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Report No. 205

Chapter VI

Conclusion and Recommendations

An increasing number of studies have highlighted the extremely harmful and traumatic effects of child marriage. Child marriage below a certain age is blatant child abuse. The Indian Penal Code considers any sexual intercourse with a minor wife below 15 years of age rape. The case of Phulmonee1 which galvanized public opinion against child marriage in the last century ,and for raising the age of consent, was a case in which a girl aged 11 years died of hemorrhage from a rupture of vagina caused by her husband who had forced sex on her.

However, even the present law on child marriage does not address a situation like Phulmonee's. There is no provision in the law to stop a child bride from living with her husband and from being sexually abused apart from other forms of abuse. The Child Marriage Act, in fact lays the foundation for such an abuse by not invalidating any child marriage. Research has further shown how the child bride is more liable to suffer from pregnancy related problems and how high both maternal and infant mortality is in the case of child marriages.

Apart from this child marriage deprives all girl children of their basic fundamental human rights to develop in a natural, healthy environment. It deprives girls of their right to education and to physical and mental and psychological development. It isolates girls from their environment and infringes on their fundamental right to liberty, speech, movement.

To ignore the well-known adverse effects of child marriage vis-à-vis the girl child would be to ignore the manner in which the child bride experiences life and would amount to a denial of the fact that girls are human beings and have certain fundamental rights including the right to life. The adverse health consequences and the violence faced by the girl child below a certain age are factors which outweigh certain 'social' considerations in not invalidating the marriage.

1. Queens Empress v. Huree Mohan Mythee, XVIII Indian Law Reporter (Calcutta) 49 (1891); Sagade, Jaya Child Marriage in India, Oxford University Press, 2005, p. 40.

We further feel that there is no rationale for stipulating different ages for consent to sexual intercourse for a minor bride and for other minor girls. The rationale behind the minimum age of consent is that the girl is not mature enough to know the consequences of sexual intercourse and this rationale would be the same for a minor bride and other minor girls. We therefore, recommend the following.

(i) That child marriage below a certain age, i.e. 16 years of age be made void. However, all the Sections relating to maintenance in Section 4 of the PCMA 2006 regarding maintenance to the female party to the marriage till her remarriage and the provisions relating to child custody and legitimacy of the children in Section 5 and 6 of the PCMA 2006 be made applicable to cases of void marriages also.

(ii) All marriages between 16 and 18 should be made voidable at the option of either party. The sections relating to maintenance, child custody, and legitimacy in Sections 4, 5 and 6 should be applicable to voidable marriages as they are at present. Consequently Section 3(1) and 3(3) of the PCMA 2006 should be amended to incorporate the changes outlined in paras (i) and (ii) above and will read as under:-

"3(1) (i) Any marriage of a child below 16 years of age solemnized after the commencement of this Act will be null and void and may, on a petition be presented by either party thereto against the other party be so declared by a decree of nullity.

(ii) Every marriage of a child between the ages of 16 and 18, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage."



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




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