Child Marriage is illegal in India:

Background of Child Marriage:

Child Marriage or marriage of minors, like most of the other countries, was a traditional practice in India; where elders would commit to marry their minor children.

Various laws have been enacted from time to time to curb this practice, but it is not completely routed out. However, among Hindus, the child marriage itself has never been declared void by law. In respect to other religions, the problem had not been addressed at all. However there are two High Courts of the country whose Full Benches have held that now, in the wake of changes in law, Child Marriage is illegal and ineffectual till the child reaches age of consent, and a two-year time period elapses thereafter during which he/she can seek annulment of marriage. The ill-effect of such marriages are well-known. Besides the health and life of child, it has social fallout as well. Some of the ill effects have been summarised by UNICEF here. According to Unicef, world’s 40% child marriages take place in India.

Laws applicable on child marriages, in India:

At present there are two laws governing the Child Marriage: 1. Hindu Marriage Act, 1956 2. Prevention of Child Marriage Act, 2000 There are two penal provisions which also come into play, in case of child marriage. These are: 1. Abduction (Section 363 of IPC) 2. Rape (Section 376 of IPC)

Effect of Child Marriage Act, 2000:

A Girl of 13 years of age eloped and got married with a major boy. Her mother wrote to Chief Justice of Delhi High Court which treated her letter as writ petition. The division bench of Delhi High Court found the existing law as unclear on the subject therefore it formulated following questions for consideration by a larger Bench:

1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
(2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?
(3) If yes, can she be kept in the protective custody of the State?
(4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
(5) Whether there may be other presumptions also which may arise?

The above matter remained pending in Delhi High Court since 2008 and a similar situation arose before Madras High Court. A young girl aged about 17 years went to temple and did not return home. Her Natural Guardian filed a Habeas Corpus petition in High Court demanding her custody. Apparently she had eloped with a major boy and claimed that they had married in accordance with Hindu customs and rituals.

(1) Whether a marriage contracted by a person with a female of less than 18 years could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
(2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?
(3) If yes, can she be kept in the protective custody of the State?
(4) Whether in view of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, a minor girl, who claims to have solemnized her marriage with another person would not be a juvenile in conflict with law and whether in violation of the procedure mandated by the Juvenile Justice (Care and Protection of Children) Act, 2000, the Court dealing with a Writ of Habeas Corpus, has the power to entrust the custody of the minor girl to a person, who contracted the marriage with the minor girl and thereby committed an office punishable under Section 18 of the Hindu Marriage Act and Section 9 of the Prohibition of Child Marriage Act, 2006 ? and
(5) Whether the principles of Sections 17 and 19(a) of the Guardians and Wards Act, 1890, could be imported to a case arising out of the alleged marriage of a minor girl, admittedly in contravention of the provisions of the Hindu Marriage Act?

Reasoning of the Madras High Court on child marriage:

