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Seminar Project on ‘Juvenile Justice: Child Ch ild Marriage in India.’
SEMINA P!JEC": #Juvenile Justice in the conte$t o% Child Marriage in India&
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Seminar Project on ‘Juvenile Justice: Child Ch ild Marriage in India.’
ACKNOWLEDGEMENT The project on this topic of Child Marriage in India was a challenging task. The coplication in!ol!e" in the s#$ject is of iense agnit#"e. %nterpretation of &tat#tes $eing the sole of the legal s'ste helps in the application of Law in fact#al sit#ations is !ital in the aking of a goo" Law'er. (ence "oing "oing a project project of s#ch s#ch agnit agnit#"e #"e re)#ir re)#ires es g#i"an g#i"ance ce $' the s#$ s#$jec jectt teache teacher. r. The enlight enlighteni ening ng e*perie e*perience nce pro!i"e" pro!i"e" $' ' teacher teacher Dr. Mohd. Usman Qazi pro!e" to $e a contin#es g#i"ing so#rce in this en"ea!or. % owe hi sincere gratit#"e+ for his #ntiring an" constant aca"eic an" intellect#al s#pport. (is inspiration tickles "own e!er' ner!e in o#r s 'ste. % wo#l" also like to take "#e cogni,ance of the efforts of ' classates who s#pport e an" alwa's help e in e!er' wa' the' can.
Sahil Ahmad
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Seminar Project on ‘Juvenile Justice: Child Ch ild Marriage in India.’
ACKNOWLEDGEMENT The project on this topic of Child Marriage in India was a challenging task. The coplication in!ol!e" in the s#$ject is of iense agnit#"e. %nterpretation of &tat#tes $eing the sole of the legal s'ste helps in the application of Law in fact#al sit#ations is !ital in the aking of a goo" Law'er. (ence "oing "oing a project project of s#ch s#ch agnit agnit#"e #"e re)#ir re)#ires es g#i"an g#i"ance ce $' the s#$ s#$jec jectt teache teacher. r. The enlight enlighteni ening ng e*perie e*perience nce pro!i"e" pro!i"e" $' ' teacher teacher Dr. Mohd. Usman Qazi pro!e" to $e a contin#es g#i"ing so#rce in this en"ea!or. % owe hi sincere gratit#"e+ for his #ntiring an" constant aca"eic an" intellect#al s#pport. (is inspiration tickles "own e!er' ner!e in o#r s 'ste. % wo#l" also like to take "#e cogni,ance of the efforts of ' classates who s#pport e an" alwa's help e in e!er' wa' the' can.
Sahil Ahmad
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Seminar Project on ‘Juvenile Justice: Child Ch ild Marriage in India.’
CONTENT Introduction no. '(
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Why is Child Marriage Still Rampant in India? no.08
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Conseuences o! Child Marriage Conseuences Page no.12 Child marriage" # glo$al pro$lem no. )* %egal &rame'or( on Child Marriage Page no. )( Criminal and Marriage %egislations Page no. +* Identi)cation o! *aps and Pro$lems Page no. +, Conclusions Page no. *'
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’
-#!enile -#stice Chil" Marriage in %n"ia /op#lar 0elief in %n"ia a$o#t 1chil" arriage2 till recent if not presentl' is that 3....arriage+ sa's an einent "octor of law+ 1is !iewe" as a gift of the $ri"e $' her father or other g#ar"ian to the $ri"egroo. The arital #nion is th#s a "i!ine #nion4 it is an act of Go" an" not of an.56 3%nfant arriage has pre!aile" in %n"ia at least fro the "a's of Man# 7well8nigh three tho#san" 'ears9+ an" the (in"oos 7sic9 as a $o"' ha!e #p to this "a' reaine" content with the instit#tion. The' ha!e not+ to an' apprecia$le e*tent+ s#ffere" in ph'si)#e nor "eteriorate" in orals. Three tho#san" 'ears is a prett' long perio"+ $#t all these 'ears ha!e not re!eale" to #s an' great e!ils as the necessar' effects of the instit#tion of infant arriage+ $e'on"+ perhaps+ a little too rapi" increase of pop#lation.5 : This $elief pla's an iportant role in s#$stantiating the concept of Chil" arriage in %n"ia.
Introduction Earl' arriage of chil"ren+ partic#larl' the girl chil"+ is not an #ncoon practice in o!er ;< co#ntries+ ainl' in Sub-Sahara Africa and South and South-East Asia, including India, Pakistan and Bangladesh. A significant n#$er of these co#ntries are signatories to !ario#s international
con!entions an" ha!e g#arantee" !ario#s rights of chil"ren+ incl#"ing the prescription of the legal ) Child Marriage in India- aj Coomar o , The North American Review - /ol. )(0- No. *,* 1!ct.- ),,,2- 33. ()45(+* + Su3ra ) Page ,
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ ini# arriage at 6=. %n fact+ Caeroon has gone a step ahea" an" prescri$e" :6 'ears as ini#
age for the arriage of girls. %n spite of this+ a staggering >: per cent of woen are alrea"' arrie" $' the age of 6=. Accor"ing to a recent ?N%CE@ report 7:<<9 the percentage of girls age" $etween 6 an" 6B 'ears who are arrie" in "ifferent co#ntries is Congo 7;9+ Niger 7<9+ Afghanistan 7;9+ 0angla"esh 769+ %ra) 7:=9+ while in Nepal ;< girls get arrie" $efore the' t#rn 6 'ears. The pro$le of chil" arriage in %n"ia is a cople* one $eca#se of religio#s tra"itions+ social practices+ econoic factors an" $lin" $eliefs. &ince there are no references a!aila$le of chil" arriage in ancient %n"ia+ it is "iffic#lt to trace the practices origins. %nci"ents of chil" arriage are restricte" to few co#nities in northern states where chil" arriage ore pre!alent than in so#th. The National @ail' (ealth &#r!e' 7N@(&98%%% estiates that ; of woen in %n"ia+ age" :<8:;+ were arrie" $efore the age of 6=. This g#re stoo" at F in r#ral areas an" F< in #r$an areas. On the whole+ this is a "ecline fro the stat#s registere" in N@(&8%4 $#t o#r pop#lation+ especiall' $etween :< an" :;+ has increase" since N@(&8%+ th#s offsetting an' fall that we see in percentage ters. Accor"ing to the District Le!el (o#sehol" &#r!e' :<<8<=+ there are eight states in %n"ia where ore than < of the woen $etween :< an" :; 'ears ha!e $een arrie" $efore the legal age+ "#ring the last "eca"e or so alone. Accor"ing to the National /op#lation / olic'+ 3o!er < of girls arr' $elow the age of 6=+ res#lting in a t'pical repro"#cti!e pattern of 1too earl'+ too fre)#ent+ too an'2+ res#lting in a high %M5 7National Coission on /op#lation :<<<9. %n"ia has ratie" !ario#s international con!entions an" treaties that o$ligate aen"ents in the legal fraework in or"er to g#arantee the rights of chil"ren an" pre!ent chil" arriages. The Universal Declaration of uman !ights, "#$% + states+ “marriage shall be entered into only with the free and
full consent of the intending spouses”.F &he 'onvention on the Elimination of All (orms of Discrimination against )omen *'EDA)+, ratie" $' %n"ia in 6BBF+ states
* Article )6 at htt3:77888.un.org7en7documents7udhr7 1last vie8ed on +* Jul +')+2. Page -
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory! &he 'onvention on the !ights of the 'hild *'!'+ "enes a chil" as a person $elow 6= 'ears an"
i"enties the rights of chil"ren. A woan2s right to free an" infore" choice in the atter of a arital relationship is a f#n"aental h#an right which is sec#re" $' the pro!isions of a n#$er of international h#an rights instr#ents+ !i,+ Article :F of the International 'ovenant on 'ivil and Political !ights *I''P! 9>+ Article 6< of the International 'ovenant on Economic, Social and 'ultural !ights *I'ES'!+ an" Article of the International 'onvention on the Elimination of All (orms of !acial Discrimination *'E!D+ %. These international co!enants an" treaties en#erate
!ario#s h#an rights stan"ar"s for the protection of chil"ren+ choice of relationship an" the age at arriage+ an" infor the laws on chil" arriage in %n"ia. (owe!er+ as "ata shows+ chil" arriages are wi"el' pre!alent in o#r co# ntr' "espite the pro#lgation of !ario#s laws+ largel' "#e to well8entrenche" social "oga. There is treen"o#s hostilit' aong "ifferent sections of societ' towar"s an' opposition to this practice+ an" #nwillingness to a""ress this iss#e. A case in point is that of 0hanwari De!i fro 0hateri !illage in ajasthan. &he was working with the Woen2s De!elopent /rograeB tr'ing to co$at the practice of chil" arriage an" in the process attracte" the ire of the #pper castes in her !illage who gang rape" her as 3p#nishent5 for opposing a long8stan"ing c#sto. ( Article )61+2 at htt3:77888.un.org78omen8atch7da87ceda87 1last vie8ed on +* March +')*2. 4 Article ) de9nes a child. See htt3:77888+.ohchr.org7english7la87crc.htm 1last vie8ed on+* March +')*2.
