October 2, 2022

Burden of Young Mothers- The evil of child marriage and loopholes in law

The word Child Marriage is itself contradictory in itself as one would wonder how marriage and child could go together.

Child marriage is a major evil in Indian society. Even though, people aware that child marriages are illegal under law, still, child marriages happen without any major prevention. Sociologists argue that for variety of reasons, child marriages are prevalent in many parts of this country and the reality is more complex than what it seems to be.

NGOs as well as the Government agencies have been working for decades to root out this evil. Yet, the reality is that the evil continues to survive. Again, sociologists attribute these phenomenon of child marriage to a variety of reasons. The foremost amongst these reasons are poverty, culture, tradition and values based on patriarchal norms. Other reasons are: low-level of education of girls, lower status given to the girls and considering them as financial burden and social customs and traditions. In many cases, the mixture of these causes results in the imprisonment of children in marriage without their consent.

Law to curb the evil

To prevent child marriages, ‘Child marriage restrain act, 1929’ was enacted, but it did not declare child marriages void or voidable, so, a law was needed which give the right to child marriage victim to apply in court for declaring their marriages void. Therefore, ‘Prohibition of child marriage act, 2006’ was enacted.

The purpose and rationale behind the Prohibition of Child Marriage Act, 2006 is that there should not be a marriage of a child at a tender age as he/she is neither psychologically nor physically fit to get married. There could be various psychological and other implications of such marriage, particularly if the child happens to be a girl.

Ill-effects of child marriages

In actuality, child marriage is a violation of human rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty. Young married girls are a unique, though often invisible, group. Required to perform heavy amounts of domestic work, under pressure to demonstrate fertility, and responsible for raising children while still children themselves, married girls and child mothers face constrained decision making and reduced life choices.

Boys are also affected by child marriage but the issue impacts girls in far larger numbers and with more intensity. Where a girl lives with a man and takes on the role of caregiver for him, the assumption is often that she has become an adult woman, even if she has not yet reached the age of 18. Some of the ill-effects of child marriage can be summarized as under:

(i) Girls who get married at an early age are often more susceptible to the health risks associated with early sexual initiation and childbearing, including HIV and obstetric fistula.

(ii) Young girls who lack status, power and maturity are often subjected to domestic violence, sexual abuse and social isolation.

(iii) Early marriage almost always deprives girls of their education or meaningful work, which contributes to persistent poverty.

(iv) Child Marriage perpetuates an unrelenting cycle of gender inequality, sickness and poverty.

(v) Getting the girls married at an early age when they are not physically mature, leads to highest rates of maternal and child mortality.

Child marriages result in physical decay

Young mothers face higher risks during pregnancies including complications such as heavy bleeding, fistula, infection, anemia, and eclampsia which contribute to higher mortality rates of both mother and child. At a young age a girl has not developed fully and her body may strain under the effort of child birth, which can result in obstructed labour and obstetric fistula.

Obstetric fistula can also be caused by the early sexual relations associated with child marriage, which take place sometimes even before menarche. Child marriage also has considerable implications for the social development of child bridges, in terms of low levels of education, poor health and lack of agency and personal autonomy.

The Forum on Marriage and the Rights of Women and Girls explains that where these elements are linked with gender inequities and biases for the majority of young girls… their socialization which grooms them to be mothers and submissive wives, limits their development to only reproductive roles.

A lack of education also means that young brides often lack knowledge about sexual relations, their bodies and reproduction, exacerbated by the cultural silence surrounding these subjects. This denies the girl the ability to make informed decisions about sexual relations, planning a family, and her health, yet another example of their lives in which they have no control.

Psychological Decay

Women who marry early are more likely to suffer abuse and violence, with inevitable psychological as well as physical consequences. Studies indicate that women who marry at young ages are more likely to believe that it is sometimes acceptable for a husband to beat his wife, and are therefore more likely to experience domestic violence themselves. Violent behaviour can take the form of physical harm, physical harm, psychological attacks, threatening behaviour and forced sexual acts including rape.

Abuse is sometimes perpetrated by the husband’s family as well as the husband himself, and girls that enter families as a bride often become domestic slaves for the in-laws. Early marriage has also been linked to wife abandonment and increased levels of divorce or separation and child brides also face the risk of being widowed by their husbands who are often considerably older. In these instances, the wife is likely to suffer additional discrimination as in many cultures divorced, abandoned or widowed women suffer a loss of status, and may be ostracized by society and denied property rights.

Thus, child marriage is such a social evil which has the potentialities of dangers to the life and health of a female child and plays havoc in their lives, who cannot withstand the stress and strains of married life and it leads to early deaths of such minor mothers. It also reflects the chauvinistic attribute of the Indian society.

The word Child Marriage is itself contradictory in itself as one would wonder how marriage and child could go together.

When we look into the matter, keeping in view the aforesaid disastrous consequences of the child marriage, which is even treated as violation of human rights, including right to lead a life of freedom and dignity, the very first thing which comes in mind is that the menace of child marriage needs to be curbed. Even the legislative thinking is in the same direction. However, as would be seen hereafter, the legislature has still not made adequate and effective provisions in the laws to make such a marriage as void.

