Misinterpreting the law on minors’ marriage

Tahir Mahmood
Former Member, Law Commission

Ignorance of law is no excuse, goes a legal maxim. It means that one who violates a law cannot plead lack of knowledge about the law violated. The late Justice VR Krishna Iyer had once suffixed it with the words “except for lower courts.” He said this on a lighter note to point out that lower courts often err on points of law which the higher courts correct in appeals. In retrospect, however, this seems to be the ground reality of the day. Laws are often misunderstood, misconstrued and misapplied — not only by laymen but also by law men officially performing legal functions. Miscarriage of justice is indeed not too infrequent in our society.

What has provoked me to comment on this sorry state of affairs is a recent media headline reading as ‘Groom under 21, wedding still legal, rules High Court’ (The Tribune, September 20). The story reports a Punjab and Haryana High Court decision that the Registrar of Marriages at Sonepat had wrongly declined to register a marriage on the ground that at the time of the wedding, the groom was underage. The parties entangled in the rigmarole were married in 2011, happily lived together and were blessed with a child. Six years after marriage, they sought the registration of their marriage, but discovering that at the time of tying the knot, the groom was marginally short of marriageable age prescribed by law, the Registrar of Marriages robotically dismissed their application. The harassed couple then knocked at the doors of the state high court and the matter was decided in their favour.

That a marriage registrar should have such an imperfect knowledge of a law he is required to administer and needs judicial reprimand to correctly comprehend it speaks volumes about the state of legal literacy in the corridors of bureaucracy. 

The Sonepat Marriage Registrar is, however, not alone in having such a confused thinking about the true legal status of a minor’s marriage. In July this year, a judge of the Allahabad High Court, ruling that the marriage of a 16-year girl was void in law, ordered her internment in a Nari Niketan. Entertaining the aggrieved girl’s appeal, the Supreme Court sent notice to the state government as per procedure, but they remained lukewarm. Conscious of the palpable illegality of the high court’s action and annoyed by the government’s dilly-dallying, the court ordered personal appearance of the state Home Secretary. This story and the Punjab and Haryana High Court’s decision referred to the above hit media headlines on the same date. 

It requires no extraordinary excellence to understand the law on the status of minors’ marriage. Due to the continuing pluralism in the country’s family law, the matter is simultaneously governed by community-specific personal laws and the general law applicable to all, regardless of religion. Under the statutory laws of both these categories, the prescribed marriage age is now 18 years for girls and 21 years for boys — and the law has reached this stage of development in a span of 90 years. 

The first law enacted on the subject was the Child Marriage Restraint Act of 1929, popularly known as the Sarda Act (after the name of its architect Harbilas Sarda who was then a member of the Central Legislative Assembly). It fixed the minimum age for marriage — 15 years for girls and 18 years for boys. Short-term imprisonment and fine were prescribed under it as penalties for those responsible for its violation. Legal validity of a minor’s marriage was, however, left absolutely unaffected by its provisions. 

Enacted 26 years later, the Hindu Marriage Act of 1955 adopted, mutatis mutandis, the provisions of the 1929 Act. It also borrowed from the Dissolution of Muslim Marriages Act, 1939, the rule of ‘option of puberty’, empowering girls married at a tender age to get the marriage dissolved on coming of age. The relief under both the Acts was discretionary with the girls, which they could choose to ignore and continue in marriage without let or hindrance. 

The Child Marriage Restraint Act and the Hindu Marriage Act were amended in October 1978 to increase the minimum age for marriage of girls and boys to 18 and 21 years, respectively. The legal validity of the marriage of persons below the increased age remained absolutely unaffected also after this amendment — the violators would still be only liable to the punishments laid down by law.

In 2006, the Child Marriage Restraint Act of 1929 was replaced with a new Prohibition of Child Marriages Act, applicable to all, regardless of applicable personal laws. The minimum marriage age for girls and boys remained unchanged under it, but the penalties for arranging minors’ marriage were enhanced. 

Under the new Act, a minor’s marriage would be void at her or his option, to be exercised within two years of attaining majority. This relief too is discretionary for the minors and cannot be imposed on them either by their guardians or by any court. Nor is there anything in the new Act of 2006 from which one could even remotely draw the inference of a minor’s marriage being void.

The law, thus, imposes penalties on persons arranging minors’ marriages and empowers minors to get rid of such a marriage on coming of age. But till date, it does not declare any such marriage to be void ab initio so as to be devoid of legal effects or ineligible for legal facilities. The Allahabad High Court judge who viewed a minor’s marriage as void and hence ordered the couple’s forced separation was as much at fault as  the Sonepat Marriage Registrar in whose sight a minor’s marriage would be perpetually void and hence ineligible for registration.

A judge or marriage registrar may be dissatisfied with the present law but they are duty-bound to apply the law as it is, not what they in their wisdom would like it to be.