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”.
While it made a marriage in contravention of the provisions of the Act punishable, simultaneously it did not render the marriage void. Thus even after the advent of the Child Marriage Restraint Act such marriages were recognized as valid marriages.
History of Child Marriage Prohibition Act, 2006
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.
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.
Child Marriage Definition under Act
The term “child” has been defined in Section 2 (a) of the said Act which states that “child” 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.
Decree of nullity
One of the important and salient features of the Prohibition of Child Marriage Act, 2006 is that Section 3 of the Act declares that every child marriage, whether solemnized before or after the commencement of the said Act shall be voidable at the option of the contracting party who was a child at the time of the marriage;
provided that petition for annulling the child marriage by a decree of nullity may be filed in the District Court only by the contracting party to the marriage who was a child at the time of the marriage.
Section 3 of the Prohibition of Child Marriage Act reads as follows: –
“3. Child marriages to be voidable at the option of contracting party being a child: –
(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority. (before twenty for female, and before twenty-three for male)
(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:
Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.”
Act overrides the Hindu Marriage Act
Madras High court in ‘T. sivkumar v. the inspector of Police, 2011’ said that,
“By declaring that the Prohibition of Child Marriage Act shall apply to all citizens, the parliament has intended to allow the Prohibition of Child Marriage Act to override the provisions of the Hindu Marriage Act to the extent of inconsistencies between these two enactments.”
The court further noted that,
“A close reading of the objects and reasons of the Prohibition of Child Marriage Act,would keep things beyond any pale of doubt that the Prohibition of Child Marriage Act is a special enactment for the purpose of effectively preventing the evil practice of solemnisation of child marriages and also to enhance the health of the child and the status of women, whereas , the Hindu Marriage Act is a general law regulating the Hindu marriages.
Therefore, the Prohibition of Child Marriage Act, being a special law, will have overriding effect over the Hindu Marriage Act to the extent of any inconsistency between these two enactments. In view of the said settled position, undoubtedly, Section 3 of the Prohibition of Child Marriage Act will have overriding effect over the Hindu Marriage Act.”