The minimum age of marriage and challenge of unclear laws

On Dec 15, 2021, the Union Cabinet cleared the proposal for increasing the minimum age of marriage for women from 18 to 21 years. While the decision may be lauded from the point of view of equality as the legal age of marriage for a man and woman would become the same, there is a need to look at the practical implications of this decision as well.

The provision will accomplish little unless the issues under the Prohibition of Child Marriage Act, 2006 (PCMA) and personal laws are resolved, combined with the implementation of the existing laws. In 2006, the legislature, in order to curb this menace, enacted the PCMA. Section 2(b) of the PCMA provides that child marriage is one where either of the parties (male or female) is a child and Section 2(a) further defines a child as a male under 21 years of age and a female under 18 years of age.

For practical reasons, the PCMA makes a child marriage voidable at the option of the party who was a child at the time of marriage, instead of making it null and void.

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According to UNICEF data, at least 1.5 million girls under the age of 18 get married every year in India. In 2020, the number of child marriages saw a surge of 50%, according to National Crime Records Bureau (NCRB) data, with 785 cases registered under the PCMA. While the increase in reporting of child marriage is praiseworthy, the stark difference of actual and registered number of cases is clear.

The majority of cases are not registered for several reasons, including acceptance of the solemnisation of child marriages, lack of legal awareness, non-cooperative authorities and some flaws in the law itself.

The ramifications of child marriages are countless. The child bride is at risk of being subjected to domestic violence, abuse and sexually transmitted diseases. Pregnancy under the age of 18 puts both the mother and the infant at risk. A report found that women who get pregnant under the age of 18 have at least a 35% higher risk of delivering a preterm child. The Maternal Mortality Rate from 2016-18 was 113 per 1,00,000 live births in India.

Complex and unclear laws

According to the Hindu Marriage Act, 2005 (HMA), for a marriage to be valid, the bridegroom has to be a minimum of 21 years of age and the bride 18.

At the same time, the HMA provides a contradictory provision wherein it allows a female married before the age of 15 to file for divorce under Section 13(2)(iv) of the HMA. A divorce can only be granted for a valid marriage.

Moreover, the child bride has to repudiate the marriage between the ages of 15 to 18 years. This validation of child marriage by the HMA is in direct conflict with the provisions of the PCMA which makes it voidable. Fortunately, the Supreme Court in 2017 resolved the issue by holding that the PCMA would override the HMA in Independent Thought v Union of India and that child marriage will be considered voidable.

The provision of Section 13(2)(iv) is similar to the concept of an option of puberty in Muslim law, wherein a child bride may repudiate her marriage if it was contracted when she was a minor.

However, the general rule is that child marriage among Muslims is legal and was validated by the SC in the case of Shafin Jahan v Ashokan KM (2018), wherein the SC held that marriage among two Muslims on attaining puberty is valid and legal.

In a recent case in Punjab and Haryana High Court, the court held a marriage between a 17-year-old girl and a 36-year-old man as valid. Therefore, while Independent Thought vs Union of India has cleared the position of PCMA vis-à-vis HMA, the status of special law like PCMA with respect to Muslim law is still unclear.

The PCMA provides punishment for a male above the age of 18 years who contracts child marriage. This is highly problematic as this would mean that a male between 18 to 21 years of age would be punished if, in a rare instance, he tries to report his own child marriage. This shows the lack of logic and clarity in the PCMA.

As far as the HMA is concerned, on the one hand, it validates child marriages but on the other, it provides punishment for it under Section 18, which is again contradictory and confusing.

In fact, Section 18 was amended in 2007 to increase the punishment after the enactment of the PCMA. However, no other change was made in the status of such marriages.

More than anything else, such ambiguities and contradictions add to the lack of understanding of legal provisions among common citizens which further makes justice inaccessible.

The proposal is intended to empower women by giving them time to complete their education, decreasing the maternal mortality rate, improving reproductive health, etc. However, there is a dire need to understand the root cause of this continuing menace, which is societal perception.

There is a need for awareness about the risks of child marriage, including the mother and infant mortality rate, and the dangers of domestic violence and abuse. Further, the laws need to be clearer, unambiguous and strictly implementable.

(The writer is a student at National Law University, Jodhpur)

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