This Article is Written by – Jyoti Yadav of 8th Semester of Army Institute of Law.
INTRODUCTION
Marriage is a social institution which also carries with it certain duties and responsibilities but when we talk of a child marriage then it is a catastrophic situation. How can a child is capable of bearing the responsibilities and duties in a marriage as it does not only involves two persons but their family also. By this way even the childhood of a child is also curbed. How can a child give birth to another child? And will it be fair? There are several questions and the solutions to all those questions is to end the menace of child marriage so that every child can enjoy their childhood happily which will certainly help in the better development of a child. Child marriage is concerned with both a boy and a girl child but specifically a girl has to suffer in such an institution and they are more vulnerable to domestic violence and others social issues. Let us discuss what is the meaning of child and what all laws deals with provisions related to the child.
KEYWORDS: Child, Marriage, Child marriage, Legitimate, Contracting Parties etc.
MEANING OF CHILD
A child is a human being who is young and who has not attained the legal age of majority or who is below the age of puberty[1]. The Prohibition of Child Marriage Act, 2006 (hereinafter referred as the Act) defines child as a person who:
- In the case of male, has not completed 21 years of age, and
- In the case of female, has not completed 18 years of age[2].
MEANING OF MARRIAGE
Marriage is a union of two people who are partners in a personal relationship and this union is recognized legally or formally[3]. It is a social institution in which not only two parties but also their families get involve and form a relationship.
meaning of child marriage
From the above definitions of ‘Child’ and ‘Marriage’, it is easy to define “Child Marriage”. It is the marriage between two parties who has not attained the required age of getting married. The Act defines “Child Marriage” as a marriage in which one of the contracting parties is a child[4]. What is ‘contracting parties’ is defined under Section 2(c) of the Prohibition of Child Marriage Act, 2006, as, in regards to the marriage, parties whose marriage is about to be solemnised[5].
CHILD MARRIAGE: VOIDABLE
- Section 3 of the provides that a child marriage under this Act is voidable. The right to declare this marriage as voidable has been given to the contracting party who was the child at the time of marriage.
- Such marriage can be declared annulled by the Court after filing a petition for annulling the marriage.
- Such petition shall be filed by the party to the marriage who was child at that time.
- If when the petition is filed, the child is still a minor then the same should be filed by a guardian or a next friend with the Child Marriage Prohibition Officer.
- Time limit is also prescribed for filing the petition. So a petition cannot be filed after 2 years of the attainment of majority of that victim child.
- District court while granting the decree of nullity will order both the parties to return all valuables or whatever money etc. they have received from each other.
- A notice shall be given to the parties before passing any order.[6]
PROVISIONS REGARDING MAINTENANCE OF FEMALES AND CHILDREN OF CHILD MARRIAGES
- MAINTENANCE OF FEMALE CONTRACTING PARTY TO SUCH MARRIAGE
- When the district court will grant a decree of nullity under section 3 of the Act, he will also pass an interim or final order in which he will direct the male contracting party to pay maintenance to the female contracting party till the time she is unmarried.
- The amount of such maintenance will be decided by the court after considering relevant needs of that child and her lifestyle.
- The amount can be paid monthly or in lump sum.
- The provision regarding residence, if required, shall also be determined by the court.[7]
- MAINTENANCE AND CUSTODY OF CHILDREN BORN OUT OF SUCH MARRIAGE
- The court here shall have power to pass an order regarding the custody of such child and while doing so it will keep the “welfare and best interest of child” at the highest pedestal because that would be of paramount importance here.
- The court may also make provisions for the maintenance of such child. [8]
CHILD DEEMED TO BE LEGITIMATE
Section 6 of the Act states that a child born out of such child marriage shall deemed to be a legitimate child whether it is begotten or conceived before the decree or after the decree.[9]
JURISDICTION OF THE DISTRICT COURT
For the purpose of section 3, 4 and 5, the district court shall also include the district court which have jurisdiction over such place where the:
- Defendant or the child resides, or
- Marriage was solemnized, or
- Parties last resided, or
- Petitioner is residing.[10]
PUNISHMENTS
- If a male adult marries a child, he shall be punishable with:
- Rigorous imprisonment (may extend to 2 years), or
- Fine (may extend to 1,00,000/- Rs, or
- Both.[11]
- A person who has a role in performing, conducting, directing or abetting a child marriage, shall be punishable with:
- Rigorous imprisonment (may extend to 2 years), and
- Fine (may extend to 1,00,000/- Rs.
Exception: a person would not be punished here if he has reason to believe that the marriage in dispute was not a child marriage and he proves the same. [12]
- A person shall be punished with the following punishments if such person promotes or permit the solemnization of such marriage or fails negligently to stop it being solemnized and onw eho attends or participate in such marriage:
- Rigorous imprisonment (may extend to 2 years), and
- Fine (may extend to 1,00,000/- Rs.
Exception: Woman are exempted from imprisonment here.[13]
CHILD MARRIAGE TO BE VOID IN CERTAIN CASES
In the following cases the child marriage shall be null and void:
- When someone take away or entice a child out of the keeping of his/her lawful guardian,
- When the child is taked from one place to another by force or by any deceitful means.
- When the child is sold for marriage and is married.[14]
HOW TO STOP A CHILD MARRIAGE
- You can directly go to a District Court and make an application – the judge can pass an order directing the people involved to not take part in the child marriage.