Since the Hindu Marriage Act as well as the Child Marriage Restraint Act do not declare a marriage of a minor either as void or voidable, such a child marriage was treated all along as valid. There were number of judicial pronouncements to this effect. In this legal scenario, The Hindu Minority and Guardianship Act also provided that the husband of a minor wife is her natural guardian. With effect from 10.01.2007, ” The Prohibition of Child Marriage Act, 2006 ” was brought into force thereby repealing The Child Marriage Restraint Act, 1929. It is manifestly clear that this Act is secular in nature which has crossed all barriers of personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are prohibited.
Prohibition of Child Marriage Act is a special enactment for the purpose of effectively preventing the evil practice of solemnisation of child marriages and also to enhance the health of the child and the status of women, whereas , the Hindu Marriage Act is a general law regulating the Hindu marriages. Therefore, the Prohibition of Child Marriage Act, being a special law, will have overriding effect over the Hindu Marriage Act to the extent of any inconsistency between these two enactments.
….the marriage shall remain voidable (vide Section 3) and the said marriage shall be subsisting until it is avoided by filing a petition for a decree of nullity by the child within the time prescribed in Section 3 (3) of the Prohibition of Child Marriage Act. If, within two years from the date of attaining eighteen years in the case of a female and twenty-one years in the case of a male, a petition is not filed before the District Court under Section 3 (1) of the Prohibition of Child Marriage Act for annulling the marriage, the marriage shall become a full-fledged valid marriage.
Similarly, after attaining eighteen years of age in the case of female, or twenty-one years of age in the case of a male, if she or he elects to accept the marriage, the marriage shall become a full-fledged valid marriage. Until such an event of acceptance of the marriage or lapse of limitation period as provided in Section 12 (3) occurs, the marriage shall remain as a voidable marriage. If the marriage is annulled per Section 3 (1) of the Prohibition of Child Marriage Act, the same shall take effect from the date of marriage and, in such an event, in the eye of law there shall be no marriage at all between the parties at any point of time. As per Section 11 of the Hindu Marriage Act, any marriage solemnized in violation of Clause (i) (iv) and (v) of section 5 of the Hindu Marriage Act is void and the same may be declared by a decree of nullity, whereas under Section 12 of the Hindu Marriage Act, a voidable marriage may be annulled by a decree of nullity. The different expressions used in these two provisions cannot go unnoticed.
So far as Section 11 of the Hindu Marriage Act is concerned, the marriage is not annulled and is only declared as void by a decree of nullity. Thus, what is done by the court is only a declaration and not annulment of marriage. But, under Section 12 of the Hindu Marriage Act, since the marriage is not void ab initio, the same requires to be annulled by a decree of nullity. Here, it is not declaration but a positive act of annulment of the marriage by a decree of nullity. Similarly, under Section 3 of the Prohibition of Child Marriage Act also, the court annuls the marriage by a decree of nullity. Thus, Section 12 (1) of the Hindu Marriage Act and Section 3(1) of the Prohibition of Child Marriage Act are in pari materia. Therefore, unless there is a positive decree passed by the competent court annulling the child marriage, the marriage shall be subsisting.
There can be no doubt that parties to a void marriage do not acquire the status of husband and wife at all since the marriage is ipso jure void. It is because of this reason, in section 11 of the Act, the legislature has consciously omitted the expressions ‘husband’ and ‘wife’ and instead has used the expressions either party thereto against the other party. Similarly, in section 12 of the Act, had it been the intention of the legislature to give the parties to a voidable marriage, the full status of husband and wife, the legislature would have used the expressions ‘husband’ and wife’. The omission to use these two expressions in section 12 perhaps, would only reflect the intention of the legislature not to give the full status of the husband and wife to the parties to a voidable marriage, like the spouses of a valid marriage. If we look into the provisions of the Prohibition of the Child Marriage Act, it is obvious that here also, the legislature has consciously omitted the expressions ‘husband’ and ‘wife’. In particular, in section 3 of the Act, the expression ‘contracting party’ has been used. The term ‘contracting party’ is defined in section 2 (c) of the Act which states that a contracting party, in relation to a marriage means either of the parties whose marriage is or about to be thereby solemnized. Thus, to some extent, Section 3 of the Prohibition of Child Marriage Act is in pari materia with Sections 11 and 12 of the Hindu Marriage Act insofar as the expressions referable to the parties to the marriage are concerned. This would again go to strengthen our conclusion that the male who contracts a child marriage of a female child cannot attain the full status of a husband like a husband of a full-fledged valid marriage. To repeat, by the said marriage , though he burdens himself with legal liabilities arising there from, he acquires only limited rights.
Though such a voidable marriage subsists and though some rights and liabilities emanate out of the same, until it is either accepted expressly or impliedly by the child after attaining the eligible age or annulled by a court of law, such voidable marriage, cannot be either stated to be or equated to a valid marriage stricto sensu.
The male who contracts a marriage with a female child falling within the ambit of Section 12 is not a husband of the minor in the legal sense and, therefore, as per The Hindu Minority and Guardianship Act, he will not acquire the status of the natural guardian of such child at all. It is widely accepted world over that child marriage is a human rights violation. Consummation at the young age affects the health of the girl as well as the children born out of the said child marriages. It is because of these reasons, more stringent law by way of the Prohibition of Child Marriage Act was put in place. In this totally changed scenario since we are called upon to interpret the law, we have no hesitation to hold that section 6(c) of the Hindu Minority and Guardianship Act, impliedly stands repealed by the provisions of the Prohibition of Child Marriage Act and so, it cannot be held any more that the bridegroom of a marriage with a female child is the natural guardian of such minor female child. A law cannot be interpreted so as to make it either redundant or unworkable or to defeat the very object of the Act. Thus, by committing an offence punishable under Section 9 of the Act, the adult male cannot acquire the legal status of the natural guardian of the female child.
We hold that Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by the Prohibition of Child Marriage Act. Therefore, we conclude that an adult male who marries a female child in violation of section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child. After the advent of the Prohibition of Child Marriage Act since the male contracting party to a child marriage does not attain the full status of the husband until the child attains the eligible age, like a husband of a full-fledged valid marriage and consequentially since he is not the guardian of the female child of such child marriage, he is not entitled for the custody of the minor.
If the child, who has capacity to determine, expresses her wish not to go with her parents, it may not be appropriate for the court to compel her to go to the custody of her parents . The court may keep her in appropriate custody like, custody in a welfare home for children in need of care and protection set up under the Juvenile Justice [Care and Protection] Act. Here, it should not be misunderstood that the child could be sent either to a special home or an observation home which are meant for juveniles in conflict with law if the welfare of the minor child will be well protected if she is kept in the protective custody of the State, the court can resort to such course the minor, who enters into a marriage is not an offender under any of the provisions of the Prohibition of Child Marriage Act, 2006. Neither the minor girl is an offender under section 18 of the Hindu Marriage Act. The said provision states that every person who procures a marriage of himself or herself …… is punishable. Here, the minor girl does not procure the marriage and instead her marriage is procured by the others. Thus, such a minor girl is not a juvenile in conflict with law. Sections 17 & 19 of the Guardians and Wards Act can also be taken for guidance while deciding the question of custody of a minor girl whose marriage has been celebrated.

