CHAPTER-1

INTRODUCTION
 CHAPTER-1
INTRODUCTION

Children are viewed as the most precious legacy of a nation.

They are to be nurtured, loved and protected. They deserve care,
understanding and above all the best that man can offer. They have an
inborn right to justice, freedom and opportunity for development
irrespective of their nationality, caste, creed and sex. Justice Subba
Rao, the former Chief Justice of India emphasized this in the
following words.

"Social justice should start with children. Except if the

delicate plant is appropriately tended and fed it has
minimal possibility of developing further and more
valuable tree. So the main goal in the size of civil rights
should be given to the government assistance of the
children".1

Children are `a supremely important national asset'. But this

appears to be a myth rather than a reality. Since ancient times, children
seem to have been exploited in many ways within the family and
society. Child marriage, the age old menace, is one of the worst forms
of such exploitation.

1
Subba Rao.J., Social Justice and the Law, Volume 1 of Dr. Shyama Prasad Mookerjee
memorial lectures, National Publishing House, (1974), p.110.
1.1 MEANING AND DEFINITION OF CHILD

“Child” is an individual who has not finished eighteen years

old according to Section 2 (k) of the Juvenile Justice (Care and
Protection of Children) Act, 2000.

Child Labour (Prohibition and Regulation) Act, 1986, Section

2 (ii), “Child” implies an individual who has not finished the age of
14 years.

Child Marriage Restraint Act, 1929, Section 2 (a), “Child”

implies an individual who, if a male, has not finished 21 years old,
and if a female, has not finished eighteen years old. Immoral Traffic
(Prevention) Act, 1956, Section 2 (a), “Child” means a person who
has not completed the age of sixteen years.

As per Article 1 of the United Nations Convention on the

Rights of the Child, 'a child means every human being below the age
of eighteen years unless, under the law applicable to the child,
majority is attained earlier'.2 This definition allows flexibility for
individual member states to determine the age at which an individual
will be called a child within their own local laws. India has varied
definitions of child under its various statutes.3

The definition of child under the Child Labour (Prohibition and

Regulation) Act, 1986 is a person who has not completed fourteen
years of age.4 The Factories Act, 1948 and Plantation Labour Act
1951, then again state that a child is one that has not finished fifteen

2
Convention on the Rights of the Child [G.A. Resolution 44/25 of 20 November 1989]
3
Childline, ‘Who is a Child?’ <http://childlineindia.org.in/child-in-india.htm>.
4
Ibid.

2
years old and a juvenile is one that has finished fifteen years old but
has not finished eighteen years old.5 The Motor Transport Workers
Act 1961, and The Beedi and Cigar Workers (Conditions of
Employment) Act 1966, both characterize a child as a not finished
fourteen individual years old. The Merchant Shipping Act 1958 and
Apprentices Act 1961 don't characterize a child, however in
arrangements of the act state that a child under fourteen isn't allowed
to work in occupations of the act. The Mines Act, 1952 is the sole
work Act that characterizes a finished eighteen grown-up as an
individual-year-old; thus a child is an individual who has not finished
eighteen years old.6

Under the Indian Majority Act, 1875 an individual

accomplishes a greater part once the person is eighteen years old.
Article 21 (a) of the Indian Constitution states that all children
between the ages of six to fourteen ought to be given free and
mandatory schooling. Article 45 states that the State ought to give
youth care and schooling to all children beneath the age of six.
Finally, Article 51(k) connecting with basic obligations states that the
guardians/watchmen of the children between the ages of six and
fourteen ought to give them amazing open doors for education.7

Therefore, it is noticeable as to the extent to which the

definition of child under various statutes varies.

For the purpose of this study, we are looking at the definition

of child under the Prohibition of Child Marriage Act, 2006 which

5
Ibid.
6
Ibid.
7
Ibid.

3
defines that a male attains majority upon completion of 21 years of
age and a female attains majority upon completion of 18 years of
age.8

1.2 CHILD MARRIAGE

Child Marriage is the marriage of children. Sometimes, the
marriage of a minor boy with a girl is celebrated; sometimes an elder
contracts a marriage with a minor girl. Both these are child marriages.
Legally it is defined as a marriage to which both of the contracting
parties is a child.9 It is a socially established practice that has been
carried on from generation to generation, of course with the blessings
of the religion, in particular.

Child marriage is a universal phenomenon. According to the

report of the UNICEF, it can be found in every nook and corner of the
world. But it is most common in Sub-Saharan Africa and South Asia.
Democratic Republic of Congo, Niger, Uganda, Male and Cameroon
are the countries in Sub-Saharan area where this menace is quite
prevalent. In South Asia, it is widely spread in Bangladesh,
Afghanistan, Nepal, Pakistan and India.

