Report No. 205

Chapter IV

Human Rights and the Prohibition of Child Marriage Act, 2006

Child marriage is thus child abuse and a violation of the human rights of the child. It has an extremely deleterious effect on the health and well being of the child. It is a denial of childhood and adolescence; it is a curtailment of personal freedom and opportunity to develop to a full sense of selfhood as well as a denial of psycho-social and emotional well being and it is a denial of reproductive health and educational opportunities. The girl child is the most affected and suffers irreparable damage to her physical, mental, psychological and emotional development.1

1. Chatterji, Jyotsna, Child Marriage, paper presented at India Social Forum, November 2006, New Delhi.

It is important therefore, to examine whether the new law on child marriage (PCMA) takes into account and seeks to redress the disastrous effects of child marriage in a holistic manner. By making a provision for child marriage protection officers and giving powers to Magistrates to stop mass child marriages and by making child marriages both cognizable and non-bailable the new law certainly seeks to prevent child marriages from taking place and sets a machinery in place to do so.

Further, by providing that ex-parte interim injunction orders can be given by a Magistrate to stop child marriages the new law is a definite improvement over the old law which stipulated that no interim injunction orders could be passed without notice. The enhancement of punishment in Sections 9, 10 and 11 for the guardian and others who promote or permit or fail to stop a child marriage, for a groom above 18 and for those who perform, conduct or direct any child marriage, up to two years from the earlier three months and the increase in fine up to rupees one hundred thousand are also welcome changes.

However, three important criticisms of the new Act have been made by Women's and Human Rights Groups and other concerned individuals. One of the main criticisms of the new Act has been that it does not invalidate a marriage even below a certain age. Thus a child of 10,11,12 or 13 years of age can be married and subjected to sexual and other forms of abuse which normally have lasting and irreversible mental and physical consequences. Merely giving a girl child an option to end the marriage after the age of 15 years may not be sufficient.

Also, though under the criminal law sexual intercourse with a wife under 15 years is punishable, the marriage is still held to be valid under the new Act. It has been proposed by some that the age of consent under the rape laws should be the same as the minimum age of marriage and all marriages below this age should be held void. Some others have proposed that in special circumstances a marriage may be allowed between over 16 years (hereinafter called the relaxed age of marriage) and the age for consent to sexual intercourse and the relaxed age of marriage should be the same and marriages below the age of 16 should be void.

The new Act like the old CMRA continues to stipulate different minimum ages for a girl and a boy to get married. This provision has been criticized by some as being discriminatory, biased and based on patriarchal notions of marriage.1 Another criticism that has been raised vis-à-vis the new Act is the fact that though a boy can opt out of the marriage till the age 32 Sagade, Jaya Child Marriage in India, Oxford University Press, 2005 of 23 years, a girl can only do so till the age of 20 years (2 years after reaching the age of majority).

If we examine the laws in different countries, we see that most countries ban child marriages and punish rape within and outside marriage. However, child marriage continues to be prevalent in most of the developing world. In some countries, though the legal age for marriage is 18 years a person may be allowed to marry before that age in exceptional circumstances.

Otherwise the marriage is void. For instance, in Australia a person can apply to a judge or magistrate for an order allowing him/her to marry if he/she has reached the age of 16 years. 33 However, by 1991 every state in Australia had abolished the marital rape exception.

In New Zealand, a person under 20 years of age but over 16 years old can only marry with parental consent. The age of sexual consent for women is also 16 years.1 There is no exception for marital rape in the Crimes Act, 1961 of New Zealand.2 The marital rape exemption was abolished in 1985.3