Let us look closer at norms issued by Supreme Court for ending child marriage in India— and its missing links

On October 18, 2024, the Supreme Court of India delivered an important judgment on child marriages and issued comprehensive guidelines to end this practice.

In its judgement, the Supreme Court noted that the prevalence of child marriage in India has been steadily declining. The prevalence of child marriages in India has halved since the enactment of the Prohibition of Child Marriage Act (PCMA) in 2006, decreasing from 47 per cent to 27 per cent in 2015-16 and further to 23.3 per cent in 2019-2021, the court observed.

However, the challenge of eradicating child marriage remains a complex problem. The 2011 Census estimated that nearly 17 million children aged 10-19 years were married in India. According to data from the National Family Health Survey (NFHS)-5, 23.3 per cent of women were married before the age of 18. 

A recent report by the National Commission for Protection of Child Rights (NCPCR) indicates that more than 1.14 million children have been identified as vulnerable to child marriage.

While the much-anticipated new census is expected to provide updated information on the prevalence of child marriage in India and district-specific details, it is evident that there is still considerable ground to cover in making child marriage a thing of the past. NFHS-5 data, based on a sample, may not fully reflect the situation on the ground. Detailed enumeration and consolidated, authentic data on child marriage remain lacking. 

The prevalence of child marriage varies across regions, demographics and sub-cultural practices. Therefore, a micro-level situational analysis is crucial if we are to eliminate child marriage in India.

The apex court’s judgment, for example, highlighted that Arunachal Pradesh, Goa, Manipur, Odisha, Sikkim, Jammu & Kashmir and Lakshadweep had not submitted reports on child marriage to the court. Furthermore, many states lack mechanisms to maintain data related to child marriage. In the absence of real-time data, celebrating the decline in child marriage may be premature.

The Supreme Court noted that this age-old practice violates minors’ basic rights to free choice, autonomy and well-being. It prescribed comprehensive guidelines to accelerate initiatives aimed at curbing child marriage. The Court directed convergent and coordinated action from various institutions and implementing authorities to translate existing child protection laws into grounded realities.

Based on an analysis of measures taken by states under the Juvenile Justice (Care and Protection of Children) Act, the Protection of Children from Sexual Offences (POCSO) Act, the Right to Education (RTE) Act and, importantly, the Prohibition of Child Marriage Act (PCMA), it observed a lack of sincerity in implementing these laws, particularly the PCMA. 

This is evident from gaps in response mechanisms, processes for rescue and rehabilitation, tracking vulnerable children, allocation of resources and, most critically, the prosecution of offenders.

Prolonged trials and low conviction rates weaken deterrence. Of the 3,563 cases listed in trial courts in 2022, only 181 cases were successfully concluded. At this rate, the India Child Protection study estimated it will take 19 years to clear the backlog from 2022 alone.

While issuing detailed guidelines, the Court reinforced the effective execution of provisions already laid down in the Juvenile Justice (JJ) Act, the Right to Education (RTE) Act and the Prohibition of Child Marriage Act (PCMA). It also emphasised the importance of last-mile impact through proper planning, execution and accountability of duty bearers.

The Supreme Court expressed dissatisfaction with the information and approaches presented by different states during the hearing. One example highlighted by the court is that states like Karnataka have appointed 58,522 Child Marriage Prohibition Officers (CMPO) across thirty-one districts and Maharashtra has appointed 25,562 CMPOs across thirty-six districts, extending appointments down to the Gram Panchayat level. 

Andhra Pradesh has appointed 16,590 officers from the village or ward level up to the district level, including district magistrates. However, Uttar Pradesh has designated only one CMPO per district. While high numbers of appointments may suggest extensive coverage, this alone does not ensure effectiveness unless there are officers exclusively dedicated to CMPO duties without additional responsibilities.

The court directed the appointment of dedicated personnel as CMPOs with a focused mandate to tackle child marriage. An effective CMPO must establish roots within the community, engage with local communities and organisations and carry out the painstaking and often thankless task of reporting specific factors contributing to child marriages in their district, the court stated. 