In India, child marriage is widely practiced particularly in rural

areas. Newspapers have recently reported solemnization of thousands
of marriages in Rajasthan during the festival of Akha Teej 10 without

8
The Prohibition of Child Marriage Act 2006, s 2(a) .
9
Section 2(b) of the Child Marriage Restraint Act, 1929.
10
Akha Teej is the third day of the month Vaishakh in the Hindu Calendar and is
considered to be the most auspicious occasion for holding marriages. In such
marriages there is no need to find out muhurut as the whole day is auspicious
for marriage. See http:l/ www.mantraonnet.com/akshay-tritya.html.

4
any interference from the authorities.11 It is indeed surprising to note
that the marriage of nine minor daughters of one Manu Singh was
celebrated simultaneously in Gujarat.12 The most distressing fact is
that even educated people deliberately break the law with full
awareness of its consequences.13 Reports from Bihar, Uttar Pradesh,
Madhya Pradesh, Andhra Pradesh, Assam, Tamil Nadu and
Maharashtra pointed the gravity of the problem of child marriage in
India.

The State of Kerala having a higher age at marriage is also not

free from this menace.14 In spite of Kerala's high level of education
and progressive social environment, an alarmingly large number of
teenage girls are married off every year. The Arabic marriages of the
northern districts of Kerala15, especially Malappuram, are a striking
example which illustrates the economic exploitation of daughters by
parents.

Generally this social evil is common among the lower strata of

the society. The causes of child marriage are manifold. Traditional,
religious and social acceptance of child marriage is a predominant
reason for its prevalence. Moreover, many societies believe that
women are weak and needs protection and this may be a factor which

11
Ashwani Sharma, "The Brides and Grooms are Hardly Sixteen", The New Indian
Express 9 April 2003, p.8. See also the wedding photograph of a crying Radha (6
year old) with Sudhar Singh (1 0 year old) published in the newspaper points out
the extent and gravity of violation of the human rights of the child. See The New
Indian Express I l May 2001, p.1.
12
Joy Deep Roy "In Kutch Children Married off on Krishna Birthday" - The Indinn Express 25
August 2000, p.5.
13
For details see "The Road to School". Editorial. The Telegraph 23 April 2000, p. 1.
14
Marriages even before the adolescence became a common phenomenon in Kerala. See
"Marriage at 13, Mother at 14", Mafhruhhumi 3 March 2003, p.1.
15
O. Abdulla "Arabi Market at Kozhikode Beach" Matfhrubhumi 19 June 2002, p.4.

5
forces the parents to perform the marriage of their daughters at a
young age. Poverty or economic struggle is yet another major factor.
The social prestige attached to child marriage serve as an additional
impetus for its growth. Lack of education and low status of women
also play a significant role in the persistence of child marriage.

It appears that in India, religious, social and economic factors

are more responsible for the growth of this baneful custom. In the past
it had its origin in the foremost need, to protect unmarried girls from
the foreign invaders and hence early marriage was preferred. Later on
this became a social custom. The people in the villages of Rajasthan
and Bihar often justified this evil saying that they are bound to follow
the traditional custom.

The Hindu community gave too much importance to virginity

and chastity of woman. Their urge to protect the purity of women
resulted in early marriages.

Dowry is another contributing factor for the growth of the evil

custom in India. Fear of payment of dowry in the case of a girl
married after puberty further compounded the problem. The amount
of dowry normally goes up for the grown up girl child. Hence parents
prefer early marriage for girls.

Girl children are the worst affected by child marriage. Generally

`a girl child' is subjected to more abuses than a male child. The girl
child is counted as `mother's property', `a guest in parents' house' or
`a thing which has to be given away'. The patriarchal society views
girl children as a burden, a curse and a liability. She is an unwanted
and unwelcome thing for Indian parents. She is often abused and
misused. It is distressing to note that she is not safe even in her

6
mother's womb. Sometimes she may be killed in the womb of the
mother after the amniocentesis test. A study of 8000 cases on abortion
in a hospital in Bombay showed that 7999 were of female foetus.16
Even if the female foetus survives and is born alive she has to face
many obstacles for her survival. She is still under the threat of
murder at the infant stage. Female infanticide was banned in 1870, but
even today this practice is prevalent all over the country. Salem
District of Tamil Nadu gives us a shocking picture of the wide
practice of female infanticide. This is probably on account of a
superstition existing among a set of people in Salem District that the
sacrifice of a female child would result in the birth of a male child. If at
all the attempts to kill her fail, she is yet to be the victim of exploitation
to the maximum extent by her parents and the family. She is put to
hard labour even at a young age. She is destined to assist in the daily
chores of life. It is noted that a girl child shares 30 percent of the
burden of household activities and 20 percent of the agricultural
work. According to the statistics of the United Nations she works
more than 9 hours a day. Nobody in the house realizes the quantity of
work done by the tiny tots and the girl children are still treated as a
curse or a burden. They constitute the mute segment of the society,
often referred to as economic liability.

