The Prohibition of Child Marriage Act 2006 came into force on 1 November 2007 in India. In October 2017, Supreme Court of India gave a landmark judgement criminalizing sex with a child bride, hence removing an exception in India’s criminal jurisprudence which had until then accorded legal protection to men who raped their minor wives.
The object of the Act is to prohibit solemnization of child marriage and connected and incidental matters. To ensure that child marriage is eradicated from within the society, the Government of India enacted Prevention of Child marriage Act 2006 by replacing the earlier legislation of Child Marriage Restraint Act 1929. This Act also calls appointment of Child Marriage Prohibition Officer for whole or a part of a State by the State government
Significance of the Act
Under the Act, child marriage will be declared null and void under the following circumstances:
- Where minor child is taken or enticed out of the keeping legal guardian
- By force compelled or by any deceitful means induced to go from any place
- Is sold for purpose of marriage and go through a form of marriage or if the minor is married after which is sold off or trafficked or used for immoral purpose
In recent SC interpretation of Section 9 helps in dealing with the problem of men in the age 18-21-year age group being punished for marriage with a woman. According the section 9- “whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both”.
Provision for maintenance and residence of female
The District court while granting annulment of the child marriage, make an interim or final order directing the male contracting party, to pay maintenance to the female contracting party. If the male contracting party is minor, then the court shall direct the parents/guardian to the minor, to pay maintenance to the female contracting party. The female contracting party is entitled to get maintenance up to her remarriage. The amount of maintenance may be paid monthly or in lump sum. The quantum of maintenance shall be determined considering the needs of the child, life style enjoyed by her and means of income of the paying party. The District court may also issue suitable order as to the residence of female contracting party.
District court shall make appropriate order for the custody of the children of such child marriage and while making such order of custody, the court issue order taking in to account of the welfare and best interest of the child such marriage. The court shall also make appropriate orders of ma intenance and issue visitation orders also. The begotten or conceived of such child marriage shall be deemed to be legitimate children not withstanding such marriage is annulled by the court.
The Section 2 of the Act contains definitions
- Child: A child is a person who has not completed 21 years in case of male and 18 years in case of female.
- Contracting party: Either of the parties whose marriage is or is about to be solemnized.
- Child marriage: A marriage to which either party is a child.
- Minor: A person who is not deemed to be major under Majority Act.
- Voidable marriage: Every child marriage is voidable at the option of the contracting party who was child at the time of solemnization of marriage. A Decree of nullity can be obtained by such person by filling petition before the District court for annulment of marriage within 2 years after attaining majority majority. While granting a decree, the district court shall make an order directing both parties and their parents or guardians to return to the other party, money, gold, ornaments, gifts and other valuables.
Implementation of The Act
Duties of Child marriage prohibition officers
The government shall appoint child marriage prohibition officers over the area specified in the official gazette. Their duties are
- To prevent child marriage by taking action.
- To collect evidence for effective prosecution.
- To advice the locals not to indulge in promoting or helping or allowing solemnization of child marriage.
- To create awareness of the evil of such child marriage.
- To sensitize the community on the issue
- To furnish periodical returns and statistics when the government may direct
- Such other duties assigned by the Government
The Child marriage prohibition officers are deemed to be public servant and no suit will lie on the action taken by the Child marriage prohibition officers in good faith.
Offences and Punishment under this Act
- Punishment for male adult: If an adult male who is above 18 years of age contracts child marriage, he shall be punishable with rigorous imprisonment for 2 years or with fine which may extend to one lakh rupees or both.
- Punishment for solemnizing marriage: If a person perfume, conducts, directs or abets any child marriage, he shall be punishable with rigorous imprisonment for 2 years or with fine which may extend to one lakh rupees or both.
- Punishment for promoting/ permitting solemnization of marriage: Any person having charge of the child whether parent or guardian or any other person including member of organization or association of persons who does any act to promote the passing or permit child marriage or negligently fails to prevent it from being solemnized, including attending or participating such marriage, shall be punishable with rigorous imprisonment for 2 years or with fine which may extend to one lakh rupees or both.
The Judicial First Class magistrate / Metropolitan Magistrate has power to issue an injunction prohibiting child marriage. Which can be done by an application form the child marriage prohibition officer or receipt of any complaint or even Suo motu and if the court is satisfied that a child marriage in contravention to the Act is arranged or about to be solemnized, court shall issue injunction against any person including a member of organization prohibiting such marriage. A person disobeying the injunction shall be punishable with imprisonment for a term which may extend 2 years and fine which may extend to 1 lakh rupees or with both.
- The Act has failed to make all child marriage automatically void, instead making them void only where the child is “taken or enticed” from the care of a guardian, in cases of compulsion, fraud or trafficking, and if performed in violation of an injunction.
- The Act holds that a child marriage is voidable only upon the filing of a petition for annulment in district court. Hence it does not automatically declare child marriages void, only making them voluntarily voidable.
- The Act criminalizes family members who themselves are often living in poverty, lack adequate education and may be succumbing to social pressure.
By introducing this Act there has been a decline in the incidence of child marriage nationally form 54 per cent in 1992-93 to 27 percent in 2016, the pace of change remains slow, especially for girls in the age group 15-18 years. Child marriage is more prevalent in rural areas (48 per cent) than in urban areas (29 per cent).
The rates of child marriage are highest in the central and western parts of India and lower in the eastern and southern parts of the country. Other states that have an incidence of child marriage higher than national average are: Jharkhand, Uttar Pradesh, West Bengal, Madhya Pradesh, Andhra Pradesh and Karnataka.
Law Center-II, Faculty of law, University of law, 2nd Year, Student