Ensure primacy of child marriage prohibition law

KP Singh

Former DGP, Haryana

THE Assam Police’s crackdown on child marriages has resulted in over 3,000 arrests so far. Some organisations are crying foul, stating that the crackdown is nothing more than a political gimmick and is bereft of any concern for the welfare of the victim brides. The fear of police raids is such that minor pregnant wives are approaching quacks for unsafe abortion to conceal their marriage; the number of women visiting hospitals for pre-natal services and vaccination of their babies has dropped significantly; the ASHA workers are afraid of going to villages lest they should be targeted as police informers; many minor brides have been deserted and left to fend for themselves.

According to the latest National Family Health Survey, 25 per cent of women aged between 18 and 29 years and 15 per cent of men aged 21 to 29 years were found to have married as minors. Government data indicates that 23.3 per cent of girls still marry before the age of 18 years. Their maternal health and child mortality rate are genuine concerns. The critics argue that with the spread of education and awareness, the average age of marriage in India is improving slowly and has gone up to 22.1 years, warranting no different strategy. They are sceptical about the proactive involvement of the police in handling child marriages, which have roots in illiteracy, poverty and widespread ignorance because of several socio-economic, cultural, historical and developmental issues.

The British understood the ill effects of child marriage and had set the legal age of marriage at 14 years for females and 18 years for males under the Child Marriage Restraint Act, 1929. When the Muslim community protested against it, the Shariat Act, 1937, was enacted, which allows a Muslim girl to get married on reaching puberty, irrespective of her age. Since Muslim marriage is a legal contract, it always remained a point of controversy whether a minor Muslim girl is competent to enter into a contract of marriage, as a minor’s consent is ‘no consent’ in law.

The minimum age of marriage was revised upwards to 15 years for females in 1949, and 18 years for females and 21 years for males in 1979. In 2018, the Law Commission of India suggested lowering the legal age of marriage for males to 18 years. On the contrary, the government introduced a Bill in Parliament on December 21, 2021, to increase the minimum age of marriage for females to 21 years and also to give the Prohibition of Child Marriage Act (PCMA), 2006, overriding effect over any other law, custom or practice. The Bill stands referred to the parliamentary committee for further discussions.

The minimum legal age of marriage for women is 18 years. However, some provisions of the Indian Penal Code mention a lower minimum age (15 years) for the wife with regard to consensual sex with her husband. This inconsistency has caused confusion, which is compounded by the Shariat Act, which says that a Muslim girl can marry a person of her choice after attaining puberty. Though the Supreme Court removed the ambiguity partially and criminalised non-consensual sexual intercourse with a minor wife as rape, people are still confused and often act under the influence of their customs and traditions, which subscribe to early marriage.

Such marriages of minors come in direct conflict with the secular and beneficial provisions of the PCMA and also with the Protection of Children from Sexual Offences (POCSO) Act, 2012, which criminalises sexual encounters with those below 18 years of age, irrespective of their marital status. Section 24A of the POCSO Act gives the enactment overriding effect over any other law. It is also established that the child marriage prohibition law overrides the personal laws and customary practices. Accordingly, the Assam Police have booked husbands of minor brides under the POCSO Act and their relatives and priests under the PCMA, though various high courts have interpreted these laws as per the social realities of the time in order to give them ‘purposive construction’.

In the Muzaffar Ali Sajjad case (2001), the Andhra Pradesh High Court observed that Muslims were not exempted from the Child Marriage Restraint Act. If marriage of a Muslim girl is performed during her minority, the marriage is not void but the persons who participated in the marriage cannot escape legal punishment. The Kerala High Court denied bail to the husband of a minor on the ground that a minor did not have the capacity to give a valid consent for marriage.

On the other hand, in Fija and Anr vs State Govt of NCT of Delhi, the Delhi High Court has granted protection from prosecution to a minor girl and her husband and the Meghalaya High Court quashed criminal proceedings under the POCSO Act against a husband for marrying a minor girl as per the customary law.

Recently, the Gauhati High Court rebuked the police for mindless application of the POCSO Act against the husbands of minor girls. It would be difficult to justify the extreme approach of the Assam Police without assessing the fallout of their action in terms of the financial, emotional and security needs of the minor wives.

Admittedly, the police have a role to play in preventing child marriage, but once these have taken place, police intervention is not the appropriate remedy. Rather than sending the husbands of the victim girls to jail and re-victimising them, it would be prudent for the police to take stringent action against the religious priests who solemnise minors’ marriages without due diligence, and to sensitise the masses through them. Additionally, the state agencies should concentrate on reducing the harmful consequences of such marriages on the victim girls.

Law is a delicate tool to be handled with care; playing with it mindlessly without caring for human emotions and needs is deplorable.

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