As she grows, she has to face sexual abuse or exploitation.

Instances of sexual exploitation even from father, other members of
the family and close relatives are widely reported. On account of the
low status given to women, the young girls are subjected to rape,
incest and molestation. The reported cases of rape victims reveal that

16
See for details R.K. Bay, "Domestic Violence and Crime Against Women -A Criminal
Justice Response in India", 1999 Cri.L.J. 4 (Jour).

7
twenty five percent of them are young girls less than 16 years of age.
Statistics and sociological studies show that child prostitution also is
on the increase. According to the International Labour Organization
(1994) the number of child prostitutes in India is 4 lakhs.17 Some of
them are lured by jobs, marriage, food and shelter and are taken to the
cities to end up ultimately either in prostitution or as cheap bonded
labour. Sometimes they commit suicide after harassing experiences of
the exploitation. `Cook at 6, Wife at 8, Mother at 13 - Widow with
four or five children at mid twenties and sometimes a Sati thereafter.'
This is the fate of an ordinary girl in the rural parts of India.18 This
practice violates each and every human right such as right to life,
survival, development and reproduction.

The teenage girls are easily susceptible to sexually transmitted

diseases like AIDS19 (Acquired Immuno Deficiency Syndrome) and
this is another problem confronting the nation. The impact of health
problem on the two generations may be a threat to the concept of safe
motherhood which may in turn affect the future generation.

Child marriage may cause adverse impact on family and society.

It may result in domestic violence, marital breakdown, extra marital
relations, and abandonment of spouses, divorce, infanticide and

17
For details see Dr. Durga Pada Das, "Some Highlights on Prevention of Trafficking in
Children and Protection of Child-Right in India", 2002 Cri.L.J. 348-351 {Jour).
18
Geetha was just nine years when she was married to Raj kumar, who was a man of 29 year.
She was forced to have sex with him as a result of which she became pregnant and he asked
her to get it aborted. After sending her back, he went through a second marriage. Ayswarya
Venugopal, "Married at 9, Thrown out at 13,Abused in between", The New Indian Express
22 August 2000, p. 10.
19
It is the medical diagnosis for a combination of diseases which result when the body's
defence system starts failing. It is caused by a virus called HIV. See Christopher Haslett (et-
al), Davidson's Principles and Practices of Medicine (1999), pp.87, 88.

8
foeticide. Closely associated with it is the problem of child
widowhood.

Every legal system requires that the party should have sufficient
age to be capable of physical union as well as to understand the nature
and responsibilities attached to marriage. Consent also is an essential
requirement for the validity of marriage. The UN Convention on
Consent to Marriage, Minimum Age for Marriage and Registration,
1962 also demands state parties to take steps to fix the minimum age
for marriage in each country. It also emphasizes the necessity for free
and voluntary consent for marriage. In pursuance of this convention,
many states make new legislations or modify the existing legislation
dealing with marriage.

The success of marital life depends upon the competency of

the spouses in handling the highly sensitive issues associated with it.
Mutual understanding is a sine qua non for happy married life. For
this, both the parties should be sufficiently mature to understand and
adjust with each other. Usually in child marriages, both parties are
not capable of understanding the significance of marriage and
sometimes their marital life becomes full of strain and stress. It may
affect their life and also the future generation.

A married woman is expected to transform into the multiple role

of a good wife, a perfect daughter-in-law, a diligent house-keeper
and a responsible mother. This transition can cause psychological and
emotional stress even in an adult woman. Sometimes she fails to cope
with the changed situations and it may develop into fears and
complexes lasting over her whole life, which may ultimately lead to

9
strained marital relations. If such is the case of an adult in marriage,
how can a girl child lacking maturity and skill to handle personal,
family, economic and social affairs fulfill the duties imposed on her as
a wife?

The requirement of consent is totally neglected in child

marriage. The parents deliberately violate the basic rights of children
without giving them the right to choose their partners. Even the
consent of a ten year old child cannot be treated as a valid consent.
Thus child marriage definitely violates the rights of children.