6 htt3:77888+.ohchr.org7english7la87cc3r.htm 1last vie8ed on +* March +')*2. 0 htt3:77888+.ohchr.org7english7la87cescr.htm 1last vie8ed on +* March- +')*2. , htt3:77888+.ohchr.org7english7la87cerd.htm 1last vie8ed on +* March +')*2. Page .
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ @#rtherore+ the state go!ernent ref#se" to take an' action against the perpetrators "espite !ario#s
pleas an" protests $' woen2s gro#ps. (er case e$o"ies the se!ere challenges facing those in %n"ia who work for the eliination chil" arriage. )h is 'hild /arriage Still !am0ant in India1
There are an' factors which s#stain the contin#ation of the practice of chil" arriage in %n"ia. /o!ert' an" social nors inten"e" to ens#re fail' hono#r an" protect girls. These factors anifest thesel!es in the following collecti!e an" in"i!i"#al attit#"es an" $eliefs which are still wi"esprea" in %n"ia ?narrie" girls are consi"ere" a lia$ilit' to fail' hono#r. Chil" arriage is a wa' to ens#re chastit' an" !irginit' of the $ri"e+ th#s a!oi"ing potentiall' "ishono#ring o f the fail'.
Do2r 0er0etuates child marriage as it enco#rages parents to arr' off their girls earl' to a!oi"
an increase in the "owr' ao#nt 7ore e"#cate" girls #s#all' re)#ire a higher "owr'9. Altho#gh gi!ing or recei!ing "owr' is a crie #n"er the Dowr' /rohi$ition Act+ 6B>6+ it is still a coon practice.
3irls are considered an economic burden for their fail' of origin an" a 3para'a "han5 or
propert' that $elongs to the arital fail'. (ence+ the ten"enc' is to arr' girls as earl' as possi$le an" re"#ce in!estent in their "a#ghters.
Investing in girls education is not considered 2orth as girls will $e o!ing to the groo2s
ho#sehol" an" will $e eplo'e" in ho#sehol" chores. On the other han"+ the liite" e"#cation an" li!elihoo" options for girls lea" to arriage $eing one of the few options for girl2s f#t#re.
)ith the aim of reducing the costs of 2edding ceremonies parents often arr' off their chil"ren
earl' sei,ing the opport#nit' of collecti!eHco#nit' arriage cereonies+ arr'ing off all girlsH"a#ghters in one cereon' when there are #ltiple "a#ghters in a fail'+ an" co#pling a we""ing with other cele$rations I s#ch as f#nerals 8 hel" in the co#nit'.
"he ;omen’s e u3 develo3ment issues.
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ Im0unit, 2eak la2 enforcement and limited kno2ledge of the la2 $' societ' perpet#ate chil"
arriage.
&kewe" se* ratio in soe states has le" to trafficking of girls in the nae of arriage.
This paper e*aines the polic' "e$ates an" legal fraework "ealing with chil" arriage+ an" anal'ses the gaps therein. %t tries to #n"erstan" the historical an" socio8legal conte*t within which the "e$ates on chil" arriage are locate"+ an" the !ario#s associate" aspects like age of "iscretion+ g#ar"ianship an" elopeent that pla' o#t in j#rispr#"ence. 0' e*aining the legal an" rights iplications+ it tries to capt#re how these "e$ates ha!e f#rthere" the o!eent against the practice of chil" arriage. /olic' De$ate on Chil" Marriage The report 3Towar"s E)#alit'5 with regar" to chil" arriage states We recoen" legislation prohi$iting co#rts fro granting an' relief in respect of a arriage solenise" in !iolation of the age re)#ireents prescri$e" $' law #nless $oth the parties ha!e coplete" the age of 6= 'ears 7Go% 6B; 66;9. The Go!ernent of %n"ia intro"#ce" se!eral polic' initiati!es to a""ress the pro$le of earl' arriages. The National /op#lation /olic' :<<< prootes "ela'e" arriage for girls an" the National /olic' for the Epowerent of Woen+ :<<6+ recognises the critical nee" of en an" woen to s#ita$l' a""ress the iss#es of earl' arriage an" ais to eliinate chil" arriage $' :<6<. The National Jo#th /olic' :<+ an" other allie" laws in :<<= 7Law Coission of %n"ia :<<=9. One of the recoen"ations was that the ter se*#al assa#lt sho#l" $e #se" in place of rape an" sho#l" incl#"e all fors of penetration+ $oth h#an an" o$ject. The :<<= report recoen"e" that 3chil" arriage $elow 6= for $oth $o's an" girls sho#l" $e prohi$ite" an" that arriages $elow the age of 6> $e a"e !oi" while those $etween 6> to 6= $e a"e !oi"a$le5 7i$i" 9. %n :<<;+ in or"er to ens#re stringent laws "ealing with the iss#e of chil" arriage+ the /re!ention of Chil" Marriage 0ill was intro"#ce" in the aj'a &a$ha an" was referre" to the /arliaentar' &tan"ing Coittee to e*aine the pro!isions of the $ill. The report of the /arliaentar' &tan"ing Coittee 7:<<9 took cognisance of the ann#al reports of the National
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ Coission for Woen 7NCW9+ the National (#an ights Coission 7N(C9 an" the !iolent
attack on an %ntegrate" Chil" De!elopent &er!ices 7%CD&9 s#per!isor fro Ma"h'a /ra"esh.6< The NCW an" N(C in their "raft $ill66 recoen"e" 7i9 7ii9 7iii9
the p#nishent pro!i"e" #n"er the Act sho#l" $e a"e ore stringent4 arriages perfore" in contra!ention of the Act sho#l" $e a"e !oi"4 an" the offences #n"er the Act sho#l" $e a"e cognisa$le.
Altho#gh this $ill was not passe" at that tie+ it "i" $ecoe the $asis for the Prohibition of 'hild /arriage Act, which was passe" #ch later in :<<>6:. aj'a &a$ha "e$ates on the iss#e re!eal that
there has $een ina"e)#ate "isseination an" ipleentation of the /rohi$ition of Chil" Marriage Act 7hereinafter referre" to as 3Chil" Marriage Act+ :<<>59+ aong Me$ers of /arliaent 7M/s9. On 6> A#g#st :<6<+ an M/ pose" a starre" )#estion to the inister of woen an" chil" "e!elopent 7MWCD9 regar"ing strict ipleentation of the Chil" estraint Act+ 6B:B6F+ an" in Ma' :<< another )#estion regar"ing effecti!e ipleentation of the Chil" Marriage estraint Act 7CMA9+ 6B>+ was
)' Sha>untala /erma 8ent to village ?hangarh in ed %or 3roo% o% the girls’ ages- =ut 8as %orced to leave a%ter mem=ers o% the %amilies threatened her. ater that evening- a 3erson- armed 8ith a s8ord- came to her house and attac>ed her. As she tried to 3rotect hersel%- her one hand 8assevered and the other cut. In addition- she received serious injuries to the head. She 8as rushed to a hos3ital in Indore 8here she =attled %or her li%e. A%ter a )65hour o3eration- her severed hand 8as reattached = rejoining the arteries- =ones- veins- and nerves. She had s3ent )' das e$3laining to the locals 8h child marriage could 3rove harm%ul to their children =ut to no avail.
)) "he Prevention o% Child Marriage ?ill- +''(- a%ter =eing introduced in the aja Sa=ha in
)+ Dor aja Sa=ha de=ates on the Prevention o% Child Marriage ?ill- +''(- that 8as eventuall amended and 3assed as the Prohi=ition o% Child Marriage Act- +''6- see htt3:77rsde=ate.nic.in7=itstream7)+*(460,7*'))+7)7P< +')()++''6)03+(3*6)++.3d%FsearchG #Prohi=ition o% Child Marriage- +''6& 1last vie8ed on )( March- +')*2.