For regular review and monitoring, the court suggested establishing district- and state-level monitoring units. It also recommended age-appropriate and culturally sensitive sexuality education for children in schools, a compensation scheme for girls opting out of child marriages, earmarked budget allocations and the creation of a designated portal for online reporting as key additions to this landmark judgement.

The suggestion to make villages child marriage-free, bring children back to schools and vocational education, build stakeholder capacity, increase community engagement and ensure interdepartmental coordination will undoubtedly accelerate efforts to end child marriage. 

The experience of nonprofit ActionAid Association, working in partnership with UNICEF India and state governments in Bihar, Odisha, Rajasthan and West Bengal for adolescent empowerment and the eradication of child marriage over recent years, supports this view.

Enhanced government leadership and increased community ownership have resulted in the development of standardised state guidelines for declaring villages and urban local bodies (ULBs) child marriage-free in Odisha. Consequently, 13,936 villages in Odisha have been declared child marriage-free. 

A Day for Children – Fixed Day Meeting on Children’s Issues Once a Quarter is another key initiative aimed at improving coordination among various departments and enhancing the implementation of services and schemes for children, including the eradication of child marriage and the empowerment of adolescents.

Engagement with caste, tribe and religious leaders to make them champions of this cause has made a significant impact. Communities are now committing to action against child marriage and challenging traditional norms.

In its judgement, however, the Supreme Court chose not to address deeper and critical issues, such as the Right to Education up to 18 years of age, the conflict between child marriage laws and personal laws, the intersection of the POCSO Act and the PCMA, the age of consent versus the age of marriage and the issue of teenage pregnancy. It urged Parliament to address these matters.

The Right to Education is violated by the commission of child marriage under international law. Article 28 of the Convention on the Rights of the Child (CRC) states that every child has the right to education. The CRC also defines a child as a person below the age of 18. 

However, India’s constitutional obligation on the Right to Education is limited to children up to the age of 14. Most child marriages occur between the ages of 14 and 18, depriving children of free and compulsory education. Opportunities for skill training before the age of 18 are also lacking, leaving a void.

The Court directed that victims of child marriage be considered “Children in Need of Care and Protection (CNCP)” under the Juvenile Justice Act and provided with necessary support to protect their best interests. 

Married children must be produced before the Child Welfare Committee (CWC) so they may be rehabilitated and cared for, the Court stated. It also drew attention to how boys, as well as girls, suffer in child marriages. Under the PCMA, a boy below the age of 21 is considered a child, but the JJ Act does not account for children above 18. There are instances where CWCs deny assistance to boys above 18 who are victims of child marriage.

Prosecution without strong efforts for prevention and prohibition proves ineffective in driving social change. This approach underpins the Supreme Court’s framing of its guidelines.

The emphasis on the POCSO Act holds a man liable for having sexual relations with his minor wife. However, the PCMA considers such unions to be legitimate if the marriage has been solemnised, unless any of the contracting parties’ initiate steps to make it void. Self-initiated informal unions of minors are also not recognised as marriages, even though they are considered marriages within certain castes and tribes.

As a result, such unions are criminalised under POCSO, depriving them of legitimacy. Teenage mothers and pregnant adolescents fear engaging with formal systems for rescue and rehabilitation, even though most qualify as children in need of care and protection. Consequently, they remain invisible and excluded from support, including emergency medical care.

The Court emphasised that child marriage enforces patriarchal norms, imposing undue burdens on both boys and girls. This issue cannot be addressed without building the agency of adolescents. More discussions, mainstreaming and social action on positive parenting and masculinity are needed.

Child marriage is both a symptom and consequence of patriarchy and entrenched gender inequality. Often justified as a custom or social norm inherited from the past, it is fuelled by economic concerns and safety considerations for girls. This practice is further perpetuated by a lack of information on real-time protection mechanisms, limited practical support, ignorance of the law and fear of breaking it.

The judgement outlined the need for a rights-based framework, rooted in international agreements and constitutional obligations. Such an approach — ensuring free choice, dignity, autonomy, the right to education and the right to health — must be translated into coherent action on the ground to address child marriage effectively and consign it to history.

Sandeep Chachra is the Executive Director at ActionAid Association and Ghasiram Panda is the national manager of the Ending Child Marriage Programme of Action Aid India

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth