Child Marriage: Illegal But Not Extinct

While hearing a Public Interest Litigation (PIL) filed by a group of NGOs that highlighted the rampant increase in the number of child marriages in the country, the Supreme Court listed down certain guidelines to eliminate child marriage. It emphasised the need for prevention over punishment for this offence. 

In this Weekly, let’s understand what constitutes the offence of child marriage and what the new guidelines involve?

Is Child Marriage illegal in India?

In India, marriages of girls under the age of 18 years and boys under the age of 21 years are prohibited by law. According to the Prohibition of Child Marriage Act (“PCMA”), 2006 marriages where either the bride or the groom or both are minors, are voidable. This means that they can be annulled or declared invalid if either party to the marriage applies for it before a court of law. In cases where someone entices a minor through deceit or forces them into a marriage or sells them for the purpose of marriage, such marriages are considered null and void. This also becomes a punishable offence.

While child marriages are permitted under certain personal laws, the Supreme Court in the Independent Thought v. Union of India (2017) case observed that the PCMA overrides the personal laws and any marriage involving minors is illegal and punishable by law. 

What is the current punishment for child marriage in India?

While child marriages in themselves are not illegal, but only voidable, there are certain acts that are illegal under the PCMA. The law punishes the following acts related to child marriage : 

• If an adult man marries a minor girl child, then he will be punished with two years of jail time with hard labour and/or a fine that may extend to Rupees One lakh. 
• If anyone arranges, performs, conducts or abets a child marriage, they face jail time with hard labour extending to two years and/or a fine up to Rupees One lakh.
• If a minor enters into a child marriage and the person in charge of the minor’s care either promotes or permits the marriage, then they will be punished with two years of jail time with hard labour and/or a fine that may extend to Rupees One lakh. Even if there is no proof that the person in charge has actively promoted or permitted the child marriage, they will be punished for negligently failing to prevent the child marriage. 

What did the Supreme Court say in the current case?

In the current case, the Supreme Court held that to eliminate child marriages preventive steps must be taken factoring gender, caste, socio-economic status and geography of those at risk of child marriage. The Court laid down some guidelines for the same and highlighted that it is important to prioritise prevention and protection before prosecution and punishment. 

The Court also directed the Parliament to explore whether the practice of betrothals where a minor is promised in marriage to another person, with or without their consent can be legally prevented since the current legislation does not address this issue. The Court highlighted that betrothals  violate a minor’s fundamental right to freedom of choice and autonomy.

What are these guidelines?

The Guidelines formulated by the Supreme Court covered the following aspects : 

• Legal Enforcement
  • Appointment and Accountability of the Child Marriage Prohibition Officer in every state
  • Every District Collector and Superintendent of Police will be  responsible for preventing child marriages
  • Establishing a specialised police unit
  • Establishing a Special Child Marriage Prohibition Unit
• Judicial Measures
  • Magistrates can take action action by themselves against child marriage and pass orders to prevent child marriages.
  • Assess whether special fast track courts can be established to handle child marriage cases.
  • Initiate strict disciplinary actions public servants who fail to stop child marriage.
• Community Involvement
  • Every state must have an action plan to prevent child marriages.
  • Every state must organise awareness and sensitisation programmes involving CMPOs, Gram Panchayat or Municipality office holders, government officials, school principals and teachers, representatives of non-governmental organisations, local representatives, and Para Legal Volunteers (PLVs).
  • Adopt a ‘Child Marriage Free Village’ initiative across India. 
• Targeted Awareness Programmes 
  • Conduct Awareness Campaigns in schools, panchayat, religious institutions to highlight risks associated with child marriages, including sexuality and rights education.
  • Build awareness around the childline helpline (1098) and and women helpline (101)
• Capacity building
  • Training on prevention of child marriages for community health workers, educators, law enforcement and judicial officers, teachers, care providers, community influencers and local NGOs.
• Educational and Social Support
  • The Ministry of Women and Child Development should consider implementing educational incentive programmes for girls at risk of child marriages. 
  • The Ministry should also develop social welfare programmes to assist families at risk of child marriages.
  • All States should appoint an authority to ensure continuity of support systems for population at risk of child marriage. 
• Monitoring and Accountability
  • Development of a Standard Operating Procedure for legal support services, and long-term rehabilitation plans related to the prevention, protection, and rehabilitation of victims of child marriage. 
  • Streamlining the roles of panchayats and local leaders
• Leveraging technology for reporting and rehabilitation of victims of child marriages
• Budget Allocation for supporting and compensation of victims of child marriages.

What can we do to prevent child marriages?

The PCMA mandates that anyone who is aware of a child marriage, irrespective of whether the marriage has taken place or not, to report it to the authorities. To know in detail about how to report child marriage, read our explainer here.