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Report No. 205

Chapter V

The Child Marriage Restraint Act, 1929: Legislative History, Judgments, and various Recommendations for Amendments on Child Marriage and age of Child

The Child Marriage Restraint Act was the result of sustained pressure by social reform groups and individuals who felt deeply about the adverse consequences of child marriage. The minimum age of marriage was upwardly revised on several occasions due to social pressure and increased from 10 years to 16 years. In 1940 the age of consent for married and unmarried girls was 15 though the minimum age of marriage became 16.

The rise in age of marriage under CMRA and the age of consent for sexual intercourse under the Penal Code have mostly gone side by side as can be seen from the table below:

Year Age of consent under s. 375, 5th clause, IPC Age mentioned in the Marital Rape Exception to s. 375, IPC Minimum age of marriage under the Child Marriage Restraint Act, 1929
1860 10 years 10 years --
1891 (Act 10 of 1891) after the amendment of I.P.C.) 12 years 12 years --
1925 (after the amendment of I.P.C.) 14 years 13 years --
1929 (after the passing of the Child Marriage Act) 14 years 13 years 14 years
1940 (after the amendment of the Penal Code and the Child Marriage Act) 16 years 15 years 15 years
1978 16 years 15 years 18 years

The CMRA law, however, remained ineffective for a variety of reasons. In a study by UNICEF in 2001 it was found that the number of prosecutions did not exceed 89 in any one year.1 According to the National Crime Bureau Records 2005, 122 incidences were reported in the country under the Child Marriage Restraint Act in 2005, compared to the 93 cases that were reported in 2004. 2

These statistics are obviously not an accurate reflection of the number of cases of child marriage which are occurring in the country. Most cases of child marriage are not being reported and/or being ignored by the police and government authorities. Even from the reported 122 cases, only 45 resulted in conviction.3

1. Black, Maggie, Early Marriage, Child Spouses, UNICEF, Innocenti Research Centre, Digest no. 7 (2001), p. 9.

2. National Crime Records Bureau, Crime in India 2005, , visited on November 2007.

3. National Crime Records Bureau, Crime in India 2005, , visited on November 2007.

With regard to the question of validity of marriages performed in violation of the age requirement prescribed by the Child Marriage (Restraint) Act, the judiciary has taken a well settled stand. Starting from the earliest case that came up in 1885 to a recent judgment of 2006, the pronouncements of various High Courts and the Supreme Court have approved the validity of such marriages. A recent judgment of the Delhi High Court reiterated that marriages solemnized in contravention of age prescribed under Section 5(iii) of the Hindu Marriage Act, 1965 are neither void nor voidable.1

The court held that the judgment was based on public policy and the Legislature was conscious of the fact that if marriages, performed in contravention of the age restriction, are made void or voidable, it could lead to serious consequences and exploitation of women. The view that child marriages were valid was upheld in many other judgements like Durga Bai v. Kedarmal Sharma2, Shankerappa v. Sushilabai3, Smt. Lila Gupta v. Laxmi Narain and others4, Rabindra Prasad v. Sita Dass5, William Rebello v. Angelo Vaz6, Neetu Singh v. State & others7 and Ravi Kumar v. The State & Anr. 8

1. Manish Singh v. State Govt. of NCT, 2006 (1) HLR 303.

2. Durga Bai v. Kedarmal Sharma, 1980(Vol. VI) HLR 166.

3. Shankerappa v.Sushilabai, AIR 1984 Kar 112.

4. Smt. Lila Gupta v. Laxmi Narain and others, 1978 SCC (3) 258.

5. Rabindra Prasad v. Sita Dass, AIR 1986 Pat 128.

6. William Rebello v. Angelo Vaz, AIR 1996 Bom 204.

7. Neetu Singh v. State & others, 1999(1) Vol. 39 HLR 466.

8. Ravi Kumar v. The State & Anr., MANU/DE/1497/2005.

Under the old CMRA there were very few convictions. It has been said that "the courts have been reluctant to find adults guilty under the Act. It has been held, for instance, that a guest escorting the bride and reminding others to raise a customary chorus cannot be punished under the Act.1 Negotiation and preparation for the marriage is also not punishable.2 Section 5 of the Act, which makes the person who conducts, directs, or performs the marriage liable, has been very narrowly construed by the court.

It has also been held by the courts that for a person to be punished under the Act it must be proved that the marriage has been duly performed in accordance with all the religious rites applicable to the form of marriage.3 This kind of reasoning allows an accused party to raise the plea that the marriage has not been performed according to applicable ceremonies. Though there have been some positive judgments under the Act saying that deterrent punishment should be awarded, courts have given extremely light punishments and let off the accused with small fines.4"5

1. Emperor v. Fulabhi Bhulabhai Joshi and others, AIR 1940 Bombay 363.

2. Sheikh Haidar Sheikh Rahimmo Attar Musalman v. Syed Issa Syed Rahiman Musalman and others, AIR 1938 Nagpur 235.

3. Khushalchand Janki Prasad v. Shankar Pandey Gaya Prasad, AIR 1963 Madhya Pradesh 126.

4. Mt. Jalsi Kuar & others v. Emperor, AIR1933 Patna 471 and Kondepudi Sriramamurthi v. State of Andhra Pradesh and another, AIR 1960 Andhra Pradesh 302.

5. Singh, Kirti and Diviya Kapur, Law, Violence and the Girl Child, Heath and Human Rights and, An International Journal, Vol 5. No.2 , 2001, p.18.

Under the old CMRA a police officer had no powers to arrest without a warrant or an order of the Magistrate. The Act also prohibited complaints after the first year of marriage and therefore made prosecution of child marriages extremely difficult.1 However, while most of these issues have been dealt with and the present PCMA holds all those who are participating in and abetting a child marriage guilty and provides harsher punishment, judicial attitudes will also have to change and see the issue of child marriage from the point of view of the girl child.

Further it has been found that there is a complete lack of awareness of the law relating to child marriage. It is therefore, extremely important for the government to publicize the contents of the present Act and create awareness about the ills of child marriage. Consequent changes will also have to be made in The Hindu Marriage Act, 1955 to have equivalent punishment under Section 18 of the Act.2

1. CEDAW, General REcommendation 21, UN GAOR, 1994, Doc. No. A/47/38.

2. Presently section 18 of the Hindu Marriage Act stipulates a lesser punishment of upto 15 days imprisonment of fine upot Rs. 1,000.

Under the Special Marriage Act however, Section 4(c) provides that at the time of marriage the male must have completed the age of 21 years and the female the age of 18 years. A marriage solemnized in contravention of this clause is treated as void and can be so declared under section 24 of the Act. Thus no provision makes a minor's marriage possible under this Act and a child marriage is treated as void and is subject to the penal provisions of CMRA. Marriages in the State of Goa are governed by the family laws of Goa, Daman & Diu.

Under the family law in Goa there is a chapter dealing with Civil Marriage and its Solemnization.1 Article 3 provides that all Portuguese shall solemnize the marriage before the respective officer of civil registration under the conditions and in the manner established in Civil Law, and only such a marriage is valid. Article 4 (3) provides that males below the age of 18 years and females below the age of 16 years shall not contract. According to Article 5, consent of parents is necessary for marriage. 2

1. See William Rebello v. Jose Angelo Vaz, AIR 1996 Bom 204.

2. See William Rebello v. Jose Angelo Vaz, AIR 1996 Bom 204.

Renunciates of Pondicherry are governed by the French Civil Code, Chapter I, Article 144 of the French Civil Code provides that a man cannot contract a marriage before he has completed 18 years and a woman till she has completed 15 years of age.

The above study makes it clear that under Indian laws, the minimum age for marriage is prescribed as 21 years for males and 18 years for females. In spite of these legal provisions, child marriage is still widely practiced and a marriage solemnized in contravention of these provisions is not void even under the new PCMA, 1929, the Hindu Marriage Act, 1955 and also under the Muslim Law. If the wife is below 15, then the husband can be charged for the offence of rape.

However, here also the law makes a distinction between a wife below 12 and a wife over 12. Under Section 376 when the wife is below 12, the penalty is severe, i.e. imprisonment of either description for a term, which shall not be less than seven years but which may be for life or for a term which may extend to 10 years and fine. If, however, the wife is not under 12, i.e. she is above 12 but below 15, the punishment is milder i.e. imprisonment of either description for a term which may extend to two years or fine or both.

The 84th Report of the Law Commission had recommended an increase in the minimum age of consent and the minimum age in the Exception Clause. The Commission had recommended as follows:

"2.20. The question to be considered is whether the age should be increased to 18 years. The minimum age of marriage now laid down by law (after 1978) is 18 years in the case of females and the relevant clause of section 375 should reflect this changed attitude. Since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual intercourse with a girl below 18 years should also be prohibited."

