Legality of Child Marriage.
Background of Child Marriage:
Child Marriage or marriage of minors, like most of the other countries, was a traditional practice in India; where elders would commit to marry their minor children. Various laws have been enacted from time to time to curb this practice, but it is not completely routed out. However, among Hindus, the child marriage itself has never been declared void by law. In respect to other religions, the problem had not been addressed at all. However there are two High Courts of India whose Full Benches have held that now, in the wake of changes in law, Child Marriage is illegal and ineffectual till the child reaches age of consent, and a two-year time period elapses thereafter during which he/she can seek annulment of child marriage.
The ill-effect of such marriages are well-known. Besides the health and life of child, it has social fallout as well. Some of the ill effects have been summarised by UNICEF here. According to Unicef, world’s 40% child marriages take place in India.
Laws of India on Child Marriage:
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.
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. 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.
Prohibition of Child Marriage Act is a special enactment for the purpose of effectively preventing the evil practice of solemnisation of child marriages and 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.
Legal rights of minor at threshold age:
i. The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a competent court.
ii. The adult male contracting party to a child marriage with a female child shall not be the natural guardian of the female child.
iii. The male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him even if the female child expresses her desire to go to his custody.
iv. In a habeas corpus proceeding, while granting custody of a minor girl, the court shall consider the paramount welfare including the safety of the minor girl not withstanding the legal right of the person who seeks custody.
v. Whether a minor girl has reached the age of discretion is a question of fact which the court has to decide based on the facts and circumstances of each case.
vi. The minor girl cannot be allowed to walk away from the legal guardianship of her parents. But, if she expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court cannot compel her to go to the custody of her parents and instead, the court may entrust her in the custody of a fit person subject to her volition.
vii. If the minor girl expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court may order her to be kept in a children home set up for children in need of care and protection and at any cost she shall not be kept in a special home or observation home meant for juveniles in conflict with law.
viii. A minor girl whose marriage has been contracted in violation of Act is not an offender and so she is not a juvenile in conflict with law.
ix. While considering the custody of a minor girl in a habeas corpus proceeding, the court may take into consideration the principles embodied in Sections 17 and 19(a) of the Guardians and Wards Act, 1890 for guidance.