Nirmala Sitharaman's Union Budget 2020-21 speech proposed a task force to review minimum age of marriage for women; child marriage is widely panned but also widely practised
Chhavi (name changed) was married when she was 15. A year later, her husband left the remote Odisha town to look for work. Now, at 17, she is a mother of a one-year-old.
From a Dalit community, Chhavi is the oldest of four siblings. Her father works as a daily wage labourer.
Recently Chhavi was rescued by her district's child protection unit as a child in need of care and protection. She was produced before the child welfare committee (CWC) and provided with skill-development training.
It is rare that young girls like Chhavi are able to make their way out of child marriages. Left to fend herself and her baby alone, Chhavi is aware of the lost potential of her childhood.
One in three child brides across the globe are from India. Few regressive practices receive such widespread condemnation but continue to be so widely practised. The harmful tradition violates child rights. It is an impediment to personality development as the cumulative effect of reduced school attainment, maternal and child morbidities and mortality has a long-term impact on the person.
In the October 11, 2017 Supreme Court judgment in the case of Independent Thoughts Vs Union of India, Just (retd) Madan B Lokur expressed concern. The Government of India and state governments should “take an informed decision on the effective implementation of the Prohibition of Child Marriage Act (PCMA), 2006, and actively prohibit child marriages, which ‘encourage’ sexual intercourse with a girl child,” he said.
While observing the social cost of child marriage, the judge noted:
Welfare schemes and catchy slogans are excellent for awareness campaigns, but they must be backed by focused implementation of programmes, positive and remedial action so that the pendulum swings in favour of the girl child, who can then look forward to a better future.
Ordinarily, the well-being of children like Chhavi should be of paramount importance to states committed to the cause. In this context, laws have not fully reflected these commitments — either in the name of tradition or in favour of preserving social institutions.
India has progressive legislations such as The Protection of Children from Sexual Offences (POCSO) and Juvenile Justice Act (JJA) to protect child rights. The Child Marriage Restraint Act was introduced in 1929. To bring in a more progressive legislation, the PCMA was brought to effect on 1 November, 2007.
Section 19 (1) of the PCMA empowers the state governments to make rules in this regard. Using the said provision, different state governments have formulated rules that are different from each other. While on one hand there is a need to respect diversity of policy approaches, on the other it is essential to strengthen the efficacy of the Act and redressal mechanism.
This calls for an intervention by the Central government to formulate a universal rule guiding states to amend existing rules.
There are wide variations in the post, role, and jurisdiction of the child marriage prevention office (CMPO) and therefore, the approaches to prevent of child marriages. Such variations mean that policies in one state — such as the detailed prescription on the role of the court in Bihar and qualifications for the role of CMPO in Arunachal Pradesh — are limited to these states, even when the problems they address are more or less universal in nature.
An amendment to that effect could be: “The state government may, by notification, make rules, for carrying out the provision of this Act. The Government of India shall formulate a model rule to guide the state government to make rules.”
This will help rationalise the provision and process, uniformly and progressively.
Recognising the nature of the problem, the Karnataka government declared child marriage void ab initio, or treated as invalid from the outset.
This, however, is a challenge for the rest of the states — PCMA recognises child marriage as valid but “voidable” at the option of the minor involved. It is rare that under-age brides complain or seek annulment due to social forces seeking to preserve the institution of marriage.
The Supreme Court, in the Independent Thoughts vs Union of India case, also noted that there is no difference between ‘rape’, defined in Section 375 of Indian Penal Code (IPC), and the ‘penetrative sexual offence’ as defined in Section 3 of POCSO Act. In this context, having sexual relationship with a minor within marriage is an offence.
The Supreme Court judgment noted:
The second part of Section 42A [of POCSO Act] provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which will have an overriding effect to the extent of inconsistency.
However, by maintaining that chid marriage is voidable, PCMA continues to maintain the validity of child marriage which ‘encourages’ sexual intercourse with a girl child. To address this inconsistency, it is essential to amend the law and make child marriage void ab initio.
In this case, a more robust law could be amended to say: “Notwithstanding anything contained in sub-section (1) [of Section 3 of the PCMA] every child marriage solemnised on or after the date of coming into force of the Prohibition of Child Marriage Act (amended) shall be void ab-initio.”
This could make the state more accountable and responsive towards protection of child rights.
Another important intervention required is change in the minimum age of marriage. This can be done by changing the definition of who constitutes a “child” under the PCMA. The minimum age fixed as per Section 375 of the IPC has been changing since 1860 — in 1978 the age up to which a girl was considered child changed to 18 from 15. For boys, it was changed to 21 from 18.
PCMA also carries the same provision.
However, it was recommended by the Law Commission that the minimum legal age for men and women should be the same to get married. In its consultation paper on ‘Reform of Family Law’, the panel also said: “The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals”.
Hence, the definition of a ‘child’ needs to be amended to make the age same for boys and girls.
Talking about the issue in her budget speech, finance minister Nirmala Sitharaman had said: “Women’s age of marriage was increased from 15 years to 18 years in 1978 by amending erstwhile Sharda Act of 1929. As India progresses further, opportunities open up for women to pursue higher education and careers. There are imperatives of lowering MMR (maternal mortality rate) as well as improvement of nutrition levels. Entire issue about age of a girl entering motherhood needs to be seen in this light. I propose to appoint a task force that will present its recommendations in six months' time.”
The proposed task force will have to review the minimum age of marriage for women, study its implications on maternal health and submit its recommendations within six months.
The Law Commission has recommended keeping 18 for both the boys and girls, for the purpose of prohibition of child marriage and guaranteeing the right of an individual to a nurturing childhood. Over and above that a state committed to the protection of child rights must also provide adolescents, especially young girls, socially sanctioned and economically viable opportunities so that at no age, would anyone be forced into marriage.
Child marriage challenges the right to health, education, protection and development of a child. While it adversely affects both boys and girls, it has a specific gender dimension, for it perpetuates discrimination particularly against girls.
However, there are regional variations in the practice of child marriage and even more so in the strategies adopted by states to tackle the subject. Our legal regime must be revised in order to put into action our commitments to end the practice.
Chhavi is a child bride, a mother, and girl but most importantly, she is a child in need of protection. We need to make protection of the rights of vulnerable children a priority in our laws.
Every childhood lost to child marriage is one too many.
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