early marriage
source: https://pk.mashable.com/culture/3591/coronavirus-could-put-4-million-girls-at-risk-of-child-marriage

Introduction

During the budget speech in February for the financial year 2020 the Indian Finance Minister, Ms. Nirmala Sitharaman announced for the formation of a high-level committee to revise the legal age of marriage for Females.

The said high-level committee has been constituted by the government to look into the matter and submit its recommendation by 31st July. This high-level committee has a task force of ten- members including Secretaries Health, Women and Child Development, Law and school education and will be headed by the former president of Samata Party Ms. Jaya Jaitley.

This committee will examine the following topics namely:

  • The age of motherhood
  • Imperatives of lowering the maternal mortality rate
  • Improvement of nutrition levels
  • And other related issues

It’s not the first time when there is a debate over the fixation of a minimum age of marriage in India. Numerous laws and regulations are already present in the Indian legal system.

The history of laws relating to the minimum age of marriage includes;

Indian Penal Code

The Indian Penal code, when enacted in 1860, criminalized any sexual intercourse with a girl below the age of 10 initially. Later this was raised to 12 in 1891[1], 14 in 1925[2], 16 in 1940 and 18 in 2013[3].

But the exception 2 of section 375 [4] reads sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.

The supreme court of India while deciding the matter of Independent Thought vs Union of India [5] pointed out following in respect to the exception 2 of section 375

  • “A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child. At this stage, we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet — so also with the status of a child, despite any prefix,”
  • the exception clause to rape carved out in the IPC. It created an unnecessary and artificial distinction between a married girl child and an unmarried girl child. The clause took away the right of a girl child to bodily integrity and reproductive choice. It had even the effect of turning a blind eye to the trafficking of the minor girl children in the guise of marriage.
  • The supreme court also referred to a decision of the European Commission of Human Rights which endorsed the conclusion that “a rapist remains a rapist regardless of his relationship with the victim.”

The Child Marriage Restraint Act 1929 (Sarda Act)

In the British colonial period of the year 1929, the Child Marriage Restraint Act [6]was passed in British India which set 14 and 18 years as a minimum age for marriage of Female and Male respectively.

The Child Marriage Restraint Act was the first social reform issue taken up by the organization of women group in British India, this was done by exerting political pressure on representatives and by other ways like hoarding and rally they believed that bypassing this act it would send a message to the entire world that India is serious about social reforms.

The Child Marriage Restraint Act is popularly known as the Sarda Act of 1929 after its sponsor Harbilas Sarda who was a judge and a member of Arya Samaj.

Despite being a huge social reform of the time, the implementation of this Act remained as a Dead Letter to the following reasons: –

  • British Government did not want to have communal displeasure as this law was directly targeting the communal practice of different sections of society.
  • Also, the Princely States Were Exempted which means that a large territorial area was immune from this Act.

The Special Marriage Act, 1954

The Section 4[7] of The Special Marriage Act 1954 [8]lays down the Conditions relating to solemnization of special marriages and under the sub-clause ‘c’ [9]of the same it lays down 21 and 18 as the minimum age for Male and Female respectively for getting married under the Special Marriage Act.

Amendment to Child Marriage Restraint Act, 1978.

In the year 1978, an amendment was brought in the Child Marriage Restraint Act [10] popularly known as the Sarda Act. The amendment affects the increase of the minimum age of marriage to 18 from 14 for Females and 21 from 18 for males.

Hindu Marriage Act 1955[11]

Section 5(3)[12] of the Hindu Marriage Act 1955 provided the age for the bridegroom as 18 years and for the bride 15 years. Through where the bride was below the age of 18 the consent of her guardian was necessary under clause vi of this section. But now the child marriage restraint (Amendment) Act 1978[13] has revised the minimum age fixed for marriage to 21 years in case of the bridegroom and 18 years in case of the bride.

Prohibition of Child Marriage Act 2006.

In the Year 2006, the Child Marriage Restraint Act [14]was repealed and replaced by the Prohibition of Child Marriage Act.[15]

As the name itself suggest the Prohibition of Child Marriage Act makes child marriage a cognizable and non-bailable offence [16]. It makes provision on punishment for both solemnizing child marriage[17] and also for promoting or permitting solemnizing child marriage[18].

According to the Prohibition of Child Marriage Act ‘Child’ means any Male for Females below the age of 21 and 18 respectively.[19]

Is Child Marriage Prima facie punishable?

Despite being many rules and regulations enacted by the competent authority, it cannot be said that the minor marriage is not allowed because of the presence of personal laws for the management of religious affairs in the Indian legal system as guaranteed by the Indian constitution[20].

The Mohammedan laws do not provide for a specific age of marriage. But it is judged by puberty i.e. when a male or female attains puberty, they are competent to perform marriage under Mohammedan Law.

The age of puberty – there is a controversy regarding the age of puberty the Lahore high court in case of Beharam Khan v Akhtar Begum[21] held that in absence of evidence to contrary a Muslim girl is presumed to have attained the puberty at the age of 15 years.

Also, Mohammedan Law provides for Minor marriage through guardian which is discussed below.

Khyar-Ul-Bulugh (Option of Puberty)

Meaning and Nature

‘option of puberty’ is right of the minor boy or girl whose marriage has been contracted through a guardian, to reupdate or confirm the marriage on attaining puberty also this type of marriage is valid until repudiation.

In the case of Abdul Karim v Amina bai[22], the Bombay high court held that the option of repudiation given to the wife is based on principles emphasized in the Quran. It is one of the safeguards by which Islam alleviates the incidence of pre-Islamic institutions pressing harshly against women and children.

