Child Ma rriage in Modern India Child marr iage in moder n I ndia was a much debat ed and publicised issue.

A fo cus o n t his issue is part icular ly s ignificant because it is t he first so cial refo r m issue in which organized wo men played a ma jor ro le in bot h t he develo p ment o f argument s, in t his case against child marr iage, and t he work o f po lit ical pet it io ning. In fact t he develo pment of the var io us I ndian wo men`s nat io nal organizat ions, t heir effort s t o cooperat e wit h one anot her, and t heir relat io nships wit h I ndian males, Br it ish officia ls, and Br it ish wo men can be viewed t hrough t he issue o f child marr iage in t he seco nd half o f t he 1920s. The issu e o f child marr iage had for lo ng remained a t hor ny issue in Br it is h Ind ia. The Br it ish missio nar ies and o fficia ls expressed t he ir horror of prepubert y marr iage which many I ndians explained as only t he first marr iage t o be fo llo wed by t he Gar bbadhan (co nsummat ion) ceremo ny immediat ely aft er t he att ainment o f pubert y. I n 1860 t he cr iminal code set t he age o f consent for bo t h marr ied and unmarr ied gir ls at t en years. The issue r eappeared in t he 1880s and in 189 1 t he cr imina l code was amended to raise t he age o f consent to t welve years. T his meant t hat t he age o f t he female when the marr iage was co nsu mmat ed could now be public ly quest io ned, a definit e proof t hat t he Br it is h were carr ying out t heir civilizing miss io n in I ndia. Ho wever, t here were no convict io ns under t he Act unt il t hirt y year s lat er. By t hen t her e were new reaso ns t o re-examine t he age o f marr iage in I ndia. This do esnt t ake away fro m t he fact t hat child marr iage in t odays I ndia is,

t heo ret ically speaking o f course, illegal. But merely passing a law does no t usually change anyt hing, which is why t he nat io n wit h t he wor lds lo ng est co nst it ut ion is also amo ng t he wor lds mo st corrupt . St ill, it s int er est ing t o see ho w so met hing ever yo ne cla ims is a social evil is allo wed t o happen, r ight in p lain sig ht . I f I, for inst ance, had gone t o t he po lice and t r ied t o get t hat child marr iage in Lucknow st opped, it wouldnt have done t he slight est good. So , when t he support ers of child marr iage claim an ancient hist o r ica l backgro und for it , t hey arent wrong. I n t his count r y, it does have an ancient hist o r y. But so do a lot of t hings, like human sacr ifice and r it ual cannibalis m, which do nt usually have any social sanct io n t oday. So why does child marr iag e persist . The I ndian law regarding child marr ia ge is a most cur ious animal. Acco rd ing t o law, t he lo west legal age at which a wo man can marr y is 18; and fo r a man it s 21. These are t he minimum ages at which a marr iage can t ak e p lace and be regist er ed. But t he law does not make regist rat io n of marr iages co mpu lso r y. A marr iage is legal whet her it s reg istered or not. Therefore, t he lo west legal age of marr iage hasnt much meaning. Then again, while t he lowest legal age of marr iage is 18 and 21, t he ag e o f sexual consent is 16 for bot h sexes. Int ercourse wit h a gir l belo w 16 is st at uto ry rape (only men can co mmit rape according t o t he I ndian law) but ano t her law, dat ing back t o Brit ish t imes and st ill not repealed, says a man who

had int ercourse wit h a gir l aged 14 or below will be t reat ed as a rapist unless t he wo man invo lved is his wife.

Statutory Analysis
The Hindu marriage Act, 1955 The H indu marr iage Act , 1955 minimu m age for marr iage (as t here mo st cert ainly is under t he specia l marr iage Act ), but this is hypocr isy: a child marr iage, in which one or bot h spouses ar e below t he age prescr ibed is per fect ly valid and cannot be annulled ( For want of co nsent ) or even at pubert y would be lit t le, va lue, since it would place premium on a gir ls refusing t o consummat e marr iage wit h her husband, which is at present regarded in so me quart ers as a sig n o f insanit y. The present dynast ic nat ure of marr iage vo id or voidable, but t he hypot het ica l co de o f family law could quit e proper ly r efuse regist rat ion o f marr iages wit ho ut proo f o f t he spouses having at t ained t he st at utory age, and could refuse all mat r imo nial relief t o part ies t o unregist ered marr iages. This quo t e confir ms t he derret t , too, assumed t hat moder nist refor ms co u ld event ually t hat curt ails Child marr iages. It was t hus inevit able t hat furt her debat e should ensure bedwa and ullah. Voice a wide ly shar ed view when t he y co mp lain about t he fact t hat child marr iages rema in legally valid and see t his as a sad co mment ar y on t he st at e of social le gislat io n in I ndia.