Conclusion about child marriage:

After the aforesaid reasoning the court reached to the following conclusive answers to the questions it had framed for answer:

i. The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a competent court under section 3 of the Prohibition of Child Marriage Act. The said marriage is not a valid marriage stricto sensu as per the classification but it is invalid. The male contracting party shall not enjoin all the rights which would otherwise emanate from a valid marriage stricto sensu, instead he will enjoin only limited rights.

ii. The adult male contracting party to a child marriage with a female child shall not be the natural guardian of the female child in view of the implied repealing of section 6(c) of the Hindu Minority and Guardianship Act, 1956.

iii. The male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him even if the female child expresses her desire to go to his custody. However, as an interested person in the welfare of the minor girl, he may apply to the court to set her at liberty if she is illegally detained by anybody.

iv. In a habeas corpus proceeding, while granting custody of a minor girl, the court shall consider the paramount welfare including the safety of the minor girl not withstanding the legal right of the person who seeks custody and grant of custody in a habeas corpus proceeding shall not prejudice the legal rights of the parties to approach the civil court for appropriate relief.

v. Whether a minor girl has reached the age of discretion is a question of fact which the court has to decide based on the facts and circumstances of each case.

vi. The minor girl cannot be allowed to walk away from the legal guardianship of her parents. But, if she expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court cannot compel her to go to the custody of her parents and instead, the court may entrust her in the custody of a fit person subject to her volition. vii. If the minor girl expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court may order her to be kept in a children home set up for children in need of care and protection under the provisions of the Juvenile Justice [Care and Protection] Act and at any cost she shall not be kept in a special home or observation home meant for juveniles in conflict with law established under the Juvenile Justice [Care and Protection] Act, 2000

viii. A minor girl whose marriage has been contracted in violation of section 3 of the Prohibition of Child Marriage Act is not an offender either under Section 9 of the Act or under Section 18 of the Hindu Marriage Act and so she is not a juvenile in conflict with law.

ix. While considering the custody of a minor girl in a habeas corpus proceeding, the court may take into consideration the principles embodied in Sections 17 and 19(a) of the Guardians and Wards Act, 1890 for guidance.  

Delhi High Court’s view on child marriage:

Now the Delhi High Court has also decided the matter and has agreed with the reasoning and conclusions of Madras High Court. However the Delhi High Court has also held that consummation of marrige with minor wife, who is aged below 15 years, amounts to rape u/s 376 of Penal Code and therefore the husband shall be punishable thereunder. Thus in these two States, Child Marriage, irrespective of religion, is clearly Illegal. It appears that the reasoning is sound and it is difficult to come up with a way to seek another interpretation. Let’s continue to progress.

Relevant links to full judgements:

Madras High Court.
Delhi High Court.

Image credit to: Nagarick who may not agree with the views above.