Fight against Child Marriage in India

Marriage is a celebration in India, but unfortunately so is child marriage. Although we have a statute since 1929 to restrain the same, the power of that legislation in controlling this social evil is dismal. Interestingly, in the era of Chandrayan, we repeatedly hear cases of Child Marriages. Child marriage is a stigma on the forehead of our society. In a recent case, a widow and mother of six children married her 12-year-old daughter to a 35-year-old man in Channa Bakhar village of Jodhpur

The marriage took place clandestinely in the village in the presence of a few relatives and was kept hidden from other villagers. But when the news leaked, the village Panchayat and Sen Samaj declared the marriage illegal. The villagers worked together to save the girl. The Balika Vadhu has purportedly gone into hiding even as her husband Gajendra Sen and his parents were running away.

Child-marriage originated in the medieval age and was born from the same compulsions that perpetuated Sati. It was not prevalent in ancient India. The most popular form of marriage was Swayamvara where grooms assembled at the bride’s house and the bride selected her spouse. Svayam-vara can be translated as self selection of one’s husband, Svayam = self, Vara = husband. Instances of Swayamvara ceremony are found in our national epics, the Ramayana and Mahabharata. Various types of marriages were prevalent in ancient India Gandharva Vivaha (love marriage), Asura Viviha (marriage by abduction) etc., But among these Bal-Viviha (Child marriage) is conspicuous in its absence.

Origin and Causes of child marriages

In the medieval ages, law and order was not yet a universal phenomenon and arbitrary powers were concentrated in the hands of a hierarchy led by a despotic monarch. In India the Sultans of Delhi who held the place of the despotic monarch, came from a different type of culture. Orthodox in their beliefs with a fanatical commitment to their religion there was a ruthless method in its propagation. Intolerant as they were to all forms of worship other than their own, they also exercised contempt for members of other faiths.

As usual, women were the victims during any war, arson, plunder, etc. During the reign of the Delhi Sultans, these were the order of the day and the worst sufferers were Hindu women. During these dark days were spawned customs like child-marriage and selection of women from the rest of the society, wearing of the Ghungat (veil). This age also perpetuated customs like Sati and looking upon the birth of a female baby as an ill omen, even killing newly born baby girls by drowning them in a tub of milk. Amidst the feeling of insecurity, the presence of young unmarried girls was a potential invitation for disaster.

The predatory Sarasenic feudal lords and princes of Sarasenic origins who stalked all over India in the middle ages were a source of constant threat. A girl at home was an invitation for disaster. As such, parents would seek to get over with the responsibilities of their daughters by getting the custom of child marriages with the ‘bride’ and ‘groom’ still in their cradles was a culmination of this tendency. This way the danger to a growing girl’s modesty was somewhat reduced.

Along with this principal reason, there were a few other reasons arising from the nature of the feudal society which were conducive for the prevalence of this practice. In a feudal society, qualities like rivalry, personal honour, hereditary friendship or enmity are rated very highly. Because of this, military alliances play a very important role in preserving or destroying the balance of power between the various kingdoms and fiefdoms. To ensure that the military alliances entered into were observed by both parties, practices like exchanging juvenile members of the respective families who were educated and brought up at each other’s palaces were followed.

They were considered to be captives who were held to ensure that the military alliances between the two kingdoms or clans were honoured. But, a more lasting bond that could back up military alliances was matrimonial alliances between members of the two families. But such matrimonial alliances could be worked out smoothly only if the bride and groom were ready to accept each other. Young men and women of marriageable age are bound to be choosy. This difficulty could be avoided when the marriage was between two children or babies where there was no question of their having any sense of choice as to who their partners in life should be.

The caste hierarchy also perhaps had its role to play in perpetuating such a system. Caste which is based on birth and heredity does not allow marriages between members of different castes. But as youngsters whose emotions and passions could be ruled by other considerations might violate this injunction. Out of the necessity to preserve itself, the hereditary caste system could have helped in nourishing the practice of child-marriage.