The Chi ld Marriage Rest raint Act, 1929 Child marr iages are ext remely det r iment al t o t he phys ical and ment a l healt h o f wo men, children and societ y as a who le. The ver y fact t hat such a pr imit ive social pract ice is so wide ly prevalent in our societ y. Medieval I ndian societ ies were plagued by several despicable so cia l pract ices. T he Child Marr iage Rest raint Act , 1929 was passed in t he pur suance o r effo rt s o f so me refor mist . This act was passed by t he Br it ish I nd ia n go ver nment , fixed t he minimum age o f marr iage as 14 for gir ls. T his act is po pu lar ly known as sharda act , on t he name o f perso n who was r espo nsible fo r t his refo r m. The sharda Act 1926 applies t o all per formed in I nd ia including Hind u Marr iag es, Muslim Marr iages, Chr ist ian Marr iages and Par si Marr ieges. The S harda Act 1929 was enact ed wit h a ver y modest purpose in view. It do esn't purport to prohibit child marr iage, it merely want s t o rest rain t hem. Or ig inally, t he t er m "Child" was define as a per son who, if a male, was u nder t he age o f 18 years, and if a female, was under t he age o f 15 year s. b y amend ment o f 1978 t he ages have been r aised t o 21 and 18 years respect ively, t he Child marr iage is define as "a marr iage t o which eit her of t he co nt ract ing part ies is a child." The Child Marr iage Rest raint Act does not purport t o render child marr iage as vo id. I nst ead, it prescr ibes some penalt ies for t hose per sons who ar e

respo nsib le for child marr iages. t hus, Sect io n 3, o f child marr iage r est rain Act says t hat if a male below t he age o f 21 years and above t he age of 18 year s s imp le

per fo r ms a child marr iage he ma y be punishable for a t er m o f

impr iso nment which may ext end t o fift een days, or wit h fine which ma y ext end to 1000 rupees, or wit h bot h. The o ffences under t he act are not cognizable o ffence. T his means t hat unless a co mplaint is filled, no proceeding can be launched in a court of law. The civ il court under t heir ordinar y civil jur isdict io n and under sect io n 12 o f t his Act , 1929, in t he int erest of child, power to issue an injunct ion may b e issu ed by court if it is o ffender s. But t he marr iage will be valid. The Child Marr iage Rest raint Act , 1929 was a queer piece o f legis lat io n rend er ing all child marr iages illegal but not void. A child marr iage remained valid in t he eyes o f t he law. As a result child marr iages cont inue unabat ed. Thro ugh, child marr iage t akes place because o f var ious socio-eco no mic- lesso ns, but o ne t hing is clear t hat it s consequences put drast ic negat ive effect o n children, especia lly on t he gir l child. S o in order t o club t his evil pract ice var io us social refor mer s, N.G.O and government fro m t ime t o t ime t ook var io us st eps. At int er nat iona l level, in 1989 t he unit ed nat ion general asse mbly ado pt ed t he co nvent io n o n t he Right s o f t he Child. I n I ndia first , such legis lat ive measure t o cont rol t he child marr iages was adopt ed in t he year o f 1929 b y enact ing. The Child Marr iage Rest raint Act , 1929. This act was amended t wo t imes in t he per io d of 1949 and in1978 to enhance the age t o t he t ime o f marr iage. I n 1949 it was raised t o 15 years for t he br ide, which was furt her

raised t o 18 years for t he br ide and 21 fo r t he br idegroom by t he amending Act o f 1978. Loopho les in the Act Thro ugh t his Act was passed wit h t he object to rest rain t he So lemnizat io n o f child marr iages, but t his Act only provides for t he punishment s for so lemnizin g t he child marr iages. This Act does not provide for any effect ive st eps t o prevent t he child marr iages, as t his Act is t ot ally silent about t he valid it y o f child marr iage. so, even if t he child marr iages per for med it does not vio lat e t he pro visio n o f t his Act , because provided under t he Act are also nit o f a st raingent nat ure. It provides o nly for t he simple impr iso nment upt o t hree mo nt hs and a five. In o rder t o provide effect ive st eps t o cont rol child marr iages, t he nat io nal co mmissio n for wo men, a body est ablished for t he impro vement o f t he st at us o f wo men prepared a draft bill providing for a unifor m law o f marr iage ent it led t he Ind ian Marr iage bill. It submit t ed t he dr aft bill to t he gover nment in 1994. A pro visio n was included in t he dr aft for declar ing child Marr iages vo id co mpu lso r y regist rat io n o f t he marr iage to avo id child marr iage. To plug t he lo o p ho les in t he exist ing laws and t o curb t he child marr iage, t he legis lat ive has passed t he prohibit io n o f child marr iage Act , 2006.

