childmarriage-170727104612 (1).pdf

by
Maj Gen Nilendra Kumar
An effort for
Bachpan Bachao Andolan
and
Lex Consilium Foundation

“While the husband is still declared by the statute to be the head of the
family , he like the king of England is largely a figure head.”
-Reginald L Hine ,
American Jurist

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.

According to UNICEF, child marriage is a formal or
informal union before the age of 18.

Worldwide , more than 700 million women alive in
2014 were married before their 18th birthday.
Child marriage among girls is most common in South
Asia and Sub-Saharan Africa.
One third of the girls in developing countries are
married before the age of 18, while about one in nine
are married before attaining age 15.

FRAGILE STATES
Eight out of ten countries with the highest child marriage rates are
considered fragile states.
1. Nigeria
2. Central African Republic
3. Chad
4. Bangladesh
5. Mali
6. South Sudan
7. Guinea
8. Malawi

A. South Asia is home to almost half (42%) of all child brides
worldwide.
B. India accounts for one third of the global total. Bangladesh
has the highest rate of marriage involving girls under age 15.

A. India has the highest percentage of child brides in the
world. About 47% of the girls get married before
reaching the age of 18.
B. 2011 Census data showed that 91% of all women were
married by 25 years of age with an alarming rate of
30.2% girls who were married before the age of 18.

 An International treaty adopted by United Nations General Assembly in 1979.
 It is described as an International bill of Rights for Women.
 It has 30 articles divided into 6 parts.
 Part IV (Articles 15 and 16) outline women’s rights to equality in marriage
and family life along with the right to equality before law.

 CEDAW was instituted on 3rd September, 1981 and has
been ratified by 189 states.
 Over 50 countries have ratified but with certain
reservations, declarations and objections. US and Palau
have signed the treaty but not ratified it.

1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity
identical to that of men and the same opportunities to exercise that
capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall treat them equally in all
stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments of
any kind with a legal effect which is directed at restricting the legal
capacity of women shall be deemed null and void.
4. States Parties shall accord to men and women the same rights with regard
to the law relating to the movement of persons and the freedom to choose
their residence and domicile.

The betrothal and the marriage of a child shall have no legal effect and all
necessary action including legislation shall be taken to specify a minimum
age for marriage and to make the registration of marriage in an official
registry compulsory.

‘Child Marriage’
Section 2
Means a marriage to which either of the contracting
parties is a child.

A. Hindu : 16.7
B. Muslim : 16.7
C. Sikh : 19.9
D. Christian : 20.6
E. Parsi : 20.8

 The Amount paid by the groom to the parents of a bride for them to
consent to him marrying their daughter. In some countries, the
younger the bride, the higher the price she may fetch.
 The practice creates an economic incentive whose girls are sought and
married early by the family to the highest bidder. The girl’s side further
harbours an apprehension that if the alliance is delayed the girl, may
not find any takers.

 Poverty and marriage expenses including dowry often lead families to
marry off their daughters as an early age to reduce these costs.
 Girls are often married to considerably older men.
 Girls are seen as a burden on their family.
 Marrying a daughter at a young age is viewed as a means to ease
economic hardship by transferring this burden.
 Giving a daughter in marriage early allows parents to reduce family
expenses by ensuring they have one less person to feed, clothe and
educate.

1. Poverty
2. Economic survival strategies
3. Gender Inequality
4. Sealing (confirming) land or property deals
5. Settling disputes
6. Control over sexuality and family honour
7. Tradition and culture
8. Insecurity, especially during wars, droughts, famines or epidemics

A. The couple are prevented from making important life decisions like :
I. Basic freedom
II. Opportunities for education
III. Sustainable lively hood
IV. Accessing sexual health and rights

EDUCATION : The young bride is only able to study as much as her
husband has. They often lack familial support to continue their
education.

HEALTH
1. Forced sexual encounters lead to irreversible physical damage.
2. The girls are three times more likely to experience marital rape.
3. Girls below 15 are five times more likely to die during child birth than those in
the 20’s.
4. The infant mortality rate is very high.
5. Young brides face a higher risk of contracting HIV and STD.
6. Some of the young brides are sexually exploited by other men in the family and
they are too scared to go out and complain.
7. The inability of a woman to negotiate contraception use is a major issue.

 A key impact of child marriage is a woman’s ability to earn a living
diminishes. This is so as they have to establish their fertility and
credibility in their marital home.
 Reasons why child marriage take place
1. Poverty
2. Lack of Education
3. Cultural Practice
4. Insecurity of parents

 Issues of consent
 Age at marriage
 Legal issues

“Consent makes marriage”.
Latin Legal Phrase
Lack of Consent
Women continue to be married without consent , often girls
are forced into sexual and domestic servitude.

 The Convention reaffirms the consensual nature of marriages and requires the
parties to establish a minimum marriage age by law and to ensure the
registration of marriages.
 The convention has to be signed by 16 countries and there are 55 parties to the
convention.
 ARTICLE 1
No marriage shall be legally entered into without the full and free consent of
both the parties, such consent to be expressed by them in person after the
publicity and in the presence of the authority competent to solemnize the
marriage and of witnesses , as prescribed by the law.

 A marriage where one or both of the parties cannot
give free or valid consent to the marriage. It involves
varying degree of force , coercion or deception ,
ranging from emotional pressure by family or
community members to abduction and imprisonment .
 Forced marriage constitutes a human rights violation in
and of itself.

A marriage planned and agreed by the families or guardians of
the couple concerned.
It is a type of marital union where the bride and groom are
selected by the families.