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ raise"6;+ $oth M/s #naware that a new legislation has $een in force since :<<. A few+ howe!er+ ha!e
raise" signi cant )#estions. G'an /rakash /ilania+ "#ring the aj'a &a$ha+ aske" the MWCD whether the Chil" Marriage Act+ :<<>+ ha" $een s#ccessf#l in achie!ing its ai an" if not the action propose" to $e taken. Krishna Tirath+ the MWCD+ state" that the s#ccess of the Chil" Marriage Act+ :<<>+ effecti!e fro No!e$er :<<+ shall $ecoe known after the p#$lication of the :<66 Cens#s res#lts. &he also stresse" that awareness generation+ "isseination an" ipleentation of the Chil" Marriage Act+ :<<>+ la' with the states an" the go!ernent ha" written to the to appoint prohi$ition ofcers #n"er the Act+ frae r#les+ an" to take all possi$le steps to pre!ent chil" arriages. The MWCD also pointe" o#t that chil" arriage is a social phenoenon+ which cannot $e tackle" $' legislati!e inter!entions alone. What is re)#ire" is a change in in"set an" a"!ocac'+ with a foc#s on the e!il effects of this practice.
'onse4uences of 'hild /arriage Chil" arriage is linke" to a series of negati!e conse)#ences for 'o#ng girls in societ'. %nfact+ 3Accor"ing to the :<<6 cens#s+ nearl' F<<+<<< girls #n"er 6 'ears ga!e $irth to at least one chil" %t reporte" that chil" $ri"es often showe" signs s'ptoatic of chil" se*#a l a$#se an" post8tra#atic stress. Chil" arriages also liite" girls access to e"#cation an" increase" their health risks+ since the' ha" higher ortalit' rates an" e*pos#re to (%HA%Ds than girls arrie" after 6=5 7?.&. Departent of &tate+ Co#ntr' eports+ :<<>9. Chil" arriages ha!e se!ere ipact on the o!erall health an" "e!elopent of the girls. Marr'ing earl' places girls at greater health risks8 one of the greatest $eing earl' pregnanc' an" chil"$irth which gi!e ca#se to serio#s repro"#cti!e health pro$les an" contri$#tes to high Maternal Mortalit' ates 7MM9 an" %nfant Mortalit' ates 7%M9.
)* Dor aja Sa=ha
)(
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ /aternal /ortalit !ate *//!+5 eports re!eal that MM in %n"ia is still high with ore than
6<<+<<< woen in %n"ia "'ing e!er' 'ear fro ca#ses relate" to pregnanc ' an" chil"$irth. A woan "ies e!er' se!en in#tes in the co#ntr' "#e to coplications relate" to pregnanc '. The Maternal Mortalit' atio for %n"ia 7:<<68
ajor threat to their health an" life e*pectanc'.Two illion woen worl"wi"e s#ffer fro o$stetric fist#la+ a "e$ilitating coplication of chil"$irth especiall' coon aong ph 'sicall' iat#re girls 7%CW+ :<<>9. Accor"ing to The &tate of the Worl"s Chil"ren eport 7&OWC9 :<<+ &o#th Asia E"ition+ 3%n %n"ia+ one o#t of e!er' three a"#lt woen is #n"erweight an" therefore at risk of "eli!ering $a$ies with low $irthweight5. Infant /ortalit !ate *I/!+5 Chil" arriage not onl' affects the girl chil" alone $#t also the chil"
$orn "#e to earl' pregnanc'. The others 'o#ng age an" lack of proper n#trition lea" to an iproper growth of the $a$'. &o#rces in"icate that the o!erall infant ortalit' rate "eclines sharpl' with increasing e"#cation of others+ as e*pecte"+ ranging fro a high of = "eaths per 6+<<< li!e $irths for illiterate others to a low of FF "eaths per 6+<<< li!e $irths for others who ha!e at least coplete" high school 7N@(& : %n"ia9. Increase in S&Ds 6 I78AIDS cases5 Jo#ng woen are arrie" off to partners who are #ch ol"er.
%n s#ch arriages+ woen ha!e less "ecision8aking power in se*#al $eha!io#r an" practices+ increasing their risk of repro"#cti!e an" se*#all' transitte" A &t#"' on5 Chil" Marriage in %n"ia &it#ational Anal'sis in Three &tates > of woen+ who were arrie" less than 6= 'ears face" Doestic iolence. Jo#ng girls lack knowle"ge a$o#t #se an" #sef#lness of contracepti!es which akes the !#lnera$le to infections like (%HA%D& an" other "iseases. 7ulnerable to domestic violence5 A ?N%CE@ st#"' points o#t that %n"ia has one of the highest le!els
of "oestic !iolence where$' > of woen+ who were arrie" less than 6= 'ears face" "oestic !iolence. %t has the highest le!els of "oestic !iolence cases aong woen copare" to other co#ntries like a$ia+ &o#th Africa+ Ca$o"ia+ etc 7Earl' Marriage :<<+ ?N%CE@9. Doestic !iolence is a ajor pro$le aong a"olescent girls who arr' earl'. Woen who arr' 'o#nger are ore likel' to $e $eaten+ threatene" or se*all'a$#se". The' are soeties ore likel' to $elie!e that a Page 11
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ h#s$an" ight $e j#stifie" in $eating his wife. As pre!io#sl' entione"+ "#e to the age "ifference
$etween the partners+ 'o#ng girls are ore !#lnera$le an" therefore s#scepti$le to a$#se. &rafficking and sale of girls5 Chil" arriage also res#lts in the trafficking of chil"ren for !ario#s
p#rposes+ incl#"ing prostit#tion+ la$o#r an" e*ploitation. Jo#ng girls are l#re"Hforce" into arriage for the p#rpose of selling the to other states. aji$ (al"ar+ &ecretar'+ /ra'as+ sa's 3Trafficking of Parrie" girls is rapant in ajasthan+ ?ttar /ra"esh+ Chhattisgarh an" e!en Kerala.5 7%nfochange+ @e$. :<<9. Also+ a s#r!e' of !ictis of trafficking re!eale" that 6.= per cent o f the respon"ents were arrie" when the' were chil"ren 7i.e.+ when the' were less than 6= 'ears of age9. This s#ggests that chil" arriage is aong the ke' factors that ake woen an" chil"ren !#lnera$le to trafficking 7eport+ Trafficking+ :<<:8:<
p#rposes+ incl#"ing prostit#tion+ la$o#r an" e*ploitation. Jo#ng girls are l#re"Hforce" into arriage for the p#rpose of selling the to other states. aji$ (al"ar+ &ecretar'+ /ra'as+ sa's 3Trafficking of Parrie" girls is rapant in ajasthan+ ?ttar /ra"esh+ Chhattisgarh an" e!en Kerala.5 7%nfochange+ @e$. :<<9. Also+ a s#r!e' of !ictis of trafficking re!eale" that 6.= per cent o f the respon"ents were arrie" when the' were chil"ren 7i.e.+ when the' were less than 6= 'ears of age9. This s#ggests that chil" arriage is aong the ke' factors that ake woen an" chil"ren !#lnera$le to trafficking.6 Illiterac among girls5 Chil" arriage "enies schooling for girls an" their right to e "#cation+
necessar' for their personal "e!elopent an" their effecti!e contri$#tion to the f#t#re well$eing of the societ'. &oeties+ girls who prefer to go to school $efore or after arriage a' not $e allowe" to p#rs#e higher st#"ies. ?s#all' girls are p#lle" o#t of school p#tting an en" to their e"#cation an" "e!elopent. Lack of e"#cation aong girls akes the !#lnera$le an" hin"ers their in"i!i"#al "e!elopent. Man' parents $elie!e that in!estent in a girl2s e"#cation is a waste of one' $eca#se #ltiatel' she wo#l" ha!e to get arrie" an" go awa' to the h#s$an"2s ho#se where she will take care of the ho#sehol". With"rawal fro school in or"er to get her arrie" liits her opport#nities to )4 e3ort- "rac>ing- +''+5+''*- Dinal e3ort o% Action esearch on "rac>ing in ;omen and Children- /olume I Page 12
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ $ecoe an infore" an" self reliant in"i!i"#al. %n an' cases+ the Marrie" Girl Chil" 7MGC9 is also
not allowe" to sociali,e an" to ake frien"s o#tsi"e her fail'.