The laws relating to rape were again considered by the Law Commission in its 172nd Report on "Review of Rape Laws" (2000). The Law Commission before submitting its Report circulated a draft of proposed changes. The National Commission for Women submitted its recommendations on the Draft. In respect of provision relating to sexual intercourse with one's own wife, the NCW suggested that "marital sexual intercourse by a man with his own wife without consent should also be considered as sexual assault."1

Certain Women's Groups including the All India Democratic Women's Association and Sakshi had also recommended that marital rape be recognized as rape. Though the Law Commission did not agree with this suggestion it recommended that the age of consent for both unmarried and married women should be 16 years, below which sexual intercourse should be considered rape and punished accordingly.

1. See The National Commission for Women Recommendations available on its website: (visited on November 2007).

The National Commission for Women in its report in 1995-96 had recommended that child marriages be declared void. It had further recommended that there should be compulsory registration of marriages and emphasized on free and compulsory education till the age of 14. The Commission felt that all these steps could play an important part in checking child marriages.

The Central Government after consulting the State Governments introduced the Prevention of Child Marriage Bill, 2004 and this was referred to the department related Parliamentary Standing Committee on Personnel, Public Grievances, Law & Justice for examination and report. The Committee has proposed a common marriageable age for both the sexes i.e., 18 years so as to avoid any serious consequences to the individual and the society as a whole.

The Committee has further recommended that child marriage should be void ab initio and not voidable at the option of either contracting party keeping in view the inhibitions that parties have against court proceedings. The Committee has further recommended initiating social measures such as creation of rehabilitation fund for providing shelter, food, education, health and security for the victims of child marriages and also recommended active support and coordination of officials of Panchayat, Tehsil, District and State levels, NGOs ,and social groups and agencies.

Another recommendation made by the Committee was that the punishment laid down in the Hindu Marriage Act for conducting child marriages should be raised significantly in order to bring it at par with the `penal provisions proposed in the new legislation.

The Committee has also recommended compulsory registration of marriages and called for active involvement of NGOs and other civil agencies to prevent the occurrence of child marriages. It has suggested that a proper system for prevention of child marriages should be set up to deal with the issue in a holistic manner.

It has also been recommended that one way of curbing the phenomenon of child marriages would be to register all marriages. The Supreme Court in the case of Smt. Seema v. Ashwani Kumar1 observed that compulsory registration of marriages would be a step in the right direction as child marriage was still prevalent in many parts of the country. The Court directed that steps for registration of marriage should be taken by the State Governments who had not yet passed Acts for this purpose. The States were further asked to invite objections from the public and make registration of marriages compulsory for all citizens regardless of community 2 within three months of its order dated 19.12.2007.

1. Smt. Seema v. Ashwani Kumar, 2007(12) Scale 578.

2. The Supreme Court noted that A.P., Bihar, Chattisgarh, Goa, M.P., Karnataka, Maghalaya, Mizoram, Rajasthan, Sikkim, Tamil Nadu, Tripura have already enacted laws for Registration of Marriages.

The third issue raised by the petitioner is to make a uniform definition of 'child' in all legislations in conformity with the Convention on the Rights of the Child. Since different legislations have come into existence with different and specific purposes, a uniform definition of a child may not be possible. For instance, the age of consent for sexual intercourse would be lower than 18 because consensual sex above the age of 16 is fairly widespread and routine. Similarly the object behind the Child Labour (Prohibition & Regulation) Act, 1986 is to ban child labour completely below the age of 14 and regulate it above that age and therefore the definition of a child is in tune with these objectives.

Every law provides its own definition of the term 'child'. Some refer to a child as a person who has not completed the age of 18 years and in some statutes a child is defined as a person below 16 years and in other statutes it is 14 years. Some of such statutes are as under:

1. As per the Child Marriage Restraint Act, 1929, a child is a person who if a male has not completed 21 years of age, and if a female, has not completed 18 years of age.

2. The Immoral Traffic (Prevention) Act, 1986 defines child as a person who has not completed the age of 16 years and a minor means a person who has completed the age of 16 years but has not completed the age of 18 years.

3. A person is deemed to have the majority on completion of 18 years under the Indian Majority Act, 1875.

4. A child is a person below 18 years of age under the Juvenile Justice (Care and Protection of Children) Act, 2000.

It is urged in the petition that there should be a uniform definition of 'child' in all statutes relating to child welfare and their rights. However at the present time it is not feasible to have a uniform definition of child as the different legislations serve different objectives and purposes. Each act should be examined on its own to deter whether the definition of the child is Justified. As far as the PCMA is concerned however, we feel that there is no rationale basis for having different ages for marriage between boys and girls as discussed in detail earlier.

Proposal to amend the Prohibition of Child Marriage Act, 2006 and other allied Laws Back

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