The Prohibition of Chi ld Marriage Act, 2006. The act provides a co mplet e code relat ing t o t he child marr iages which was t hert o not provided by any law except some punishment under t he Child Marr iag e Rest raint Act , 1928 o r Sect io n 18 o f t he H indu Marr iage Act wit ho ut to uching t he legal valid it y o f t he marr iage which was left t o be decided by t he perso n law gover ning t he part ies. The Act is o f unifor m applicat ion and it app lies t o all cit izens o f I ndia wit hout and beyo nd I ndia except t he Reno ncant s o f t he Unio n t errit or y of Pondicherr y. This act by virt ue o f sect io n 3(1) declares ever y child marr iage, whet her so lemn ized before or aft er t he co mmencement of t his act , shall be vo idable at t he o pt io n o f t he cont ract ing part y who was a child at t he t ime o f t he marr iage. Alo ng wit h t his provis io n sect ion 4 provides for maint enance and residence t o fema le co nt ract ing part y t o child marr iage while grant ing a decree under sect io n 3. Sect io n 5 provides for cust ody and maint enance o f childr en o f child marr iages and sect io n 6 confer s st at us of legit imacy o f children born o f ch ild marr iages. Furt her t his act also enhances punishment for pro mot ing o r

so lemn izat io n of child marr iages t o rigorous impr iso nment which ma y ext end t o t wo years and shall also be liable t o fine which may ext end up to one lak h rupees, besides t his t he act also provides power of court to issue injunct io n pro hib it ing child marr iages under sect io n 13. T his Act also provides for child marr iages prohibit io n o fficer s u nder Sect ion 16.

Fo r t he fir st t ime pro hibit io n o f child marr iage Act , 2006 (PCMA) ment io ned t he nat ure child marr iage by providing t hat t he child marr iage is vo idable at t he opt ion of co nt ract ing Party. t he pet it io n for nullit y o f marr iag e can be filed only by t he part y t hat too before t he child co mplet es t wo years o f att aining major it y. Now here lies t hat cont radict ion bet ween t he provis io ns o f t wo laws i.e. bet ween t he prohibit io n of child marr iage Act , 2006 and co mpu lso r y r egist rat ion o f marr iages as direct ed by Supreme court in 2006, in S mt . Seema Vs Ashwani Kumar. T hrough t his case Supr eme court dir est t he st at e and t he Cent ral Gover nment t o not ify t he procedure for regist rat ion wit hi n t hree mo nt hs fro m t he dat e o f judgment . So for up t ill t he passing o f t his jud g ment only four St at es viz: Madhya Pradesh, Gujar at , Kerala and Har yana have already final rules. So far as t he St at e of Punjab is concer ned, it was su bmit t ed t hat t he Bill has been prepared and it is t o be placed before t he Leg is lat ive Asse mbly. Thus, t hrough t his judgment now t he regist rat ion of t he marr iage beco mes co mpu lso r y, but t he quest io n here is t hat if registrat ion o f marr iage beco mes co mpu lso r y t hen what will be t he fat e o f t he child marr iage? It is o bvious t hat t he marr iage would be regist ered o nly if t he part ies t o t he marr iage are majo r. Thu s, whet her t his cont radict ion bet ween t wo laws out it s effect on t he valid it y o f child marr iage? I f t he child marr iage is per for med t hen how it should be reg ist ered? It it is not regist ered t hen whet her it vio lat es t he dir ect io ns o f t he Supreme Court ? T hese quest io ns need t o get t he appropr iat e answer but t he pro hib it io n o f child marr iage Act 2006 is silent on t his issue, rat her t he Act o f

2006 declar es t he child marr iage t o be vo idable at t he opt ion o f cont ract ing Part ies. Anot her co nt radict io n exist s bet ween t his Act of 2006 and Sect ion 37 5 o f I nd ian Penal Code. Sect ion 375 makes it a cr ime t o have sexual relat io n wit h t he child is under age o f sixt een years, but t he Act o f 2006 d id not make a child marr iage invalid even if it was below t he age o f 15 years. No w to resolve t hese conflict s, t he law co mmissio n o f I ndia under t he chair manship o f just ice AR Lakshmanan t he r eport recommends t hat child marr iage below 18 for bot h gir ls and bo ys should be prohibit ed and t hat marr iages below t he age o f 16 be made void while t hose bet ween 16 and 18 be made vo idable. However, t o ensure t hat young wo men and children ar e not left dest it ut e t he report reco mmends t hat provisio ns relat ing t o maint enance and cust o d y should apply t o bot h vo id and voidable marr iages. The report furt her reco mmends t hat t he age for sexual consent should be 16 for all young g ir ls, regard less o f marr iage. Finally, it reco mmends t hat regist rat ion o f marr iage be made co mpulsor y. T hus now t her e is a ray o f hope t hat if t he reco mmendat io ns o f t his r eport are accept ed, it may so lve all t hese cont radict ion and plug all t he lo o p ho les t hat exist ed in t he laws relat ing to t he prevent ion o f child marr iage.