Child marriage usually refers to a social phenomena practised in some societies in India , where a young child (usually a girl below the age of fifteen) is married to an adult man. A second form of practice of child marriage is that in which the parents of the two children (the girl and boy) arrange a future marriage. In this practice, the individuals (the boy and girl) do not meet one another until they reach the marriageable age, when the wedding ceremony is performed. As per law, the marriageable age is 21 for males and 18 for females.
Gender inequality, social norms, perceived low status of girls, poverty, lack of education, safety concerns about girl children and control over sexuality are considered to be reasons for prevalence of child marriages. Girl children in rural areas are more affected than their urban counterparts.
However, if any partner(s) engages in marriage at a younger age, (s)he can ask for the marriage to be declared void / annulled.
Child marriage prevalence is generally defined as the percentage of women 20-24 years old who were married or in union before age 18. India is estimated to have over 24 million child brides. 40% of the world’s 60 million child marriages take place in India according to the National Family Health Survey. India has the 14th highest rate of child marriage in the world, according to the International Center for Research on Women.
Marriage systems and practices vary by region, caste and tribe. Rates of child marriage are higher in the North-West and lower in the South-East of the country. The states with the highest rates of child marriage (50% and above) are Bihar, Rajasthan, Jharkhand, Uttar Pradesh, West Bengal, Madhya Pradesh, Andhra Pradesh and Karnataka. But even in low prevalence states there may be pockets of with high rates of child marriage. According to a recent district-level household and facility survey (DLHS), conducted for the Health Ministry, the worst state for child marriage is Bihar, where nearly 70% of women in their early twenties reported having been married by the age of 18; the best is Himachal Pradesh at 9%.
According to DLHS data, around 48% of married women in the 20-24 year age group got married before 18 in rural areas, compared with 29% in urban areas.
Over the past fifteen years, child marriage has declined by just 11 percent – less than one percent per year. The Annual Healthy Survey carried out in 2011, shows a more rapid decline in nine surveyed states.
To eradicate the evil of child marriage, the Child Marriage Restraint Act was passed in 1929. The object is to eliminate the special evil which had the potentialities of dangers to the life and health of a female child, who could not withstand the stress and strains of married life and to avoid early deaths of such minor mothers.
It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India within and beyond India.
It came into force from the Ist day of April, 1930.
The penal provisions do not invalidate the fact of marriage nor do the penal provisions apply to a child. Its section 3 provides that, who ever, being a male above eighteen years of age and below twenty one, contracts a child marriage shall be punished with simple imprisonment, which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both.
Whoever, being male above twenty one years of age contracts a child marriage shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine.
In the Indian social set-up a male adult can be imputed greater sense of foreseeability of the consequences of this social evil of child marriage and in this context the punishment prescribed by the law to deter them is too mild in effect specially in this era of social justice when penology has become more reformative than deterrent.
Whoever performs, conducts or directs any child marriage shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine, unless he proves that he had reasons to believe that the marriage was not a child marriage (section 5).
Though their liability under the criminal law is that of the abetters, but it should not preclude their direct responsibility for the offence and suitable amendment should be made in the Act to punish them as principal offenders. If this social evil is to be eradicated the role of such intermediaries should be brought to book with deterrent punishment. The present law is lukewarm in this regard.
Consummation of "Gauna" is not part of marriage ceremony. The marriage being complete before the consummation, a person may be convicted under this Act, though consummation has not taken place.
Section 6 provides that where a minor contracts a child marriage any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punished with simple imprisonment which may extend to three months and shall also be liable to fine.
Provided that no woman shall be punishable with imprisonment. Under this section, it is presumed that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnised. Minors are incapable of entering into any valid contract and marriage under the Hindu law is not a contract. So the words "where a minor contracts a child marriage" in section 6(l) ought not to be literally interpreted as per its dictionary meaning but ought to be understood as meaning "where a child marriage" takes place or where a minor enters into a child marriage.
The child bride or the child bridegroom are mere passive actors in such a marriage and the active participants are the parents, guardians or the custodians of such children. As the law is not mindful about the active culpability of these persons, this Act has not yielded the desired results. The imposition of fine only lacks the deterrent effect which is needed most in such cases. Further this Act does not take into account the performance of preparatory ceremonies of such a marriage like engagements etc. Some provision should be made in this Act to prevent and punish such actions also if they culminate in child marriage.
It is noteworthy that a contravention of the provisions of the Act does not render the marriage invalid as the validity of the marriage is a subject beyond the scope of the Act. A marriage under the Hindu Law by a minor male is valid even though the marriage was not brought about on his behalf by the natural or lawful guardian. The marriage under the Hindu Law is a sacrament and not a contract. The minority of an individual can operate as a bar to his or her incurring contractual obligations, but it cannot be an impediment in the matter of performing a necessary "Sanskara". A minor's marriage without the consent of the guardian can be held to be valid on the application of the doctrine of factum valet.
Section 7 provides that the Code of Criminal Procedure, 1973 shall apply to offences under the Act as if they were cognizable offence for the purpose of investigation.
Notwithstanding anything contained in section 190 of the Code of Criminal Procedure, 1973, no Court other than a Metropolitan Magistrate or a Judicial Magistrate of the First Class can take cognizance of, or try any offence under this Act.
Limitation - No Court can take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. This further dilutes the efficacy of the law.
Injunction - Section 12 empowers the Magistrate to issue injunction prohibiting marriage in contravention of this Act. The Court may issue an injunction against any of the persons mentioned in Section 3, 4, 5 and 6 of this Act prohibiting such marriage.
This injunction shall not be issued against any person unless the court has previously given notice thereof to the person concerned and has afforded him an opportunity to show cause against the issue of the injunction. This requirement of the law may defeat the purpose of social justice where there is imperative need of judicial intervention to save the welfare and interest of the child. No doubt frivolous petitions by interested persons may sometimes result in dislocation of arrangements in genuine cases and such victims may also face social humiliation but this can be safeguarded by making deterrent provisions in the Act for those who move such frivolous petitions.
The Court may either of its own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1).
When such an application is received, the Court shall afford the applicant an early opportunity of appearing before it either in person or by pleader; and if the court rejects the application wholly or in part, it shall record in writing its reasons for so doing.
Child marriage is prohibited in India as per the Prohibition of Child Marriage Act, 2006.
What does this law do?
What is a crime under this law?
It is a crime:
Where can you go to stop or undo a child marriage?
Source : Nyaaya
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