- You can go to a Child Marriage Prohibition Officer for help with annulling a child marriage.[15]
PROBLEMS ARISING DUE TO CHILD MARRIAGE
- It creates a burden on the family of the in-laws.
- Health complication of the females and problems arising due to their early pregnancy.
- Lack of eduction and awareness leading towards more number of pregnancies.
- Due to desire for male child women are forced to conceive as many times as she can till she gives birth to a male child.
- Age gap between such husband and wife makes life hard for one such party.
- It leads to physical and mental pain for the female contracting party to such marriage.
- Such marriages makes the party to marriage more vulnerable to HIV infections.
LANDMARK JUDGMENTS
- Association For Social Justice & Research v. Union of India[16]
In this case a girl of around 11 years of age was married to a man of 40 years. Several societies working for gender justice etc. tried to save her but could not do so.
The object behind this Act is to stop marriages of child at such a tender age where they are not ready physically and mentally to take a rationale decision with regards to their life.
- Ismail K.K v. Ibrahim Haji[17]
The accused in this case intentionally married a girl who was a minor and not even him but the Quasi was also aware of the same facts. The offence was committed knowingly.
The hon’ble court observed that under this Act any stranger can come and file a complaint against the alleged offence and it is not required that only victim is allowed to file a complaint.
- V. Prema Kumari v. M. Palani[18]
In this case, the respondent married the appellant by applying undue influence and coercion. She was just 15 years old at that time and with malafide intentions he took her to some other place and married there. The Act provides that a petition for annulling the child marriage can be filed by the child or the guardian or a next friend to family before a Family Court or before a District Court including a Family Court.
- T. Sivakumar v. Inspector of Police[19]
In the present case the girl who was a minor, married to a man and left her parents home. Her father filed a case of kidnapping but the girl stated that she does not want to live with her parent as they were forcing her to get married to her maternal uyncle. Later, she was sent to a children’s home.
The Act is a specific piece of legislation aimed at effectively preventing abuses of child marriage and improving children’s health and the status of women. The Hindu Marriage Act is the general law governing Hindu marriages. Since the former is a special law, it takes precedence over the latter in the event of a conflict between the two.
- Court on its own Motion (Lajja Devi) v. State[20]
The hon’ble court observed that the custody of a wife who is a minor, cannot be granted to the husband even if the husband here is an adult. The court also observed that the proceedings here can be quashed by the court if the girl (in this case: of 16 years) proves that she consented to the whole concept of marriage and no force or coercion was used on her.
VARIOUS STRATEGIES TO STOP CHILD MARRIAGE
- Provide education to children.
- Spread awareness by organizing some government programmes.
- Provide awareness regarding health issues which arise due to such marriages.
- Strict implementation of the law related to child marriage should be done.
- Providing job opportunities and making people understand that more child does not mean more income.
- Providing access to medical facilities.
CONCLUSION
Child marriage is a menace and which sadly is still there in our society and it’s high time that it should be stopped. People are still not aware of its consequences and it is indeed a threat to our society. It led to increase in crime rate and violence mostly towards women. Not only this but such marriage also deteriorate the health of the child who born out of such marriage which ultimately makes their future hard. Therefore, focus should be on implementing the laws strictly and punishing the offender.
REFERENCES
online sources referred:
- SCC Online
- Manupatra
websites referred:
- https://vikaspedia.in/social-welfare/social-awareness/child-marriage
- https://data.unicef.org/topic/child-protection/child marriage/#:~:text=The%20Convention%20on%20the%20Elimination,be%20taken%20to%20specify%20a
- https://www.unicef.org/india/media/2556/file/Drivers-strategies-for-ending-child-marriage.pdf
books referred:
- Dr. Sharanjit, Gender Justice.
- Mamta Rao, Law Relating to Women and Children, 4th edition.
[1] Oxford Dictionary.
[2] Section 2(a), Prohibition of Child Marriage Act, 2006.
[3] Oxford Dictionary.
[4] S. 2(b), Prohibition of Child Marriage Act, 2006.
[5] S. 2 (c), Prohibition of Child Marriage Act, 2006.
[6] S. 3, The Prohibition of Child Marriage Act, 2006.
[7] S. 4, The Prohibition of Child Marriage Act, 2006.
[8] S. 5, The Prohibition of Child Marriage Act, 2006.
[9] S. 6, The Prohibition of Child Marriage Act, 2006.
[10] S. 8, The Prohibition of Child Marriage Act, 2006.
[11] S. 9, The Prohibition of Child Marriage Act, 2006.
[12] S. 10, The Prohibition of Child Marriage Act, 2006.
[13] S. 11, The Prohibition of Child Marriage Act, 2006.
[14] S. 12, The Prohibition of Child Marriage Act, 2006.
[15] S. 16, The Prohibition of Child Marriage Act, 2006.
[16] Association For Social Justice & Research v. Union of India, (2010) 118 DRJ 324 : (2010) 95 AIC 422.
[17] Ismail K.K v. Ibrahim Haji, Crl. M.C. No. 647 of 2012 (Ker HC).
[18] V. Prema Kumari v. M. Palani, (2012) 2 CTC 727 : (2011) 5 LW 791 : (2012) 2 Mad LJ 362.
[19] T. Sivakumar v. Inspector of Police, (2012) 1 MWN (Cri) 481 (Mad)(FB).
[20] Court on its own Motion (Lajja Devi) v. State, (2012) 131 DRJ 225.