Both International and national law focused their attention on the

rights of the child only in the first part of the 19 th century. Prior to
this, children were treated as the property of the family without having
any right. With the Declaration of the Rights of the Child 1924 by
League of Nations, the global community recognized the status of the
child as a person. Again the Declaration of the Rights of the Child,
1959 provided special protection to children. It paved the way to the
concept of `best interest of the child.' This core concept was expanded
in the Convention on the Rights of the Child, 1989. This Convention
also recognizes provision rights, protection rights and participation
rights of the child. They together constitute the key rights of the child.
The Constitution of India also contains an obligation to protect the
rights of 'the child. The welfare of the child or `best interest of the
child' is the major concern embodied in the provisions of the
Constitution. How far these rights of the children are protected is a
pertinent question in the context of child marriage.

10
1.2.1 Definitions of Child Marriage
Child marriage is a mind-boggling subject under Indian
regulation. It was defined by The Child Marriage Restraint Act in
192920, and it set the base time of marriage for men at 18, and
women at 15. That regulation was addressed by Muslims, then
supplanted by personal regulation appropriate just to Muslims in
British India with the Muslim Personal Law (Shariat) Application Act
of 193721, which suggested no base breaking point and permitted
parental or watchman assent in case of Muslim marriages. Section 2
of the 1937 Act stated,
... some other arrangement of Personal Law, marriage, the
disintegration of marriage, including talaq, ila, zihar, lian,
khula and mubaraat, upkeep, dower, guardianship, gifts,
trusts and trust properties, and wakfs (other than good
cause and altruistic organizations and magnanimous and
religious enrichments) the standard of choice in cases
where the parties are Muslims shall be the Muslim
Personal Law (Shariats)

— Muslim Personal Law (Shariat) Application Act of 1937

The 1929 regulation for non-Muslims was changed a few times

after India acquired its independence from the frontier rule,
particularly in 1978 when the marriage age was raised by 3 years each

20
The Child Marriage Restraint Act, 1929 British India, http://wcd.nic.in/child-marriage-
restraint-act-1929-19-1929
21
Hilary Amster, Child marriage in India University of San Francisco (2009)
http://www.usfca.edu/law/docs/child_marriage/

11
for people.22 The applicability and permissibility of child marriage
among Muslims under the 1937 Act, under India's Constitution, took
on in 1950, stays a disputable subject, with a progression of Supreme
Court cases and decisions.23

The definition of child marriage was last refreshed by India

with its The Prohibition of Child Marriage Act of 2006, which applies
just (a) to Hindus, Christians, Jains, Buddhists and the individuals
who are non-Muslims of India, and (b) outside the state of Jammu
and Kashmir. For Muslims of India, child marriage definition and
regulations in view of Sharia and Nikah have been guaranteed as a
personal law subject.24 For all others, The Prohibition of Child
Marriage Act of 2006 characterizes "child marriage" signifies a
marriage, or marriage going to be solemnized, to which both of the
contracting parties is a child; and child for reasons for marriage is
characterized in view of the orientation of the individual - if a male, it
is - 21 years old, and if a female, - 18 years old.25

UNICEF characterizes child marriage as a proper marriage or

casual association before 18 years old.26 UN Women has
recommended that child marriage be characterized as a constrained

22
Child Marriage in India: Achievements, Gaps and Challenges OHCHR, United Nations,
http://www.ohchr.org/Documents/Issues/Women/WRGS/ForcedMarriage/NGO/HAQCentreF
orChildRights1.pdf
23
Hilary Amster, Child marriage in India University of San Francisco (2009)
http://www.usfca.edu/law/docs/child_marriage/
24
M.G. Radhakrishnan and J. Binduraj, In a league of their own India Today (July 5, 2013),
http://indiatoday.intoday.in/story/child-marriage-indian-union-muslim-league-kerala-
underage-marriages/1/287096.html
25
The Prohibition of Child Marriage Act of 2006 The Gazette of India, Ministry of Law and
Justice, Government of India (January 11, 2007)
26
"Child marriage". UNICEF. 22 October 2014. http://www.unicef.org/protection/57929_58008.html

12
marriage since they accept children under age 18 are unequipped for
giving a legally substantial assent.27