'hild marriage5 A global 0roblem
The ap a$o!e shows the co#ntries in the worl" where chil" arriage is practice" an" gi!es an in"ication of the percentage of girls affecte" $' chil" arriage in each co#ntr'. Chil" arriage is a worl"wi"e phenoenon $#t is ost pre!alent in Africa an" &o#thern Asia an" altho#gh its practice has "ecrease" soewhat in recent "eca"es+ it reains coon in+ altho#gh not onl' confine" to+ r#ral areas an" aong the ost po!ert' stricken
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’
The Worl" (ealth Organi,ation estiates that o!er FB+<<< chil" arriages happen e!er' single "a'. That is 6;.: illion girls that are arrie" ann#all' who are #n"er the age of eighteen.6>
The ?nite" Nations /op#lation @#n" 7?N@/A9 has also projecte" that of the 6;< n girls who will $e arrie" #n"er 6= $' :<:<+ < n will $e #n"er the age of 6.6 )6 htt3:77girlsglo=e.org7+')*7'(7)47child5marriage5a5glo=al5issue7 )0 htt3:77888.hindustantimes.com7India5ne8s7Ne8
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’
9egal (rame2ork on 'hild /arriage %n the pre8%n"epen"ence perio"+ the "e$ate on the age of consent was closel' relate" to the capaign for legislation on chil" arriages. This contin#e" into the :
+ replace" the CMA. The p#rpose of the Chil" Marriage Act+ :<<>+ is not sipl' to restrain $#t prohi$it chil" arriages. %t la's "own the ini# age for arriage as :6 for ales an" 6= for feales. The anoal' of two "ifferent ages at arriage for woen an" en was raise" $efore the /arliaentar' &tan"ing Coittee+ while soe e$ers oppose" this4 the go!ernent coente" that 3for the p#rpose of arriage+ two "ifferent ages ha!e $een accepte" sociall' as well as c#lt#rall' in the co#ntr'5. &ection F of the Chil" Marriage Act+ :<<>+ pro!i"es that a chil" arriage will $e ren"ere" !oi"a$le onl' if the chil"ren or their g#ar"ian2s le legal procee"ings. %t is #nlikel' that an ' s#ch case will $e ), aj Sahe= Kar=ilas our Sarda- a cam3aigner- demanded legal intervention on child marriages >ee3ing in mind the detrimental e@ect o% lo8 age o% consummation o% marriages and its detrimental e@ect on girls. Page 1-
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ le" gi!en the societal nors that s#rro#n" it. ?n"er &ection F7F9+ a petition for ann#lent of the
arriage $' the contracting part' who was a chil" at the tie of arriage a' $e le" an' tie+ $efore 7the chil" ling the petition copletes9 two 'ears of attaining ajorit'+ which allows a ale of :F 'ears an" feale of :< 'ears to le a petition. 0#t it is #nlikel' that these chil" $ri"es or their failies will choose to n#llif' their arriages+ as $' the tie the' "eci"e to go to co#rt their arriages wo#l" ha!e $een cons#ate". The Act+ #n"er &ection 6:+ la's "own that chil" arriages will $e !oi" onl' in three cases I one+ when the girl is 3entice" o#t of the keeping of the lawf#l g#ar"ian54 secon"+ in cases of cop#lsion or "eceitf#l eans4 an"+ thir"+ for the p#rpose of traf cking. These correspon" to the pro!isions #n"er !ario#s atrionial laws where the lack of !ali" consent is gro#n"s for ann#lent of arriage. This section !ali"ates other fors of c#stoar' an" tra"itional chil" arriages which reain !oi"a$le an" !ali" till in!ali"ate" $' the contracting part'. &ection 6; of the Act states that chil" arriages perfore" in contra!ention of inj#nction or"ers iss#e"+ #n"er &ection 6F+ whether interi or nal+ will $e !oi". These inj#nctions can $e iss#e" $' a agistrate $ase" on a coplaint or e!en s#o ot# cognisance of a report regar"ing chil" arriage $eing arrange". %t o$ligates the "istrict agistrate to pre!ent solenisation of ass arriages+ while acting as a chil" arriage prohi$ition officer. The Act legitiises chil"ren $orn o#t of chil" arriages an" ens#res protection in the for of aintenance an" c#sto"'+ $oth for the inor girl an" her chil". egistration of arriages6B is not a""resse" in the Chil" Marriage Act+ :<<>+ $#t the An"hra /ra"esh Cop#lsor' egistration of Marriages Act+ :<<:+ is strongl' taken #p in the state r#les. The chil" arriage prohi$ition officer has to ens#re 3scr#p#lo#s a"herence5 to the An"hra /ra"esh Cop#lsor' egistration of Marriages Act+ :<<:+ as per the An"hra /ra"esh /rohi$ition of Chil" Marriage #les+ :<6:. Moreo!er+ the Law Coission also recoen"s that 3registration of arriage $e a"e cop#lsor'5 7Law Coission of %n"ia :<<= 9.
) )( In the case o% Seema vs Ashwini Kumar 200. 2 SCC -/8 - the court issued directions regarding issue o% noti9cation = various states on com3ulsor registration o% marriages- including amendment o% e$isting state rules or %raming ne8 rules to ensure com3ulsor registration o% marriages.
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’
'entral 9a2s related to 'hild /arriage in India 6. The Chil" Marriage 7estraint9 Act+ 6B:B :. The /re!ention of Chil" Marriage Act+ :<<; F. Cop#lsor' egistration of Marriages Act+ :<<> ;. /rohi$ition of Chil" Marriage Act+ :<<>
State Initiatives against 'hild /arriage 6. The (iachal /ra"esh Marriage egistration Act+ 6BB> :. Marriages 7egistration an" Miscellaneo#s /ro!isions9 Act+ 6B>8 Karnataka F. ajasthan Cop#lsor' egistration of Marriages 0ill+ :<<: ;. Maharashtra eg#lation of Marriage 0#rea#s an" egistration of Marriages Act+ 6BB= . Trip#ra ecor"ing of Marriage 0ill+ :<
:ther Initiatives 6. 0al i!ah iro"h A$hi'an8 National Coission for Woen 7NCW9+ April :<<
Salient features of the Prohibition of 'hild /arriage Act, ;<<= 7i9 Chil" arriages to $e !oi"a$le at the option of contracting part' $eing a chil" Page 1/
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ 7ii9 /ro!ision for aintenance an" resi"ence to feale contracting part' to chil"
arriage 7iii9 C#sto"' an" aintenance of chil"ren of chil" arriages 7i!9 Legitiac' of chil"ren $orn of chil" arriages 7!9 /ower of "istrict co#rt to o"if' or"ers iss#e" #n"er section ; or section 7!i9 /#nishent for ale a"#lt arr'ing a chil" 7!ii9 /#nishent for solenising a chil" arriage 7!iii9 /#nishent for prooting or peritting solenisation of chil" arriages 7i*9 Marriage of a inor chil" to $e !oi" in certain circ#stances 7*9 /ower of co#rt to iss#e inj#nction prohi$iting chil" arriages 7*i9 Offences to $e cogni,a$le an" non8$aila$le 7*ii9 Appointent of Chil" Marriage /rohi$ition Officers
Bal 7ivah 7irodh Abhian %n April :<<+ the National Coission for Woen 7NCW9 la#nche" the 0al i!ah iro"h A$hi'an 7Chil" Marriage /rotest /rogra9+ a nationwi"e awareness progra against chil" arriages with partic#lar foc#s on the states of ajasthan+ 0ihar+ Chhattisgarh+ Ma"h'a /ra"esh+ -harkhan"+ an" ?ttar /ra"esh. The NCW e!en p#$lishe" an a"!ertiseent in regional newspapers to generate awareness in the r#ral areas known for chil" arriages in the a$o!e states 7NCW+ Chapter 6<9. The go!ernent reporte" that it pre!ente" :<< chil" arriages in the ajnan"gaon "istrict of Chhattisgarh+ a "istrict known for ass chil" arriages in April an" Ma' e!er' 'ear. A local NGO+ M @o#n"ation+ claie" to ha!e pre!ente" :+F:6 chil" arriages in the state of An"hra /ra"esh since Page 18
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ :<<<.:< A &t#"' on Chil" Marriage in %n"ia &it#ational Anal'sis in Three &tates. At present+ an
a$itio#s prograe is #n"erwa' to increase the !al#e place" on girls in %n"ia+ an" there$' in"irectl' increase their age at arriage. The go!ernents of ajasthan+ Karnataka an" (ar'ana ha!e esta$lishe" an incenti!e prograe for low8incoe failies. %n (ar'ana+ for e*aple+ a s# of one' 7s.:+ << or ?&Q=9 is set asi"e in a sa!ings acco#nt for a girl at her $irth. At the age of 6=+ if she is still #narrie"+ the girl is eligi$le to collect the acc##late" s# of s. :+<<<. This econoic incenti!e to keep girls ali!e an" postpone their arriage is s#ppleente" $' s#pport for girl2s e"#cation. The intention is to enco#rage parents to postpone arriage #ntil "a#ghters reach 6= an" can #se the grant for their "owr'. 7Earl' Marriage Chil" &po#ses :<<6+ ?N%CE@9.
