CHILD MARRIAGES IN INDIA AND ROLE OF PCMA, 2006 by Ashutosh Rajput

INTRODUCTION

Child marriages have been happening in India from so many years and society had given them a valid status. Child marriage is prevalent in today’s scenario as well and has become a matter of great concern. As per statistics, child marriage accounts for 27 per cent of total marriage in our country. According to UNICEF India has the largest number of brides in the world which is one-third of the whole globe total. The incidences of child marriages are higher among socially as well as economically backwards sections and are more prevalent among uneducated schedule caste and schedule tribe. The highest numbers of child marriages have been reported from the states such as Rajasthan, Uttar Pradesh and Bihar. As India is a patriarchal society, so mainly female are under coercion to marry at an early age, if she marries at an early age then the question on her sexuality will not be raised as this society puts great emphasis on virginity of the bride. The main reason for child marriage is lack of knowledge with respect to the law, and the dowry demand which increases with the increase in age. Basically, child marriage hinders the overall growth of a child, especially of girl child as her submission to sex and its related issues adversely impact her health, she is more likely to experience domestic violence and become infected with HIV which may lead to AIDS. The law respects the societal mandate but at the same time wants to eradicate it from society.

There is one of the fundamental legislation in India known as the Prohibition of Child Marriages Act, (PCMA) 2006. For understating child marriage, we have to first understand who is a child? The definition of the child has been precisely given PCMA which provide for the prohibition of solemnization of child marriage and for matters connected therewith or incidental thereto. Before PCMA the Child Marriage Restraint Act (CMRA), 1929 was prevalent, but it has provisions only for restraining the solemnization of marriage, not for prevention or prohibition of child marriages. According to section 2(a)[1] a child means a person who if a male has not completed 21 years of age, and if a female, has not completed eighteen years of age. The definition of child marriage as per section 2(b) means marriage to which either both the parties are a child or one of the parties is the child. Accordingly, Section 5(iii)[2] states that for the marriage to become valid the bridegroom has completed the age of 21 years, and the bride has completed the age of 18 years at the time of marriage. And the minority of a person is defined in Section 2(f) as a person who, under of Majority Act, 1875 is to be deemed not to have attained his majority which is 18 years of age be it a girl or a boy. Marriages of a minor child were held to be null and void in certain circumstances. These circumstances include; if the child is taken out of the keeping of lawful guardian or if a person induces or forces a child to go from one place to another or is sold for the purpose of marriage.

Further section 3(1) of PCMA provides the remedy for the contracting party to hold marriage as voidable and section 3(4) of the said Act states that the district court may grant a decree for nullity of marriage, and at the same time, pass an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments, other gifts and money. The proviso of section 3(4) further states that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed. Child marriage being voidable, will the party be entitled to maintenance? Yes, the female contracting party will be entitled to maintenance and with that, a proper residence will also be given as under Section 4. And the maintenance thus provided will be subjected to the matter of fact. The children born of child marriage before or after the commencement this act will be a legitimate child. After the children are born out of child marriage his/her custody will be given under a consideration by the district court with regard to his/her welfare and best interest, and the maintenance to such children may be provided by a party to the marriage of their parents or guardians as per Section 5. The court to which the petition is to be made to grant relief under section 3, 4 and 5 shall include the district court, having jurisdiction over the place where the defendant or child resides, or where the marriage had been solemnized or where the parties last resided together or where the petitioner is residing on the date of presentation of the petition.

Up to what extent will the party be punished? Section 9 to 11 provides law regarding the punishment of child marriage. The child marriage will remain valid until either of the party to the child marriage objects to it, but the male member if above age of 18 years, and whoever direct or conduct such marriage or a person whether as parents or guardians or in any capacity whether lawful or unlawful including the member of any organization or association, who is in charge of a child who is going to undertake a child marriage does any act to promote the marriage, or negligently fails to prevent it from being solemnized, together with attending or participating in a child marriage then they will be punished with rigorous imprisonment which may extend to 2 years or with fine which may extend to 1 lakh rupees or with both. The reason for validating child marriage but making it a punishable offence is just to make people restrain of contracting child marriages. But if he conducts, performs, abets with reasons to believe that the marriage was not child marriage then he will not be liable.

Section 13 of PCMA laid down the law regarding the power of a court to issue an injunction to prohibit child marriage which includes conferring certain powers to District Magistrate who shall be deemed to be a Child Marriage Prohibition Officer who may take all appropriate measures and use the minimum force required. Child marriage is a cognizable and non-bailable offence as per Section 15 of PCMA.

CONCLUSION

Present society is more inclined towards the solemnization of marriage rather than the parties contracting to marriage. It can be seen that child marriage is not merely voidable but punishable offence. Child marriage can be both void and voidable depending upon the circumstances. The child marriage between parties continues till one of the parties to such marriage objects to it. It has been seen that custom prevails the law. Society should understand through the child’s perspective that is exposed to child marriage and understand its consequences and should prohibit the solemnization of marriage. Considering the future aspect of the girl child to a marriage, society should ensure their health conditions. The socio-cultural conditions of the society and the consequences of invalidating such marriages on the girls specially will render the large number of girls and young women destitute for life.

 

 

 

[1] Prohibition of Child Marriage Act (PCMA), 2006

[2] Hindu Marriage Act, 1955

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