Among other subsidiary considerations which could have helped to preserve this custom might be the belief that adults (or adolescent) boys and girls would indulge in unhealthy moral practices. This consideration would have been more relevant in the context of the puritanical and orthodox environment of the bygone ages. The practice could also have been perpetuated, especially among- the economically weaker sections, by the consideration of keeping marriage expenses to a minimum. A child-marriage need not have been as grand an affair as adult marriages.

The Current Scenario

The legal age for marriage in India is 18 years for a female and 21 for a male as per Section 6 of the Hindu Marriages Act, 1956. Any marriage of a person younger than this is banned and punishable in India under the Prohibition of Child Marriage Act, 2006.

But child marriages still take place in India, particularly around the Hindu holy day of Akshya Tritiya. Normally Hindus decide the date for marriages based on horoscopes interpreted by pundits. Some dates however are considered so auspicious that no pundit needs to be consulted. One such day is Akshya Tritiya (also knows as Akha Teej), the third day of Baishakh, the month of the Hindu calendar generally falling in May. During this time lots of marriages take place. Unfortunately, many of them are child marriages. It is a religious tradition in many places in India and therefore quite difficult to change.

And that is really the crux of the problem — child marriages are a reflection that, like sati, women and girls are seen as property that ‘belongs’ to someone: her family, her husband, her in-laws. If her marriage is left too late, she is considered a burden to her own family. In some communities where child marriage takes place, instead of dowry there is a system of ‘bride price’ where, when the girl gets married, the husband’s family has to pay a sum of money in exchange for the bride. Instead of making things better, this system also means that families are eager to get their daughters married off so they can bring in money.

In any case, child marriages are worse for girls than for boys, since the girls are usually younger than the boys. Marriage also puts an end to any education girls may have been receiving. And if they get pregnant while still young, their health gets much worse since their bodies are often not ready to bear children. According to the United Nations, maternal mortality i(which indicates the number of women dying in childbirth or from pregnancy-related causes) is 25 times higher for girls under 15, and two times higher for 15-19-year-olds.

Interestingly enough, around the same time as Akshya Tritiya in 2010, the United Nations had just concluded a special session on children where they adopted 21 child welfare goals for the next decade. One of these was to end “harmful traditional or customary practices such as early and forced marriage”.

Consequences of Child Marriage

All children have a right to care and protection; to develop and grow into a complete and full individual, regardless of their social and economic situation. Child marriage is a blatant violation of all these rights.

Child marriage denies children their basic rights to good health, nutrition, education, and freedom from violence, abuse and exploitation.

When the persons in the marriage are children, their body and mind are put to grave and heinous danger. Most often the child is not even aware of what really awaits her/him as a consequence. Marriage by its very institution imposes certain social responsibilities on the persons in it. It also provides the legal sanction for engaging in sexual activity and procreation. This amounts to sanction for child sexual abuse and rape.

For girls early marriage is the beginning of frequent and unprotected them to early motherhood, reproductive tract infections and sexually transmitted diseases, including HIV/AIDS. It also means frequent pregnancies and abortions.

Early marriage resulting in early motherhood means placing both the young mother and her baby at risk. It leads to increase in the rate of infant mortality and maternal mortality and birth of babies who have low birth weight, malnutrition and anaemia.

Early child marriage violates the child’s right to education. Children remain illiterate and unskilled, which in turn limits their opportunities for economic employment and economic independence as an adult.

Child brides often experience a sudden decline in their social networks, leaving them with few friends and peers if any. Such social isolation pose a host of other challenges that limit their ability to promote their health, development and well-being.

Parents justify early marriage as a way to protect the girl child from violence. However, parents do not understand that child marriage actually opens the door to an endless and vicious cycle of domestic violence and abuse. Marriage is also often used as the first step to trafficking for commercial sexual exploitation, forced labour or any other purpose.

Preference for sons leads to female foeticide adding to the woes of the girl child. It results in fall in the number of girls available for marriage and hence buying of young brides, particularly in states with a skewed sex ratio. Some girl children are victims of “fake marriages” after which they are trafficked for sexual exploitation or as labour. Reports from Haryana, Punjab, Gujarat, Madhya Pradesh, Uttar Pradesh and Rajasthan bear testimony to this.