'riminal and /arriage 9egislations @or a critical #n"erstan"ing of chil" arriages in %n"ia+ a thoro#gh e*aination of the gaps an" coonalities in criinal an" arriage legislations is essential. Therefore+ a rea"ing of the Chil" Marriage Act+ :<<>+ nee"s to take into acco#nt the iplications of the !ario#s personal laws an" the sec#lar law on arriages. While the (in"# Marriage Act "oes stip#late con"itions for a !ali" arriage #n"er &ection 7iii9 of the (in"# Marriage Act+ 6B:6 7hereafter referre" to as 3(MA59+ the ale sho#l" ha!e coplete" :6 'ears of age an" the feale 6= 'ears to f#ll the con"itions of a (in"# arriage. (owe!er+ arriage in contra!ention of the a$o!e8entione" con"ition is not !oi" an" &ection 6=7a9 of the (MA pro!i"e" siple iprisonent #p to 6 "a's or with ne which a' e*ten" to s 6+<<< or with $oth. The /arliaentar' &tan"ing Coittee report highlighte" the isatch two "ifferent p#nishents #n"er the two "ifferent laws were $eing offere" for the sae offence. Therefore+ &ection 6=7a9 of the (MA +' 1.S.
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ has $een aen"e"+ keeping in in" the pro!isions #n"er the Chil" Marriage Act+ :<<>+ enhancing the
p#nishent to rigoro#s iprisonent of two 'ears or with ne which a' e*ten" to s 6+<<+<<<+ or with $oth. The pro!isions of the Chil" Marriage Act+ :<<>+ are f#rther "il#te" "#e to personal laws on arriage. @or instance+ the M#sli law on arriages la's "own the age of p#$ert' as the age of arriage. (owe!er+ as per &ection :7!ii9 of the Dissol#tion of M#sli Marriages Act+ a M#sli woan can "issol!e her arriage if it was perfore" $efore she attaine" 6 'ears of age+ $#t she has to rep#"iate her arriage $efore attaining the age of 6= 'ears+ pro!i"e" the arriage has not $een cons#ate". %n $oth M#sli an" Christian arriage laws+ consent of the g#ar"ian is essential for a inor2s arriage. &ection F of the Christian Marriage Act+ 6=:+ "e nes a inor as a person who has not coplete" :6 'ears. As per &ection 6B of the Act+ consent of father+ or g#ar"ian+ or other is an"ator' for arriage of inors+ therefore the Act "oes not in!ali"ate inor arriages. On the other han"+ the &pecial Marriages Act+ 6B;+ is the onl' Act where chil" arriages are !oi"4 &ection ;7c9 states that the ale #st ha!e coplete" :6 'ears of age an" the feale 6= 'ears for a !ali" arriage. Now let #s look at the pro!isions of the %n"ian /enal Co"e 7%/C9 an" the res#lting iplications on chil" arriages. The criinal law in %n"ia ais to pro!i"e certain protection to wo en. (owe!er+ a rea"ing of the pro!isions re!eals a lack of e*plicit "isappro!al of chil" arriages. &ection F states+ an is sai" to coit 1rape2 who+ e*cept in the case hereinafter e*cepte"+ has se*#al interco#rse with a woan #n"er circ#stances falling #n"er an' of the si* following "escriptions8 @irstl'8 Against her will. &econ"l'8 Witho#t her consent &i*thl'8 With or witho#t her consent+ when she is #n"er si*teen 'ears of age. Whereas the e*ception to &ection F of the %/C states that 3se*#al interco#rse $' a an with his own wife+ the wife not $eing #n"er fteen 'ears of age+ is not rape5. &ection F> 769 states+ Whoe!er+ e*cept in the cases pro!i"e" for $' s#$8section 7:9+ coits rape shall $e p#nishe" with iprisonent of either "escription for a ter which a' $e for life or for a ter which a' e*ten" to ten 'ears an" shall also $e lia$le to ne #nless the woan rape" is his own wife an" is not #n"er twel!e 'ears of age+ in which cases+ he shall $e p#nishe" with iprisonent of either "escription for a Page 20
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ ter which a' e*ten" to two 'ears or with ne or with $oth&ections F an" F> rea" together
re!eal that the %/C has set o#t "ifferent ages for chil" rape+ an" the rape of arrie" an" #narrie" woen. One can infer that chil" rape falls #n"er &ections F an" F> of the %/C. A chil" is "ene" as a person $elow 6= 'ears of age an" the rea"ing of &ection F clearl' ill#strates that se*#al interco#rse with a girl $elow 6> 'ears of age 3with or witho#t her consent5 is chil" rape. (owe!er+ the e*ception to the rape pro!ision states that engaging in se*#al interco#rse with a wife+ if she is o!er 6 'ears of age+ "oes not ao#nt to rape. The e*ception "oes not talk a$o#t an' aspect of 3consent5 or 3will5 of the girl. This e*ception applies to cases of chil" rape as well+ altho#gh the sae has not $een "enie" e*plicitl' #n"er the %/C. %n a""ition+ #n"er &ection F>+ the rape of a chil" wife $etween 6: an" 6 'ears of age is p#nisha$le with iprisonent+ a ne+ or $oth. %prisonent is liite" to a a*i# of two 'ears+ e!en tho#gh the ini# p#nishent for the rape of a chil" #n"er the age of 6: 'ears is 6< 'ears2 iprisonent. While on the one han" o#r %n"ian penal laws "o not acknowle"ge arital rape+ on the other the' pro!i"e iplicit appro!al to chil" arriage. This is in spite of a range of international con!entions an" treaties ratie" $' %n"ia. %n :<<+ the /arliaentar' &tan"ing Coittee highlighte" this anoal' an" in its report 7/arliaentar' &tan"ing Coittee :<<9 an" recoen"e" that the go!ernent sho#l" consi"er aen"ingH"eleting the e*ception to &ection F of the %/C to $ring it in conforit' with the pro!ision of the /re!ention of Chil" Marriage 0ill an" the international con!ention. The secon" instance when the "eletion of the e*ception to &ection F of the %/C was recoen"e"+ e$ers of the 6:n" Law Coission state" that it wo#l" ao#nt to 3e*cessi!e interference with the arital relationship5 7Law Coission of %n"ia :<<< 6:9.
Identification of 3a0s and Problems The iss#e of chil" arriage is a""resse" in j#rispr#"ence in three wa's. @irst+ in the conte*t of 3age of "iscretion5 I in relation to ha$eas corp#s petitions in cases of 3elopeent or lo!e arriages5+ where appro!al fro parental a#thorit' is lacking. &econ"+ in relation to 3enticeent of girls fro lawf#l g#ar"ianship5+ which is gro#n"s for "eclaring chil" arriages !oi"+ e!en with the inor2s appro!al. The thir" is in relation to M#sli personal laws that hol" the 3age of p#$ert'5 as the age of arriage+ Page 21
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ which has $een conteste" in a recent case on chil" arriage. (owe!er+ what is s#rprising is the a$sence
of cases of force" chil" arriages of girls with ol"er en with parental appro!al. This is $eca#se 3the patriarchal $astions are too strong an" well forti e" for a o"ern feinist "isco#rse to enter an" change social ores thro#gh legal "ictates5 7Agnes :<6:9. The g#res fro the National Crie ecor"s 0#rea# 7NC09+ :<<+ in"icate that o#t of 6:: cases of chil" arriages reporte" #n"er the CMA :<<+ a$o#t ; res#lte" in a con!iction. The report of the Law Coission 7:<<=9 highlights that fro the earliest cases+ high co#rts an" the &#pree Co#rt ha!e #phel" the !ali"it' of chil" arriages. These incl#"e j#"gents like Durga Bai vs Kedarmal Sharma22+ Shankerappa vs Sushila Bai 23+ Rabindra Prasad vs Sia Dass 2! aong others. A few
proinent case laws on lawf#l g#ar"ianship+ elopeent an" personal laws ha!e $een e*aine" in the following sections. "mrinder Kaur and "noher v. Sae o# Pun$ab and %ar&ana and 'hers 2( was a case of a r#nawa' co#ple seeking protection #n"er Article :6 of the Constit#tion as the' were $eing threatene" $' the girl2s fail'. The inor girl of 6> 'ears got arrie" as per &ikh rites to a -at an of :6 'ears4 her co#nsel arg#e" that since she has attaine" the age of "iscretion+ her arriage is not !oi". The co#ple arrie" witho#t appro!al fro the girl2s fail' an" the girl2s father lo"ge" a coplaint that a an in his neigh$o#rhoo"+ along with his parents+ ha" ki"nappe" his "a#ghter with the intention to arr' her.