I. Right to express their views freely
II. Right to protection from abuse
III. Right to be protected from harmful traditional
practices

I. The object of the Act is to prohibit solemnization
of child marriage connected and incidental
matters.
II. This Act is aimed with enabling provisions to
prohibit child marriage, protect and provide
relief to victim and enhance punishment for
those who abet , promote or solemnize such
marriage.

 CHILD
A child is a person who has not completed 21 years in case of male and 18 years
in case of females.
 CHILD MARRIAGE
A marriage to which either party is a child.

MEANING
 Section 12 : Not a valid or legally binding.
 Section 3(1): Capable of being made void. A thing can
become void but is not necessarily so.

A. Every child marriage is voidable at the option of the contracting party
who was child at the time of solemnization of marriage.
B. A degree of nullity can be obtained by such person by filing petition
before the District Court for annulment of marriage within two years
after attaining majority.
C. While granting a decree ,the District Court shall make an order
directing both parties and their parents or guardians to return to the
other party money , gold , ornaments ,gifts and other valuables.

 Section 14: Means to be treated as invalid from
the outset.
NULL AND VOID
 Section 12 : Means canceled , invalid. This
phrase is actually redundant , since null means
void.

It is a judicial order determining in effect that the
marriage in question never existed .It declares that
the marriage is and has always been null and void.

A. Punishment for male adult marrying a child. Marriage between a
child and a male adult above eighteen years of age.
B. Attracts punishment of up to two years RI or fine up to rupees
one lakh or both.
COMMENTS
Definition of a child under Sec 2(a) is for a male up to 21 years of age. Then it
may be argued how is it that Section 9 views a male from 18 to 21 as an adult.

 Section 9 : Male adult marrying a child .Two years
RI or fine up to one lakh rupees or both.
 Section 10 : For performing , conducting or
directing or abetting any child marriage , unless he
proves that he had reasons to believe it was not a
child marriage. Two years RI or fine up to one lakh
rupees or both.

 Section 11 : For promoting , permitting or
negligently failing to prevent it including attending
or participating in it . Punishment same as in section
10. Provided that no woman shall be punishable
with imprisonment.
 Section 13 (10) : Knowingly disregards an injunction
prohibiting child marriage. Punishment same as in
section 10. Provided that no imprisonment to a
woman.

Offenders under section 10 and/or 11 could include;
 The guardians/parents of both the parties
 Priests, relatives and friends of both parties
 Neighbours of both parties
 Community leaders who give patronage to such marriages
 Marriage bureaus/persons responsible for fixing such marriages
 Traffickers
 The bridegroom, if over 18
 Caterers and other service providers

 BEFORE
 Taken or enticed from the
lawful guardian.
 Compelled by force or by
deceitful means induced to
go from any place.
 AFTER
 Sold , trafficked or used
for immoral purposes.
MARRIAGE

Law is silent as to :
a) Who has to seek remedy?
b) How?
c) Who (which court) will decide
d) What punishment would the conviction attract ?
The text is merely declaratory. The procedural details for compliance
are not shown.

 A woman convicted for penal provisions under
Section 11 and 13 (10) cannot be awarded
imprisonment.
 However such a restriction is not in place for
section 10 for no apparent logic , More so because
offences are cognizable and non-bailable.

A court having jurisdiction over matters involving divorce,
child custody and support, paternity, domestic violence
and other family-law issues.

Established to promote conciliation in and secure speedy
settlement of disputes relating to marriage ,family affairs
and for matters connected therewith.

PAKISTAN
Child Marriage Restraint Act , 1929
Legal age for marriage is 16 for women and 18 for men.
Penal Code has been amended to toughen punishment against
child marriage. Offenders face a minimum five years prison
term which could go up to ten years. Also a fine of up to Rupees
10 lakhs.

 According to UNICEF data, 3 % of all girls were married
before age 15, while 21% were married before 18.
 Child marriage is rooted in tradition and culture .It involves
the transfer of money, settlement of debts or exchange of
daughters sanctioned by a JIRGA or Panchayat.

 The Council of Islamic ideology is a constitutional body
set up to give Islamic legal advice to the government.
According to it, Pakistani laws prohibiting child
marriage are un-Islamic.

1. Brazil has highest absolute number of child brides in the Latin
American region. It has 4th highest absolute number of child
brides worldwide.
2. According to UNICEF 11% of all girls marry before attaining
the age of 15 , while 36% marry by age of 18.
3. The legal age of marriage for both men and woman in Brazil is
18. Marriage is allowed at age 16 with the consent of parents
of both parties.

1. Approximately every third girl is married before
the age of 18.
2. 7% of child marriages take place between children
below the age of 15.
3. According to law , a girl can be married once she
hits puberty.
4. A ten year old can also be married by the
guardian with the permission of a judge.

The marriage of Non-Muslims Act of 1926 sets
the age of marriage at 13 for Non-Muslims girls
and 15 for Non-Muslims boys.

 Child marriage among Syrian refugees in Jordan has
more than doubled since the start of the conflict, leaving
girls vulnerable to health problems, domestic abuse and
poverty.
 Jordan is home to more than 6,00,000 registered Syrian
refugees.

Arranged marriages, sometimes called blind marriages
were the norm before the mid 20th century.

 The age of marriage is 18 with two exceptions – Nebraska
(19) & Mississippi (21).
 However most states have exceptions allowing marriage at
younger age with parental consent , judicial approval in
cases of pregnancy or in a combination of these situations.

“A Roman divorced from his wife was being highly blamed by
his friend, who demanded ‘Was she not chaste? Was she not
fair? Was she not fruitful?’
Holding out his shoe, the man asked them whether it was not
new and well made. “Yet” added he, “none of you can tell
where it pinches me.”
-PLUTARCH

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