Sarda act

Child marriage existed historically in India and over a period of time it was perceived to be a wrongful practice. The legislature stepped in more than 80 years ago when the CMRA (popularly known as the Sarda Act) was enacted with the objective of eliminating the practice of child marriage. It forbade the marriage of a male with less than 21 years and female with less than 18 years of age.

However, the penal provisions of the Sarda Act did not invalidate the effect of marriage. It laid down punishment for male adult below twenty-one years of age and for male adult above twenty one years of age who contracted a child marriage and also for the person, who performed, conducted or directed a child marriage. Some amendments were carried out in this Act but it was felt that it was not serving any purpose.

Prohibition of Child Marriage Act

It is for this reason that in 2006, the Prohibition of Child Marriage Act was passed by the Parliament. The Statement of Objects and Reasons of the PCM Act, 2006 have been quoted above. The salient features of the Bill, which culminated in the enactment of the PCM Act, 2006 are as follows:-

“(i) To make a provision to declare child marriage as voidable at the option of the contracting party to the marriage, who was a child.

(ii) To provide a provision requiring the husband or, if he is a minor at the material time, his guardian to pay maintenance to the minor girl until her remarriage.

(iii) To make a provision for the custody and maintenance of children born of child marriages.

(iv) To provide that notwithstanding a child marriage has been annulled by a decree of nullity under the proposed section 3, every child born of such marriage, whether before or after the commencement of the proposed legislation, shall be legitimate for all purposes.

(v) To empower the district Court to add to, modify or revoke any order relating to maintenance of the female petitioner and her residence and custody or maintenance of children, etc.

(vi) To make a provision for declaring the child marriage as void in certain circumstances.

(vii) To empower the Courts to issue injunction prohibiting solemnsation of marriages in contravention of the provisions of the proposed legislation.

(viii)To make the offences under the proposed legislation to be cognizable for the purposes of investigation and for other purposes.

(ix) To provide for appointment of Child Marriage Prevention Officers by the State Governments.

(x) To empower the State Governments to make rules for effective administration of the legislation.”

Marital rap to child bride

It is distressing to note that the Indian Penal Code, 1860 acquiesces child marriage. The exception to Section 375 specifically lays down that sexual intercourse of man with his own wife, the wife not being under fifteen years of age is not rape, thus ruling out the possibility of marital rape when the age of wife is above fifteen years. On the other hand, if the girl is not the wife of the man, but is below sixteen, then the sexual intercourse even with the consent of the girl amounts to rape?

It is rather shocking to note the specific relaxation is given to a husband who rapes his wife, when she happens to be between 15-16 years. This provision in the Indian Penal Code, 1860 is a specific illustration of legislative endorsement and sanction to child marriages. Thus by keeping a lower age of consent for marital intercourse, it seems that the legislature has legitimized the concept of child marriage.

Silent supporters of child marriages

The Indian Majority Act, 1875 lays down eighteen years as the age of majority but the non obstante clause (notwithstanding anything contrary) excludes marriage, divorce, dower and adoption from the operation of the Act with the result that the age of majority of an individual in these matters is governed by the personal law to which he is a subject. This saving clause silently approves of the child marriage which is in accordance with the personal law and customs of the religion.

It is to be specifically noted that the other legislations like the Indian Penal Code and Indian Majority Act are pre independence legislations whereas the Hindu Minority and Guardianship Act is one enacted in the post independent era. Another post independent social welfare legislation, the Dowry Prohibition Act, 1961 also contains provisions which give implied validity to minor’s marriages. The words ‘when the woman was minor’ used in section 6(1)(c) reflects the implied legislative acceptance of the child marriage. Criminal Procedure Code, 1973 also contains a provision which incorporates the legislative endorsement of Child Marriage. The Code makes it obligatory for the father of the minor married female child to provide maintenance to her in case her husband lacks sufficient means to maintain her.

The insertion of option of dissolution of marriage by a female under Section 13(2)(iv) to the Hindu Marriage Act through an amendment in 1976 indicates the silent acceptance of child marriages. The option of puberty provides a special ground for divorce for a girl who gets married before attaining fifteen years of age and who repudiates the marriage between 15- 18 years.

Legislative endorsement and acceptance which confers validity to minor’s marriage in other statutes definitely destroys the very purpose and object of the PCM Act-to restrain and to prevent the solemnization of Child Marriage. These provisions containing legal validity provide an assurance to the parents and guardians that the legal rights of the married minors are secured. The acceptance and acknowledgement of such legal rights itself and providing a validity of Child Marriage defeats the legislative intention to curb the social evil of Child Marriage.

Thus, even after the passing of the new Act i.e. the Prohibition of Child Marriage Act 2006, certain loopholes still remain, the legislations are weak as they do not actually prohibit child marriage. It can be said that though the practice of child marriage has been discouraged by the legislations but it has not been completely banned.

Reference

  1. Association for Social Justice & Research v. Union of India & others, 2010
  2. Court On Its Own Motion (Lajja … vs State 2012