++ ),' 1/ol /I2 K )66. +* AI ),( ar ))+ +( AI ),6 Pat )+, +4 Case No CM5M +0' o% +''L
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ The Co#rt+ referring to prior j#"gents:> on the iss#e+ hel" that none of the referre" j#"gents took
into consi"eration the pro!isions of the Chil" Marriage Act+ :<<>+ which cae into force in :<<. el'ing on &ections :7a9+ 7$9 an" 6:7a9 of the Chil" Marriage Act+ :<<>+ the Co#rt hel" that the arriage is chil" arriage+ as the petitioner is 6> 'ears an" two onths ol"+ who has $een entice" o#t of the keeping of the lawf#l g#ar"ian an" cannot contract the arriage4 therefore+ her arriage shall $e n#ll an" !oi". The Co#rt hel" that in the gar$ of pro!i"ing police protection it cannot "eclare the !oi" arriage as !ali". The Co#rt state" that 3the life an" li$ert' of the petitioners is onl' en"angere" an" threatene" $' the girl2s fail' so long RasS their arriage legall' s#$sists+ $#t once their arriage is "eclare" to $e !oi"+ there is no threat to their life an" li$ert'5. ?nlike cases #n"er the CMA+ the Co#rt in this case took note of the Chil" Marriage Act+ :<<>+ an" hel" that #n"erage arriages $etween 6> an" 6= 'ears+ e!en with the consent of the girl+ are !oi" an" cannot $e pro!i"e" protection.: The other high co#rts ha!e+ howe!er+ taken a slightl' "ifferentl' position with regar" to 3elopeent arriages5. &#ch cases of elopeent are #s#all' le" #n"er the writ of ha$eas corp#s or #n"er &ection F>F of the %/C+ which "eals with ki"napping of inors. A rea"ing of a few 3elopeent5 or 3lo!e arriage5 cases re!eals that co#rts ha!e+ at least in a few instances+ #phel" these arriages $ase" on the consent of the inor woan. What also coes o#t in s#ch cases of 3enticeent fro the lawf#l keeping of the father5 is the iss#e of g#ar"ianship+ whether the h#s$an" can $e g#ar"ian of a inor wife. %n Makemalla Sailoo v. Superinenden o# Poli)e and 'rs 2*+ the Co#rt in "eci"ing on where the 6F8 'ear8ol" Arpitha+ who got arrie" #n"er the (MA+ sho#l" sta' referre" to the (MA+ (in"# Minorit' +6 Ravi Kumar vs The State and Another 200.1 RCR Criminal ,1 , a single =ench judgment o% this court in Ridhwana and Another vs UT Administration and Others 2008, RCR Criminal 2,2- a decision o% the Su3reme Court in the case o% Lata Singh vs State of UP and Another 200. - SCC ,/- and another judgment o% this cou)rt in Pardeep Kumar Singh vs State of Haryana 2008+ RCR Criminal +/. .
+0 3ustice Ra(esh 4umar 3ain stated that no 3rotection under Section ,82 o! the CrPC can =e granted = this court =ecause in that eventualit 3olice 3rotection has to =e granted to a %ugitive o% la8.
+, II 1+''62
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ an" G#ar"ianship Act 6B> 7hereinafter referre" as (MGA9 an" state" that the' ha" no option $#t to
allow the girl to go with her h#s$an". The Co#rt+ howe!er+ opine" that the legislat#res ha" not "one eno#gh to stop the enace of chil" arriages+ an" that this practice 3"i" not ens#re the health' growth of the societ'5. %n +iender Kumar Sharma v. Sae and "noher 2,+ $oth /oona an" -iten"er were inors+ who elope" an" arrie" #n"er the (MA. The Delhi (igh Co#rt+ in "eci"ing the !ali"it' of s#ch arriages+ state" that 3erel' on acco#nt of contra!ention of &ection 7iii9 of the (MA+ /oona2s arriage with -iten"er is not !oi" #n"er (MA or the Chil" Marriage Act+ :<<>. %t is+ howe!er+ !oi"a$le+ as now all chil" arriages are.5 &iilarl'+ in "eci"ing the c#sto"' of /oona+ the co#rts rea" together &ections 6+ 6B+ :6 of the G#ar"ians an" War"s Act+ 6=B<+ an" &ections > an" 6F of the (MGA an" took a $roa"+ tolerant !iew that the welfare of the inor 7who is ol" eno#gh to ake an intelligent preference9 is parao#nt. Talking a$o#t /oona2s g#ar"ianship+ the co#rt hel" that /oona2s nat#ral g#ar"ian was now her h#s$an" an" not her father+ an" that no one else can take that place #ntil an" #nless her h#s$an" is fo#n" to $e #n t to take that responsi$ilit'. The co#rt #phel" the girl2s right to life an" li$ert' in allowing her to choose her g#ar"ian an" categoricall' state" that she cannot $e force" to li!e in Nari Niketans or with her parents j#st $eca#se she is a inor. The co#rt highlighte" the "istinction $etween chil" arriages+ where chil"ren are force" into the+ an" o"ern8"a' arriages+ where inors fall in lo!e an" arr' o#t of their own free will. As the co#rts p#t it The sooner the legislat#re e*aines these iss#es an" coes o#t with a coprehensi!e an" realistic sol#tion+ the $etter+ or else co#rts will $e oo"e" with ha$eas corp#s petitions an" j#"ges wo#l" $e left to "eal with $roken hearts+ weeping "a#ghters+ "e!astate" parents an" petri8e" 'o#ng h#s$an"s r#nning for their li!es chase" $' serio#s criinal cases+ when their sin is that the' fell in lo!e. The f#ll $ench of the Ma"ras (igh Co#rt in - Sivakumar vs/0 1nspe)or o# Poli)e -hiruvallur -on Poli)e Saion4 20 "nbu4 30 Samandan +F< re!isite" the iss#e of r#nawa'Helopeent arriages an"
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ 769 Whether a arriage contracte" $' a person with a feale of less than 6= 'ears co#l" $e sai" to $e a
!ali" arriage an" the c#sto"' of the sai" girl can $e gi!en to the h#s$an" 7if he is not in c#sto"'9U 7:9 Whether a inor can $e sai" to ha!e reache" the age of "iscretion an" there$' walk awa' fro the lawf#l g#ar"ianship of her parents an" ref#se to go in their c#sto"'U 7F9 %f 'es+ can she $e kept in the protecti!e c#sto"' of the stateU 7;9 Whether in !iew of the pro!isions of the -#!enile -#stice 7Care an" /rotection of Chil"ren9 Act+ :<<< 7hereinafter referre" to as the -- Act9+ a inor girl+ who clais to ha!e solenise" her arriage with another person+ wo#l" not $e a j#!enile in conict with law+ an" whether in !iolation of the proce"#re an"ate" $' the -- Act+ the co#rt "ealing with a writ of ha$eas corp#s has the power to entr#st the c#sto"' of the inor girl to a person who contracte" the arriage with the inor girl an" there$' coitte" an of ce p#nisha$le #n"er &ection 6= of the (MA an" &ection B of the Chil" Marriage Act+ :<<>U 79 Whether the principles of &ections 6 an" 6B7a9 of the G#ar"ians an" War"s Act+ 6=B<+ co#l" $e iporte" to a case arising o#t of the allege" arriage of a inor girl+ a"itte"l' in contra!ention of the pro!isions of the (MAU &i!ak#ar+ father of inor girl+ &#jatha+ 6 'ears ol"+ le" a petition of ha$eas corp#s "ean"ing c#sto"' of the chil". &#jatha in her af"a!it state" that she ha" fallen in lo!e with An$# an" that she was $eing force" $' her parents to arr' her #ncle. eferring to earlier (igh Co#rt j#"gentsF6+ the "i!ision $ench hel" that arriage contracte" with a inor girl is !oi"a$le #ntil it is ann#lle" $' a copetent co#rt #n"er &ection F of the Chil" Marriage Act+ :<<>. The co#rt sai" that the arriage is *) Saraswathi Ammal vs hana!oti Ammal 1)+(2 (0 MJ 6)( 1Madras Kigh Court2L Seema evi and Simran Kaur vs State of Hima"hal Pradesh 128 2 Crimes .8 1Kimachal Pradesh Kigh Court2L #eetu Singh vs State 1 II #5 5elhi +/ a Kigh Court2L and %itendar Kumar Sharma vs State 1decided on )) !cto=er +')' =
