Child Marriage Restraint Act, 1929
To trace the history of the child marriages, we have to state that until the introduction of the “Child Marriage Restraint Act, 1929” child marriages were prevalent in India in abundance and there was no mechanism even to discourage the same. Such marriages were all recognized as valid. But, the ill-effects of the child marriage were taken note of even during the colonial period which prompted the law being brought into force to restrain the child marriages by enacting the “Child Marriage Restraint Act, 1929”.
A reference to the said Act would go to show that the said Act, was enacted to carry forward the reformists movement of prohibiting child marriages. While it made a marriage in contravention of the provisions of the Act punishable, simultaneously it did not render the marriage void. It needs to be emphasized that voidness of marriages is statutorily provided and the same is not to be readily inferred. Thus even after the advent of the Child Marriage Restraint Act such marriages were recognized as valid marriages.
Hindu Marriage Act, 1955
Subsequently, the Hindu Marriage Act, 1955 came into being with effect from 18.05.1955. Section 4 of the said Act states that save as otherwise expressly provided in this Act, any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
But, no inconsistency could be noticed between the provisions of the Hindu Marriage Act, 1955 and that of the Child Marriage Restraint Act, 1929. Both the Acts coexist.
Section 5 of Hindu Marriage Act, 1955
Section 5 of the Hindu Marriage Act, as it was originally brought into force, contained six clauses as follows: –
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of [twenty-one years] and the bride the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
(vi) Where the bride has not completed the age of eighteen years, the consent of the guardian in the marriage if any has been obtained for the marriage. [The sub clause (vi) was repealed by the Child Marriage Restraint Act, 1978 w.e.f. 01.10.1978]
Effect of section 5
The effect of violation of the conditions enumerated in Section 5 of the Hindu Marriage Act are dealt with in Sections 11 and 12 of the Act.
According to Section 11, any marriage solemnized after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto, against the other party, be so declared by a decree of nullity if it contravenes any one or more of the conditions specified in clauses (i) (spouse living), (iv) (prohibited relationship) and (v) (sapindas relationship) of section 5.
Similarly, Section 12 of the Hindu Marriage Act speaks of a voidable marriage which reads as follows:-
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii)(insanity and unsoundness of mind) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978] the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage,
(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if
(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied,
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (
ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of [the said ground]”
Conclusion of both sections
A close reading of these two provisions would go to show that a marriage solemnized in violation of sub section (iii) (age of parties) of Section 5 of the Hindu Marriage Act has not been declared either as void or voidable. The marriage which falls within the ambit of Section 11 has been held to be void from its very inception [vide Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, A.I.R. 1988 S.C. 644].
So far as a voidable marriage as provided in Section 12 of the Act is concerned, the said marriage may be annulled by a decree of nullity on any one or more of the grounds enumerated thereunder. Since the Hindu Marriage Act as well as the Child Marriage Restraint Act do not declare a marriage of a minor either as void or voidable, such a child marriage was treated all along as valid.
There were number of judicial pronouncements to this effect. In this legal scenario, The Hindu Minority and Guardianship Act also provided that the husband of a minor wife is her natural guardian.
The effect of Child marriage restraint act, 1929
While so, it was felt that the Child Marriage Restraint Act, did not achieve the desired result. Despite the punishment provided for child marriages, and despite making the punishment more stringent, the menace of child marriage could not be completely eradicated. There were demands from various quarters for making an effective law for this purpose.
Child marriage prohibition act, 2006
The Law Commission also recommended for such a law. Responding to the same, at last, with effect from 10.01.2007, “The Prohibition of Child Marriage Act, 2006” was brought into force thereby repealing The Child Marriage Restraint Act, 1929.
As envisaged in Section 1 of the said Act, it extends to the whole of India; and it applies also to all citizens of India. It is manifestly clear that this Act is secular in nature which has crossed all barriers of personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are prohibited.
T.Sivakumar vs The Inspector Of Police, 2011