Old Law on the option of puberty

If the minor had been married by the father or grandfather, the marriage was regarded to be valid and binding on the minor who could annul to on the attainment of puberty except in very special circumstances

Grounds of the option of puberty – in the case of marriage of minor contracted by the father or grandfather it could not be reupdated except-

  1. When the father or grandfather acted negligently or wickedly, or
  2. When the marriage was to the manifest disadvantage of the minor.

Marriage of a minor may be contracted by his or her father or father’s father. Marriage of a minor contracted by the person other than father or father’s father is ineffective under Shia law unless it is rectified by such minor on attaining puberty.

In Aziz Bano v Mohammad[23] a Shia girl when minor was married to a Sunni boy by her father on attaining the age of puberty, she considered marriage is against her religious beliefs and is disadvantageous to her, it was held that she must be allowed the option of puberty to repudiate it.

Time option

By female –

1. In the case she was aware of her marriage she must exercise her right immediately after attaining puberty. Any unreasonable delay would deprive her right

2. Among Sunni if the girl did not know about her marriage, she retained her right;

2(i) Until she became aware of the marriage.

2(ii) Until she was acquainted with the fact that she had the right to repudiate the marriage.

2(iii) And she could not exercise that right within a reasonable time frame.

In Bismillah v nur Mohammad[24] the essential principle worthy of consideration was that the woman should exercise her option of puberty immediately on attaining puberty and seeing the signs thereof and any sort of delay was to be avoided because of husbands right of cohabitation.

3. The option was lost if she after attained puberty permitted the marriage to be consummated with her free consent.

 By Male

A male retained the option until he had ratified the contract by

  1. Express declaration;
  2. Payment of dower;
  3. Cohabitation

Present law Regarding Option of Puberty

The dissolution of the Muslim marriage act 1939 [25]has considerably modified the old law of the option of puberty. Before it the marriage contracted by father or grandfather could not be repudiated by the minor until in very special circumstances.

But section 2 clause VII [26]of the Act reads A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage that she, having been given in marriage by her father or other guardians before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years Provided that the marriage has not been consummated

The dissolution of the Muslim Marriage Act 1939 applies only to a woman married under Muslim law. And does not apply the case of Muslim man so in the case of Muslim man the old law of Khayar -ul – Bulugh (option of puberty) would apply

An analysis of the above clause will clearly explain that all the restriction on the option of puberty in the case of a minor Muslim girl whose marriage has been arranged by father or grandfather have been abolished, provided that all three conditions are satisfied namely:

  1. The marriage took place when she was below the age of fifteen years
  2. She repudiated the marriage before attaining the age of eighteen years
  3. The marriage has not been consummated.

Problems Arising Out of early Marriage

Data reflects that a girl who is married before the age of 18 are;

  • More likely to experience unwanted pregnancies
  • Vulnerable to sexually transmitted diseases and
  • At a greater risk of pregnancy-related complications and maternal mortality
  • Lack of resources to proper education and access to health care, antenatal care, skilled child delivery, and complete vaccination of infants.
  • Infant mortality and death of young children is significantly higher in children born to mother who are married to an early age [27]

Author:

Aditya Kumar Tyagi Aditya Kumar Tyagi | Legal Editor


References

[1] The Indian Criminal Law (Amendment) Act, 1891, No. 10, Acts of Parliament, 1891 (India).

[2] The Indian Penal Code (Amendment) Act, 1925, No. 29, Acts of Parliament, 1925 (India).

[3] The Criminal Law (Amendment) Act, 3013, No. 13, Acts of Parliament, 2013 (India).

[4] Indian Penal Code 1860 § 375.

[5] Independent Thought vs Union of India (2017) 10 SCC 800

[6] The Child Marriage Restraint Act, 1929, No. 19, Acts of Parliament, 1929 (India).

[7] The Special Marriage Act 1954 § 4

[8] The Special Marriage Act 1954, No. 43, Acts of Parliament, 1954 (India).

[9] The Special Marriage Act 1954 § 4(c)

[10] Child Marriage (Amendment) Act, 1978, No. 2, Acts of Parliament, 1978 (India).

[11] The Hindu Marriage Act 1955, No. 25, Acts of Parliament, 1955 (India)

[12] The Hindu Marriage Act 1954 § 5(3)

[13] child marriage restraint (Amendment) Act, 1978, No.2, Acts of Parliament,1978(India)

[14] Ibid

[15] Prohibition of Child Marriage Act 2006, No.06, Acts of Parliament, 2007 (India).

[16] Prohibition of Child Marriage Act 2006 § 15

[17] Prohibition of Child Marriage Act 2006 § 10.

[18] Prohibition of Child Marriage Act 2006 § 11.

[19] Prohibition of Child Marriage Act 2006 § 2(a)

[20] INDIAN CONST. art 26.

[21] Behram Khan v. Akhter Begum 1952 PLD Lahore 548

[22] Abdul Karim v. Aminabai, A. I. R. Bom. 308 (1935). 68

[23] Aziz Bano v Mohammad 9 Ind Cas 690

[24]Bismillah v Nur Mohammad (1922) ILR 44 All 61

[25] Dissolution of Muslim Marriage Act, 1939 No.08, Acts of Parliament, 1939 (India)

[26] Dissolution of Muslim Marriage Act, 1939 § 2(VII)

[27] Raj A, Saggurti N, Winter M, et al. The effect of maternal child marriage on morbidity and mortality of children under 5 in India: cross-sectional study of a nationally representative sample. BMJ. 2010;340: b4258. Published 2010 Jan 21. DOI:10.1136/bmj. b4258

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