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ not !ali" in a strict sense $#t it is not in!ali" either. The ale contracting part' shall not enjoin all the
rights which wo#l" otherwise eanate fro a !ali" arriage+ $#t onl' liite" ones. The co#rt hel" that the a"#lt ale contracting part' to a arriage with a feale chil" shall not $e the nat#ral g#ar"ian of the feale chil"+ in keeping with the pro!isions of the Chil" Marriage Act+ :<<>4 nor will he $e entitle" the c#sto"' of the feale chil"+ e!en if she e*presses her "esire to go to his c#sto"'. (owe!er+ as an intereste" person in the welfare of the inor girl+ he can appl' to the co#rt to set her at li$ert' if she is illegall' "etaine" $' an'$o"'. %n ha$eas corp#s procee"ings+ while granting c#sto"' of a inor girl+ her welfare an" safet' is parao#nt+ notwithstan"ing the legal right of the person who seeks c#sto"'. Talking a$o#t the 3age of "iscretion5+ the co#rt hel" that this is a )#estion of fact which each co#rt has to "eci"e $ase" on the facts an" circ#stances of the case. Most iportantl'+ the co#rt state" that if the girl e*presses her "esire not to go with her parents+ pro!i"e"+ in the opinion of the co#rt+ she has the capacit' to "eterine+ the co#rt cannot copel her to go to the c#sto"' of her parents an" instea" a' entr#st her in the c#sto"' of a t person s#$ject to her !olition. The reall' signicant aspect of this j#"gent is that while the co#rt "i" not allow her to coha$it with her a"#lt h#s$an"+ it also #phel" the inor girl2s "ecision to not sta' with her parents. Eplo'ing the 3age of "iscretion5 to "eci"e in the $est interest of the chil"+ the co#rt hel" that in s#ch ha$eas corp#s petitions the "ecision of the inor wo#l" $e taken into acco#nt. The thir" categor' of cases is in relation to M#sli personal laws that hol" the 3age of p#$ert'5 as the age of arriage. %n the recent Mrs -ahra Begum vs Sae o# Delhi and 'rs 32 the Delhi (igh Co#rt hel" that a M#sli inor girl co#l" arr' in accor"ance with the principle of the 3Option of /#$ert'5 or khi'ar8#l8$#l#gh. (owe!er+ in accor"ance with this !er' principle+ the inor girl a' also choose to rep#"iate the arriage #pon attaining ajorit'. %n this case+ the inor girl clearl' e*presse" her choice to resi"e with her h#s$an" an" the co#rt #phel" her agenc' an" choice+ o!er age an" inorit' stat#s. This case has re!i!e" the "e$ate a$o#t the interpla' $etween the Chil" Marriage Act+ :<<>+ an" the !ario#s personal laws 7@ai,#r :<6:9.FF (owe!er+ in a recent f#ll $ench+F; the "ecision of the Delhi (igh Co#rtF hel"+ The Chil" Marriage Act is a sec#lar law which specicall' "eals with the pro$le of chil" arriages. *+ $rs Tahra (egum vs State of elhi and Ors L ;P1C2 ((67+')+. Page 2.
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ eligion of the contracting part' "oes not atter. 0eing a 3special Act5 an" $eing a s#$se)#ent
legislation will o!erri"e the pro!isions of (MA Act or for that atter an' personal law. (owe!er+ this sho#l" not $e interprete" that we ha!e hel" that a petition for "issol#tion of arriage #n"er &ection 6F7:97i!9 is not aintaina$le. 0oth pro!isions+ i e+ &ection 6F7:9 7i!9 an" &ection F operate+ appl' an" ha!e their own conse)#ences. These are two conc#rrent pro!isions+ which can $e in!oke" $' the 1parties2 satisf'ing the con"itions stip#late" in the two sections.
'onclusions What is iportant in the a$o!e8entione" cases is the legal an" rights iplications of choices these 'o#ng woen ake. @einists ha!e "e$ate" the iss#es of the age at arriage an" the age of consentF>. %t is iportant to note that *ing a an"ator' age at arriage wo#l" ser!e as a "o#$le8e"ge" weapon $eca#se while on the one han" it wo#l" pre!ent pre8p#$ertal arriages+ on the other it wo#l" ipinge #pon the right of inor girls who ha!e attaine" the age of "iscretion to choose a partner an" arr'. As ** /arious activists have also condemned the judgment. See htt3:77888.indiane$3ress.com7ne8s7cit5activists5shoc>ed5at5delhi5hc5rulingthat5reduces5 marriagea=le5age5%or5muslim5girlsto5)474647 1last vie8ed on )* June +')+2. *( A %ull =ench consisting o% acting chie% justice A Si>ri and justices Sanjiv hanna and / Shali said the legislature must ma>e the la8 stringent to com3letel =an child marriage. *4 "he court 8as dealing 8ith %our 8rit 3etitions- namel- ;P 1Crl.2 No **,7+'',- CrlMC No )'')7 +')) Crl MA No *0*07+'))- ;P 1Crl2 No ,+)7 +'', and Crl MA No.,0647+'',;P1Crl2 No 4667+')'. Judgment 3ronounced on +0.'0.+')+. *6 Sarda :ill and the #ge o! Consent Committee under the aegis o! M ; 3oshi e$amined the 3rovisions %or raising the age o% consent under Section *04 o% the IPC. In its re3ort- it su=mitted that the age o% consent under Section *04 o% the IPC should =e )4 ears. Section *04 o% the IPC de9nes ra3e as an act o% se$ual intercourse = a man 8ith a 8oman against her 8ill and 8ithout her consent. I% the 8oman is =elo8 the age o% consent- that is- )6 ears- se$ual intercourse O even i% 8ith her consent O 8ould amount to ra3e. Ko8ever- i% a man has se$ual intercourse 8ith his 8i%e 8ho is )4 ears o% age- 8hether the act is 8ithout her consent or against her 8ill- it 8ould not amount to ra3e.
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ the cases presente" in the earlier sections show+ there are inor girls who are force" into alliances4 at
the sae tie+ there are instances where the' are ho#n"e" with ha$eas corp#s petitions for arr'ing a person of their choice. What then can $e the wa' o#t for the girls+ while not en"orsing the i"ea of legalising arriages in the age gro#p of 6>86= 'earsU This is the gre' area that nee"s to $e a""resse" $' societ' rather than legislat#res alone. Allowing girls2 free"o in relationships an" se*#al a#tono' is iportant4 howe!er+ "oes this ean that arriages sho#l" $e legalise" at the age of 6> 'earsU This $rings #s to the following )#estion what is the age at which girls are capa$le of e*ercising choiceU Co#rts ha!e eplo'e" the 3age of "iscretion5 test in an' j#"gents $#t the pro$le eerges when one tries to answer whether the recognition of age of "iscretion has $een coon across the $oar"+ in all casesU There is a !isi$le elasticit' in ascertaining 3age of "iscretion5 an" j#"gents "iffer "espite siilar facts. %n ost cases+ the age of "iscretion has $een eplo'e" when 'o#ng girls of 6>86= 'ears ha!e e*ercise" their choice in the atter of se*#al relationships+ an" parents ha!e o$jecte" to s#ch relationships. @i*ing the age for arriage at 6= is not pro$leatic fro the stan"point of pre8p#$ertal arriages4 it $ecoes a concern when one starts conating age at arriage an" age of consent+ there$' negating an' for of se*#al free"o that 'o#ng girls $elow that age gro#p can e*ercise. (owe!er+ lowering the $ar fro 6= as the age at arriage wo#l" gi!e failies free access to perfor arrange" arriages or force" arriages+ there$' increasing chil" arriages.
