7 Jan 2020

Prohibition of Child Marriage Act, 20064 min read

Source: The Hindu

Manifest pedagogy: Child marriage has been a key issue in India. Other issues such as POCSO, dowry and gender gap emerging from household work done by girl child are also issues which deserve attention.

In news: SC has recently held that Section 9 of Child Marriage Act is only concerned with punishment for male adult marrying a child.

Placing it in syllabus: Social issues

Dimensions:

  • Interpretation of Section 9 of the Act 
  • Recent judgement by Supreme Court
  • Its importance and drawbacks

Content: Supreme Court held in a recent judgment that the Child marriage act does not intend to punish a male aged between 18 and 21 years for marrying a “female adult”.

Interpretation of Section 9 of the Act: Section 9 of the Child marriage act ( Punishment for male adult marrying a child) states that – “ Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both”.

  • In November, 2019 verdict, SC had held that a provision of the child marriage law that punishes a man aged between 18 and 21 years for marrying an adult woman is not a correct interpretation of the law.
  • The bench held that punishing the male for such a marital union on grounds that it amounts to child marriage is against the “legislative history” of the law.
  • The legislative intent was to punish men who married minor girls.
  • Although both men and women are deemed to be adults at the age of 18 under other laws, a differential metric has been adopted in the Prohibition of Child Marriage Act, 2006, which says a man has to attain the age of 21 to be considered an adult.
  • Thus, even if the husband is between 18-21 years of age, the law treats it as a child marriage and punishes the male.
  • According to the SC bench this anomaly had occurred due to the literal interpretation of Section 9 of the Act that goes against the very object of the Act.

Recent judgement by Supreme Court:

  • The case at present was concerned a boy who married a 21-year-old woman when he was 17 years old.
  • The Punjab and Haryana High Court had set aside its own order providing protection to the couple.
  • Prosecution was instituted against the boy for contracting a child marriage, in which he himself was the child.
  • The Supreme Court set aside the HC order, saying the intent behind Section 9 was not to punish a child for contracting a child marriage.
  • SC bench has said that neither does the provision punish a child for marrying a woman nor a woman for marrying a male child because in Indian society decisions regarding marriage are usually taken by the family members of the bride and groom, and women generally have little say in the matter.
  • The SC bench held that the sole objective of the provision is to punish a man for marrying a minor girl.
  • The intention behind punishing only male adults contracting child marriages is to protect minor girls.
  • It said that the 2006 Act gives an option for prospective grooms who are between 18 and 21 years old to opt out of marriages.

Importance of the Act and its drawbacks:

  • Under the Act, child marriages will be declared null and void if 
    • the injunction prohibiting a child marriage from taking place is violated/ contravened 
    • the child is taken away from their lawful guardian by enticement, force or use of deceitful means 
    • the child is sold or trafficked for the purpose of marriage.
  • The law makes child marriages voidable by giving choice to the children in the marriage to seek annulment of marriage.
  • It gives a legal status to all children born from child marriages and makes provisions for their custody and maintenance.
  • The law provides for all support and aid including medical aid, legal aid, counselling and rehabilitation support to children once they are rescued.
  • Section 11 of the Act provides punishment for those who permit and promote child marriages.
  • Section 12 of the Act lays down that if someone kidnapped and married a minor girl and contested claim over the minor’s guardianship in defense to charges of kidnappings, in such cases the marriage would be treated as null and void. 
  • Now the recent SC interpretation of Section 9 helps in dealing with the problem of men in the 18-21 year age group being punished for marriage with a woman.

Drawbacks:

  • The Act has failed to make all child marriages automatically void, instead making them void only where the child is “taken or enticed” from the care of a guardian, in cases of compulsion, fraud or trafficking, and if performed in violation of an injunction.
  • The Act holds that a child marriage is voidable only upon the filing of a petition for annulment in district court. Hence it does not automatically declare child marriages void, only making them voluntarily voidable.
  • The Act criminalizes criminalizes family members who themselves are often living in poverty, lack adequate education and may be succumbing to social pressure.

Facts (UNICEF):

  • While there has been a decline in the incidence of child marriage nationally from 54 per cent in 1992-93 to 27 per cent in 2016, the pace of change remains slow, especially for girls in the age group 15-18 years. 
  • Child marriage is more prevalent in rural areas (48 per cent) than in urban areas (29 per cent).
  • The rates of child marriage are highest in the central and western parts of India and lower in the eastern and southern parts of the country.
  • Other states that have an incidence of child marriage higher than national average are: Jharkhand, Uttar Pradesh, West Bengal, Madhya Pradesh, Andhra Pradesh and Karnataka.


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