The Prohibition of Child Marriage Act, 2006

The basic premise of the law is:

1. To make a child go through a marriage is an offence.
2. Child or minor is a person up to 18 years in the case of girls and 21 years in the case of boys.

Voidability of Marriage at the Option of Child

Unlike the earlier legislation, wherein there was no provision for the voidability of the marriage, the new legislation makes the child marriage voidable at the option of contracting party who was a child at the time of marriage i.e. the child who has been married off has the option to go to the court of appropriate jurisdiction (district court or family court, as the case may be) and get his/her marriage declared cancelled. Further, there were only punishments prescribed for individuals getting into child marriage i.e. for the male adult, for the guardians who solemnized the marriage and for individuals who conduct or perform the marriage in any manner. However, the punishment was a meager simple imprisonment upto three months and fine.

However, under the new Act, the child can get the marriage cancelled if he/she so desires. If she does not exercise this option then the marriage remains valid. At the same time, if one spouse is not a child, he cannot get his marriage cancelled and he has to fulfill all the marital obligations of a husband like sustaining the wife, maintenance etc.

This option can be exercised by the child who has been married off and not by anybody else. If the child is still a minor at the time of filing the petition, the guardian can file the petition along with the Child Marriage Prohibition officer for him.

Further, a limitation period of two years from the date of attaining majority has been imposed.

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. Further, no order for nullity 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.

Maintenance and Residence for the Female Child

Section 4 of the Act makes a provision for maintenance and residence to female contracting party to child marriage. If the child marriage is cancelled or nullified, then the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage.

Looking at the social conditions in India, it can be imagined that it would be difficult for the girl to find a good residential place for herself. Therefore, the law along with making provision for maintenance also gives the power to court to make a suitable order as to her residence.

Children of Child Marriage – Their Custody, Legitimacy and Maintenance

The law also makes provision for custody and maintenance of children of child marriages. It gives the discretion to make a suitable order for the custody of such children. Undoubtedly, while making an order for the custody of a child under this section, the welfare and best interests of the child shall be the paramount consideration to be given by the district court.

An order for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of the child, and such other orders as the district court may, in the interest of the child, deem proper. The district court may also make an appropriate order for providing maintenance to the child by a party to the marriage or their parents or guardians.

To dive further into the problems and consequences of child marriage, another issue that could arise, would be the legitimacy of the children born under a child marriage where such marriage has been declared to be null.

Punishments

Originally, Child Marriage was dealt with by the Child Marriage Restraint Act, 1929 (Act 19 of 1929). In 2006, it was repealed and replaced by The Prohibition of Child Marriage Act, 2006. It contains 21 Sections.

Sections 9, 10, 11 and 13 of The Prohibition of Child Marriage Act, 2006 deal with punishments for various contraventions.

Section 9: The punishments for a male adult marrying a child shall be rigorous imprisonment upto two years or fine upto one lakh rupees or both.

Section 10: The punishment for solemnising a child marriage in the form of performing the child marriage or abetting in any form shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

Section 11: The law makes provision for the punishment of any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage. The quantum of punishment has been laid down as rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees. The Act makes an exception in case of women and provides that no woman shall be punishable with imprisonment.

Section 13: Prescribes punishment for performing child marriage by disobeying the injunction granted by any competent Court and the punishment is imprisonment of either description which may extend to two years or with fine which may extend up to one lakh rupees or with both.

Further, the action also makes a presumption against the accused (which is again a deference from the normal law that the accused is always presumed innocent till proven guilty). It is presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.

Marriages to be void in certain cases

The law further lays down the few cases in which the marriage of a minor child is to be void, i.e. where the child,

• is taken or enticed out of the keeping of the lawful guardian; or
• by force compelled, or by any deceitful means induced to go from any place; or
• is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
• such marriage shall be null and void.

A complaint regarding a possible child marriage may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.

It is also provided that the Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suo motu cognizance on the basis of any reliable report or information.

