Report No. 270
6.10 Conflict of laws:
However, in the absence of a clear status for child marriages - be it void, voidable or valid - the required age for registration is a question that needs to be decided and answered by comparing the freedom and protection given to age relaxations under all personal law and the social responsibility of bringing reform through law.
6.11 Medical Termination of Pregnancy Act 1971 provides that a pregnancy of a woman, who has not attained the age of 18 years shall not be terminated except with the consent in writing of her guardian. Similarly, Dowry Prohibition Act 1961 also acknowledges that marriages do in fact, despite the Child Marriages Restraint Act, take place even when parties are under the age of 18. The Dowry Prohibition Act provides that if the dowry was received when the bride was a minor, the dowry should be held in trust by her guardian pending the transfer when she attains the age of 18. Further, even under Criminal law while sections 375, 376 Indian Penal Code 1861, consider sexual intercourse with a minor as rape, they also contain the exception that 'Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape'.
6.12 Thus, age of consent is 16, age for marriage is 18, however, if married, consent for sexual intercourse is deemed at 15. Under the Age of Consent Act, 1891, the age of consent for sexual intercourse for all girls, married or unmarried was raised from ten to twelve years in all jurisdictions and its violation was subject to criminal prosecution as rape. The Protection of children from sexual offences, Act 2012 defines child as below 18 years of age. The Juvenile Justice (Amendment) Act, 2015, section 2(14) (xii) stipulates that a child 'who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage' is a child in need of care and protection.
6.13 The Majority Act, 1875 makes it clear that the said Act does not apply in case of marriages, etc. So far as the Islamic Law is concerned, there have been conflicting views regarding the marriage of parties below 18 years of age. Under the Muslim Personal Law, it is provided that if a Mohammeden who has attained puberty and is of sound mind can enter into contract of marriage. "Puberty"34 and majority are one and the same in the Muslim Law.
The presumption is that a person attains majority at 15 but the Hedaya lays down that the earliest period for a boy is 12 years and a girl is 9 years. Majority is presumed among the Hanafis on the completion of the fifteen years, in the case of both males and females, unless there is any evidence to show that puberty was attained earlier. In the case of a Shia female, the age of puberty begins with menstruation. Their Lordships of Privy Council also held in Nabad Sadiq Ali Khan v. Jai Kishori 35, (a case related to a Shia girl) that the age of Puberty for a girl is 9 years. But, according to Hedaya, :
The puberty of a boy is established by his becoming subject to nocturnal emission, his impregnating a woman or emitting in the act of condition; and if none of these be known to exist, his puberty is not established until he have (sic. has) completed his eighteenth year. The puberty of a girl is established by menstruation, nocturnal emission, or pregnancy; and if none of these have taken place, her puberty is established on the completion of her seventeenth year."
6.14 Thus, the conflict of laws is not simply between different personal laws but also various other enactments relating to child marriage, dowry prohibition and medical termination of pregnancy among others. Thus while Bill does not aim at eliminating the diversity of personal laws, or regional differences seeking merely the registration of marriages regardless of the law under which the marriages are recognised or solemnised, it recommends that these various overlapping and contradicting legislations be borne in mind while framing the rules of registration.
Back
