Khadija HetavkarContent Writer (Legal), Rightantra Cheshta TaterCo-Founder, Rightantra While discussing the recent news of uniform marriage age with my team, a repeated argument from those who don’t favour the move was—cases of child marriage would increase. To understand this argument, it’s crucial to understand the various facets of child marriage and the laws on it, in India. In this article, we will break down these laws and explain them from square one. What is Child Marriage? According to the Prohibition of Child Marriage Act (“PCMA”), “child marriage” means a marriage to which either of the contracting parties is a child. Child Marriage is established as a cognizable and non-bailable offence under PCMA. This law seeks to prevent the solemnization of child marriages. Under this Act, the marriageable age for a female is 18 years and for a male, it is 21 years. The provisions of this law range from providing maintenance for the girl, allowing anyone who was a child at the time of getting married to legally undo it, to making provisions for custody and maintenance of children born out of child marriages. The Special Marriage Act (a secular piece of legislation governing marriages) states that a marriage between any two persons can be solemnized under this Act only if at the time of marriage, the male has completed the age of twenty-one years and the female, the age of eighteen years. Despite the implementation of PCMA, religion-based personal laws of certain communities still allow child marriages and have their own established standards and procedures concerning solemnization and dissolution. Void versus Voidable
While the act of child marriage is explicitly punished under the PCMA, the marriage in itself is not invalid or void but is “voidable”. In simpler terms, the child/children getting married have the final say about the continuity of the concerned marriage. If they wish for the marriage to be declared null and void, they can obtain a decree of nullity. However, they can also choose to continue the marriage. Therefore, child marriages are voidable at the option of the minor contracting party(ies), irrespective of the personal laws. The question which arises here is—if the marriage is not void, what purpose does the Act serve? Does it even sufficiently discourage child marriage? The PCMA does strongly discourage child marriage in the following way:
Further, child marriages in certain circumstances are ABSOLUTELY VOID. This includes instances where a child is forcibly or deceitfully taken out of the custody of their legal guardian for such marriage. Further, no child can be sold for the purposes of marriage. Such activity would amount to trafficking and render the “marriage” void. Uniform Marriage Age It is now time to address the elephant in the room. A “uniform marriage age” would mean that the minimum age criteria for men and women, of all religions, would be set at 21 years. Dreamy, right? So, what’s the catch 22 or must I say—catch 21? A uniform marriage age would be the minimum age for getting married “without the consent of legal guardians”, which means that personal laws which allow for a person to get married at a lower age with parental consent would still very much be in place [Muslim girls can be married off after puberty or once 15, whichever earlier, and Christian girls can be married off at 14]. While the initiative by the Government to ensure that girls do not get married off at an awfully early age in life is appreciated, the solution does not rest in simply increasing the minimum age, especially considering that it comes without changes in other laws. Presently, even if the minimum age for marriage is raised to 21 years, personal laws would still permit marriage below the set age, including child marriage. It is important to understand that marriages are more social in nature than legal, and mere changes in secular laws will not change the mentality of the society. At Rightantra, we firmly believe in gender equality, even more so in marriage, but to ensure that fewer girls suffer the brunt of a drastic legislative motive, it is crucial for this move to be only a part of the bigger picture. Just as Karnataka recently has, even the Centre should declare child marriages to be void ab initio in all cases. To complement this move, stricter punishments should be imposed and the executive branch of the government must be thoroughly trained. Here’s hoping for a future where consent is respected by all, for all. References:
Please note that this is NOT legal or professional advice but the legal and professional opinion of the author and is for informational purposes only. Neither the author nor Rightantra shall bear any responsibility for the accuracy, content, or consequences. The reader must perform their independent due diligence.
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