'hild /arriage Act, ;<<=
While there is a long histor' of resistance to pre8p#$ertal an" ass chil" arriages+ one nee"s to re8 e*aine the Chil" Marriage Act+ :<<>+ !is8V8!is the criinal law pro!isions of the %/C. The %/C fails to a""ress the "iscrepanc' in the age of consent at the tie of rape an" the age of consent for rape within a arriage+ which constit#tes "iscriination against woen I especiall' arrie" woen I an" has se!ere iplications for chil" arriages in %n"ia. Nonrecognition of the rape of a wife+ who is 6 'ears ol"+ $' her h#s$an"+ liits the control woen ha!e o!er their se*#alit'. This a"!erse sit#ation is e*acer$ate" $' the rather il" p#nishent of two8'ear iprisonent that is awar"e" in the case of rape $' a an of his wife who is a$o!e 6: 'ears $#t $elow 6 'ears of age. Page 28
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ The recent legislation on the Protection of 'hildren from Se>ual :ffences Act, ;<"", ais to protect
chil"ren fro offences of se*#al assa#lt+ se*#al harassent an" pornograph' an" pro!i"es for the esta$lishent of special co#rts for trials of se*#al offences. This is the rst legislation regar"ing se*#al offences coitte" against chil"ren4 it protects the fro se*#al e*ploitation an" a$#se $' a"#lts. While protecting chil"ren fro a"#lts+ the law also criinalises se*#al e*ploration aong chil"ren who are 6> to 6= 'ears of age. Chil"ren nee" protection fro !ario#s fors of !iolence+ e*ploitation an" a$#se+ as state" in the ActF $#t the fear of !iolence sho#l" not take awa' their right to "isco!er their se*#alit' an" to take charge of their $o"ies. %t is within this gre' area $etween age an" agenc' that the "e$ate on chil" arriage is locate". Another pertinent point is p#nishent #n"er the Chil" Marriage Act+ :<<>+ which is a co$ination of rigoro#s iprisonents an" nes. To who "o these p#niti!e eas#res appl'U ?n"er &ections 6< an" 66769+ whoe!er perfors+ con"#cts+ "irects or a$ets an' chil" arriage shall $e p #nisha$le #n"er the Act. Therefore+ an' fail' e$er+ instit#tion or association of persons can $e hel" lia$le for p#nishent #n"er the Act. While p#niti!e eas#res are iportant to highlight the pro$le of chil" arriage+ how logical are these p#nishentsU The NC0 :<6: recor"s on chil" arriage re!eal low con!iction rates. Moreo!er+ girls force" into chil" arriages are fearf#l of approaching the a#thorities+ lest their parents are iprisone" an" ne".F= %t is iportant to re!isit these )#estions to #n"erstan" who is lia$le for the practice of chil" arriage rather than foc#sing on the )#ant# of p#nishent itself an" whether the p#nishent #n"er the Act is logical an" can help co$at the practice of chil" arriage. Tho#gh o#r co#rts ha!e $een progressi!e in soe of their j#"gents+ $' not penalising the girls $or"ering ajorit' 7$etween 6> an" 6= 'ears9 for their consens#al #n"erage arriage+ o#r societ' has $een less accepting of s#ch arriages an" has !ictiise" s#ch girls. Another "ist#r$ing tren" seen is the attit#"e of societ' towar"s girls who ha!e e*perience" earl' arriages an" who are now tr'ing to n" their feet again. ecent newspaper reports ha!e highlighte" that at least two girls age" 6 'ears were *0 "he Protection o% Children %rom Se$ual !@ences Act- +'))- recognises 3enetrative se$ual assault- aggravated se$ual assault and se$ual harassment as o@ence. *, Proceedings o% the regional meeting on child marriages and the role o% civil societL discussion 8ith child rights grou3s in Sri>a>ulam- Andhra Pradesh- on the challenges in im3lementing the Child Marriage Act- +''6.
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Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ "enie" a"ission "#e to chil" arriages 7Mohae" :<6:9 fearing the' wo#l" set a $a" e*aple for
other st#"ents or "isc#ss failial atters in school. The high inci"ence of chil" arriages in %n"ia reains a ajor concern "espite efforts $' !ario#s chil" rights an" woen2s rights gro#ps. The National /lan of Action for Chil"ren :<< set o#t a goal to eliinate chil" arriage copletel' $' :<6<. Tho#gh that tieline is long o!er an" the plan has faile" to a""ress chil" arriages+ there are se!eral states like An"hra /ra"esh that ha!e recentl' iss#e" the necessar' r#les an" g#i"elines to ipleent the pro!isions of the Chil" Marriage Act+ :<<> 7The Asian Age :<6:9 which cae into force in No!e$er :<<. After a gap of !e 'ears+ r#les ha!e $een iss#e" in the state an" till "ate no appointents of chil" arriage prohi$ition ofcers ha!e $een a"e+ highlighting the lack of political will an" initiati!e on the iss#e. Non8go!ernental organisations 7NGOs9 ha!e pla'e" a proacti!e role in working towar"s the pre!ention of chil" arriages thro#gh co#nselling an" awareness generation. One s#ch s#ccessf#l instance is the Chil" Line 69. %nconsistenc' in the "ifferent personal laws regar"ing the legall' perissi$le age at arriage+ the option of p#$ert' in personal laws+ an" j#"icial cop#tation of the age of "iscretion inhi$its ipleentation of the Act+ $#t at the sae tie ha!e $een s#ccessf#l an" #phel" consens#al arriages with choice of partner. While it is iportant to ipleent the pro!isions of the Chil" Marriage Act+ :<<>+ it is also iportant to ens#re chil"ren2s right to life with li$ert' an" non8"iscriination4 pro!i"e spaces where chil"ren can e*plore an" #n"erstan" their se*#alit'+ e!en while the' are protecte" fro practices like force" chil" Page +0
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ arriages. Moreo!er+ laws alone cannot a""ress the pro$le of chil" arriages4 there #st also $e
6. Agnes+ @la!ia 7:<669 Marriage+ Di!orce an" Matrionial Litigation+ @ail' Law+ ol#e %% 7New Delhi O*for" ?ni!ersit' /ress9.I 7:<6:9 3Consent+ Age an" Agenc' eections on the ecent Delhi (igh Co#rt -#"gent on Minors an" Marriage5+ Kala+ 7!iewe" on 6; -#ne :<6:9 7httpHHka la.orgH:<6:H<>H6:Hconsent8agean"8agenc'8reections8on8the8recent8"elhi8highco#rt8j#"geent8on8 inors8an"8arriage8 a!ia8agnesH9. :. @ai,#r+ ahan A 7:<6:9 3The (in"# %slaic Law Does Not &anction Chil" Marriage5+ The (in"#+ !iewe" on 6F -#ne :<6: 7httpHHwww.thehin"#.coHopinionHop8e"HarticleF:<>B.ece9. F. Go% 76B;9 3Towar"s E)#alit' eport of the Coittee on the &tat#s of Woen in %n"ia5+ Ministr' of E"#cation an" &ocial Welfare+ Departent of &ocial Welfare+ Go!ernent of %n"ia+ Dece$er. Page +1
Seminar Project on ‘Juvenile Justice: Child Marriage in India.’ ;. Kosa$i+ Meera 76BB9 At the %ntersection of Gen"er efor an" eligio#s 0elief 70o$a'
esearch Centre for Woen &t#"ies9. . Law Coission of %n"ia 7:<<<9 36:n" eport on e!iew of ape Laws5+ Law Coission of %n"ia+ Go!ernent of %n"ia+ New Delhi 7httpHHwww.lawcoissionon"ia.nic.inHrapelaws.ht9. >. 7:<<=93/roposal to Aen" the /rohi$ition of Chil" Marriage Act+ :<<> an" Other Allie" Laws5+ eport No :<+ Law Coission of %n"ia+ Go!ernent of %n"ia+ New Delhi 7httpHHlawcoissiono n"ia.nic.inHreportsHreport:<.p"f9. . Mohae"+ %ran#llah & 7:<6:9 3Go!ernent &chool &las %ts Doors on Marrie" Girls5+ The (in"#+ !iewe" on :; -#ne :<6: 7httpHHwww.thehin"#.coHnewsHstatesHtail8na"#HarticleFBBF;.ece9. =. National Alliance for Woen 7:<<>9 3%n"ia &econ" an" Thir" NGO Alternati!e eport on CEDAW5+ National Alliance for Woen+ New Delhi. B. National Coission on /op#lation 7:<<<9 3National /op#lation /olic' :<<< I O$jecti!es5+ National Coission on /op#lation+ Go!ernent of %n"ia+ !iewe" on 6 -#l' :<6: 7httpHHpop#lationcoission.nic.inHnppo$j.ht9. 6<. /arliaentar' &tan"ing Coittee on /ersonnel+ 66. /#$lic Grie!ances+ Law an" -#stice 7:<<9 3Thirteenth eport on the /re!ention of Chil" Marriage 0ill+ :<<;5+ !iewe" on 6; -#l' :<6: 7httpHH6>;.6<<.;.H$ook:HreportsHpersonnelH6Fthreport.ht9. 6:. &aga"e+ -a'a 7:<<9 Chil" Marriage in %n"ia 7New Delhi O*for" ?ni!ersit' /ress+9. 6F. &arkar+ Tanika 7:<<69 (in"# Wife+ (in"# Nation 7New Delhi /eranent 0lack9. 6;. The Asian Age 7:<6:9 3A/ Mo!es to En" Chil" Marriages5+ !iewe" on Ma' :<6: 7httpHHwww.asianage.coHh'"era$a"Hap8o!es8en"8chil"arriages8
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