The mass marriages conducted on the day of akshay trutiya are not unknown. For the purposes of preventing solemnisation of mass child marriages on certain days such as Akshaya Trutiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act. The District Magistrate shall also have additional powers to stop or prevent solemnisation of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.

Offences to be cognizable and non-bailable

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under The Prohibition of Child Marriage Act, 206 shall be cognizable and non-bailable.

Child Marriage Prohibition Officers

This statute also introduced the concept of special Child Marriage Prohibition Officers.

With the coming into force of the Act, the State Government shall, by notification in the Official Gazette, appoint for the whole State or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification. The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.

The duties of the CMPO are:

• to prevent solemnisation of child marriages by taking such action as he may deem fit;
• to collect evidence for the effective prosecution of persons contravening the provisions of this Act;
• to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages;
• to create awareness of the evil which results from child marriages;
• to sensitize the community on the issue of child marriages;
• to furnish such periodical returns and statistics as the State Government may direct; and
• to discharge such other functions and duties as may be assigned to him by the State Government.

The State Government may invest the Child Marriage Prohibition Officer with such powers of a police officer as may be needed and issue a notification in such respect. The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3.

The Child Marriage Prohibition Officers shall be deemed to be public servants.

This Act is not in force as of now, i.e. sometimes after a statute receives the assent of the parliament, the state needs to develop the necessary machinery to actually put the Act and its provisions into action. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different States.

To stop such child marriages, governments and civil society organisations are trying to get laws against child marriage made stronger, since it does not seem to be working in its present state. Right now the police cannot make arrests without applying for a magistrate’s order, which may take days. The punishment, a maximum of three months in prison, and a fine is not enough to stop people. Proposed changes include more punishment, a compulsory registration of all marriages rather than just religious rites, the appointment of anti-child marriage officers in every state, and making it a law that anyone who attends a child marriage has to report it.

40% child marriages in India: UNICEF

Forty per cent of the world’s child marriages take place in India, resulting in a vicious cycle of gender discrimination, illiteracy and high infant and maternal mortality rates.

According to the UNICEF’s latest “State of the World’s Children-2009” report, discrimination on the basis of gender has a direct impact on maternal health. It can deny girls and women access to education, prevent them from receiving or seeking adequate health care and bar them from making critical decisions that can affect their health and that of the newborn.

Saving the lives of mothers and their newborns require more than just medical intervention. To be truly effective, these interventions must exist within an environment supportive of women’s rights. This, the report suggests, requires respect for the rights of women and children, quality education, a decent standard of living, protection from abuse, exploitation, discrimination and violence and empowerment of women.

Educating girls and women is not only pivotal to improving maternal and neonatal health, but it also has tangible benefits for families and societies.

Educated women are more likely to delay marriages, ensure their children are immunised, be better informed about nutrition for themselves and their children, and choose safer birth spacing practices. Their children have higher survival rates than those of uneducated women and tend to be better nourished.

Gujarat, Andhra Pradesh top list of child marriages

Gujarat and Andhra Pradesh have topped in the list of child marriages in India, a government data released on, Mar 30, 2010 said.

According to National Crime Records Bureau (NCRB) report, the national capital has recorded one such incident in the year 2008.

This is only the second case reported from Delhi in this decade. It had recorded one such incident in 2003.

The report noted that 23 cases have been reported from Gujarat and 19 cases were reported in Andhra Pradesh.

The other states which reported child marriage cases in 2008 are Karnataka (9), Bihar (8), Punjab and West Bengal (6 each), Chhattisgarh and Maharashtra (5 each), Haryana, Kerala and Tamil Nadu (4 each), Rajasthan (3), Himachal and Madhya Pradesh (2 each) and Assam, Goa and Orissa (one each).

The Child Marriages that took place in India are 99 in 2006, 96 in 2007 and 104 in 2008 as per Crime in India 2008, a publication of National Crimes Records Bureau in India. This is only a tip of the iceberg but in reality most of the Child Marriages go unreported in India as the Child Marriages are sloemnised willingly by the family members and they feel that it is not a crime and hence no report comes against it. It can be prevented only when the society is educated, especially the girls.