Report No. 205
The Petition further lists as a grievance the following:-
(a) Section 5 and 11 of the HMA do not authorize the court to declare a marriage void on the ground that either of the parties is underage.
(b) The exception to section 375 of the Indian Penal Code exempts a husband from the charge of rape if his wife is not under 15 years of age. The Petition sees this as a direct contradiction to the Child Marriage Restraint Act of 1929, under which no child marriage is allowed. However the Petition notices that child marriages are not invalid under the Child Marriage Restraint Act, 1929.
The Petition therefore recommends that there should be a uniform definition of child in all legislations for the sake of uniformity and for the sake of protecting children against child abuse. It argues that the legal minimum age for marriage is 18 under a number of ratified international agreements and the laws of many countries. It argues that all marriages under the age of 18 should be void.
It further prays that the Union of India should be directed to amend the laws relating to age of marriage and minimum age of giving sexual consent so that both are in conformity with each other. The petition prays for deletion of the explanation under Section 375 IPC under which marital rape is not considered rape unless the wife is under 15 years of age.
Amongst the reasons given for declaring marriages under the age of 18 void is the reason that child marriage is usually forced marriage and no full and informed consent can be given by a person under 18. Child marriage is also stated to be akin to child abuse and for many girls is the beginning of frequent and unprotected sexual activity which can have serious health consequences like anemia, maternal mortality, infant mortality, and result in certain diseases like HIV/AIDS. The Petition points out that young girls are more prone to domestic violence and have limited social networks. The rights of young girls like the right to education and the right to an all-round development are violated by child marriage.
It is pertinent to point out that after the Writ Petition was filed the Child Marriage Restraint Act, 1929 has been revamped and the Prohibition of Child Marriage Act, 2006 has been enacted. It is a well known fact that child marriage has a specific gender dimension and the adverse effects of child marriage have a greater impact on a girl child. We need to examine whether the new Act addresses all the concerns relating to child abuse, health, and human rights which are inevitable consequences of child marriage.