly put its seal of
approval on the legality of child marriage, with the exception of a few extraordinary
rulings. Earlier in 1891, in Venkatacharyulu v. Rangacharyulu, the Madras High Court
affirmed the legality of child marriage:7
There can be no doubt that a Hindu marriage is a religious ceremony. According
to all the texts, it is a samskaram or sacrament, the only one prescribed for a
woman and one of the principal religious ties prescribed for the purification of the
soul. It is binding for life because the marriage rite completed by saptapadi ….
creates a religious tie when once created, cannot be untied. It is not a mere
contract in which a consenting mind is indispensible. The person married may be
minor or even of unsound mind and yet if the marriage rite is duly solemnized,
there is a valid marriage.

The position was further explained by the court in Sivanandy v. Bhagwathyamm8, where
it was pointed out that a child marriage although forbidden by CMRA is not rendered
invalid by any clause therein and the contravention of the provisions of the Act does not
make the marriage invalid as the validity of the marriage is a matter beyond the scope of
the Act. In that case it was observed:9

A marriage under the Hindu Law by a minor male is valid even though the
marriage was not brought about on his behalf by his natural or lawful guardian.
The marriage under Hindu Law is a sacrament and not a contract. The minority of

7 Id. at 318
8 AIR 1962 Mad. 400
9 Ibid
 an individual may operate as a bar to his or her incurring contractual obligations.
But it cannot be impediment in the matter of performing a necessary ‘samskars’.
A minor’s marriage without the consent of the guardian can be held to be valid
also on the application of the doctrine of factum valet.

The doctrine of factum valet is quite well known and is duly acknowledged
by the Hindu text writers. The relevant Sanskrit quotation is:
…. a fact cannot be altered by a hundred texts. The doctrine in the case of a
minor was the factum of marriage, which was solemnized, could not be
undone by reason of a large number of legal prohibitions to the contrary

The preamble to the Indian Majority Act, 1875, was intended to achieve uniformity and
clarity over the age of majority. The Act lays down 18 years as the age of majority, but
the non-obstante provision, which excludes other things from the applicability of the Act,
paves the way for many ambiguities. The clause protects subjects of great importance in
an individual's life, such as marriage, birth, divorce and gate, from the application of the
Act and hence the maturity age of an individual in these matters is regulated by the
personal law to which he is subject.

In Naumi v. Narottam10, Himachal Pradesh's High Court ruled that child marriage was
legitimate because it was neither null nor invalid. In MohinderKaur v. Major Singh11,
which upholds the legitimacy of child marriage according to the same reasoning, the
P&H High Court noted that the solemnization of child marriage is no defense against the
argument to restitution of marriage rights. In Budhan v. Mamraj12 however, the court
favored the diametrically opposite approach and observed, when considering the issue of
restitution of marriage rights, that a marriage may not be legal if it is conducted in
contravention of age requirement, however invalidity can not be pleaded as a response to

10 AIR 1963 HP 15
11 Supra note75
12 1970 PLR 102
a request for restitution of marriage rights. Such a judicial interpretation contrasted
sharply with the earlier pattern of the judiciary and the society's general mass sentiment.
 CONCLUSION AND SUGGESTIONS

Child marriage is a serious social sin that abuses the girl child's reproductive rights that
make up the girl's biggest chunk of human rights. Early marriage and late motherhood
threaten the girl's right to control her own body and limit her academic and employment
opportunities apart from causing her and her offspring a lot of trouble. Thus, the human
rights of the girl child are violated at that stage of her life when they need to be protected
the most. Child marriage creates a complex legal anomaly that despite there being penal
sanctions for the commission of offence, the marriage so solemnized retains the validity
in the eyes of law. On the one hand, statutory laws were enforced to counter this danger,
while on the other hand, legislative and judicial actions accept and support the reality of
child marriage's legitimacy. But child marriage continues to be a criminal offense–a
practice that is both illegal and punishable, but still valid.

The vast prevalence of child marriage practice has a complicated nexus with women's
low status in permissive Indian society, which tolerates and encourages discriminatory
practices that violate women's human rights. Over a century, social and political
movements have made a number of reformist efforts to raise the minimum age for
marriage. Ironically, the initial focus on girls ' education and status has shifted over time
to secondary issues, which are immediate horrors, such as the country's population
growth. Favoring a later marriage age does not necessarily mean leading to improving
women's social status. Unless the precursor of a social evil is removed, its synthesis
cannot be stopped. For the abolition of child marriage, apart from the legislative changes,
attitudinal reforms are needed and a healthy social environment is necessary where the
reproductive rights of women are respected and not violated.
 BIBLIOGRAPHY

● Laws On Child Marriage In India, blog.ipleaders.in (Jan 21, 2016)

https://blog.ipleaders.in/laws-child-marriage-india/

● Agarwal, R K, HINDU LAW, 25th edition, Central Law Agency

● Dr. Vandana, Child Marriage under Personal Law, vol 1, summer issue 2017
http://ili.ac.in/pdf/paper1117.pdf

● Vageshwari Deswal, Legal Status of Child Marriages in India, Times of India

(Jan 24, 2019), https://timesofindia.indiatimes.com/blogs/legally-speaking/legal-
status-of-child-marriages-in-india/

● Mohamed Imranullah S, Child marriages do not become void sans court order,
The Hindu (Mar 5, 2016) https://www.thehindu.com/news/cities/Madurai/child-
marriages-do-not-become-void-sans-court-order/article8316750.ece

● Ananye Krishna, A legal failing: Why child marriage persits in India,

Southasia@LSE https://blogs.lse.ac.uk/southasia/2019/01/10/a-legal-failing-why-
child-marriage-persists-in-india/