1.2.2 Origin and Causes of Child Marriage

The great decline in the status of women in India had set in
after 1000 B.C. Yajnavalkya around 200 A.D. insisted marrying girls
before puberty otherwise the guardians were responsible for
destruction of an embryo every month. During the time of Law of
Manu a woman's status was reduced with decline in women's
education, practice of pre-puberty marriage and other institutional and
conceptual concepts established supremacy of the male over the
female.28 Ancient India is considered a feudal society based on a self-
sufficient economy by Helen Ralston who states that there was no
limitation on the age of marriage. Various practices like child
marriage kept women in a subordinate position.29

In Manusmriti, a father is considered to have violated his girl if

he neglects to wed her before pubescence. He has no further right to
her. The daughter may take steps to seek a husband if she is not
married within three years of reaching maturity.
Medhatithi's Bhashya states the most suitable age for marriage of a
girl is eight years of age, this can also be found in Manusmriti. As
indicated by the Tolkappiyam, a boy should be married before he is
sixteen years of age and a girl before she is twelve. The Greek student
of history Megasthenes however discusses the early pubescence of

27
"Definition of forced and child marriage". UN Women. 2012.
http://www.endvawnow.org/en/articles/614-definition-of-forced-and-child-marriage.html
28
Sophie Tharakan and Michael Tharakan (1975), Status of women in India: a historical
perspective, Social Scientist, Vol. 4, No. 4/5, pages 118-119
29
H Ralston (1991), Religious Movements and the Status of Women in India, Social Compass,
vol. 38, no. 1, pages 45

13
girls in South India. What's more, as per Edgar Thurston, in South
India a candlelight function was done for girls (vilakiddu kaliyanam)
from seven to nine years, conceivably later, yet consistently before
marriage. Allan Dahlaquist states this is obviously a pubescence
service before marriage which might make sense of Megasthenes'
comments.30

According to a New York Times report, sociologists state that

the Gujjars and similar groups origin of child marriages in India to
the Muslim invasions that began more than 1,000 years ago.
According to legends, invaders raped unmarried Hindu girls or
carried them off as booty, prompting Hindu communities to marry off
their daughters almost from birth to protect them.31,32 Others suggest
child marriages were common everywhere in the world before the
19th century.33

At the time of the Delhi Sultanate, the political climate was

violent and administered by Muslim Sultans in an outright
government. During this period, practices like child marriage had
been introduced and had lowered the status of women even further.
Further child marriage existed among Muslims as well.34,35

30
Allan Dahlaquist. Megasthenes and Indian Religion: A Study in Motives and Types. Motilal
Banarsidass. pp. 113, 114. https://books.google.co.in/books?id=xp35-
8gTRDkC&pg=PA114&f=false
31
Though Illegal, Child Marriage Is Popular in Part of India, The New York Times (May 11,
1998)
32
H Ralston (1991), Religious Movements and the Status of Women in India, Social Compass,
vol. 38, no. 1, pages 43-53
33
Abgeliki Laiou (1993), Coercion to sex and marriage in ancient and medieval societies,
Washington, DC, pages 85-190
34
History of Medieval India: From 1000 A.D. to 1707 A.D, page 131, Radhey Shyam
Chaurasia, Atlantic Publishers
35
Women and the Law, Anjani Kant, APH Publishing, page 8

14
 Parents of a child going into a child marriage are in many
cases poor and utilize the marriage as a method for improving her
future, particularly in regions with minimal financial open doors.36

Share is a practice in India where the lady of the hour's family

moves abundance to the lucky man; by and large, it is a demand and
state of marriage from the husband to be's family. The endowment is
found among all religious beliefs in India, and how much share
demanded and given by the lady of the hour's family has been related
to the time of the girl. Nagi,37 in 1993, proposed that the practice of
endowment makes a trepidation and strain to stay away from late
marriages, and supports early marriage.

Neediness in India has been referred to as a reason for early

marriages. Child marriages of girls are an exit from frantic monetary
circumstances and a method for decreasing the costs of an unfortunate
family.38,39

In certain parts of India, the presence of personal regulations

for Muslims is a reason for child marriages. For instance, in Kerala,
3400 girls of 13-18 ages were married in 2012 in the area of
Malappuram. Of these, 2800 were Muslim (82%). Endeavours to stop
this practice with policing have been dissected and tested in courts by
Indian Union Muslim League and other Islamic associations, with the

36
Sanyukta, M.; M. Greene and A. Malhotra (2003), Too Young to Wed: The Lives, Rights,
and Health of Young Married Girls, ICRW, Washington D.C.
37
B Nagi, Child Marriage in India: A Study of Its Differential Patterns in Rajasthan, ISBN 978-
8170994602
38
Child Marriage and Poverty ICRW, http://www.icrw.org/files/images/Child-Marriage-Fact-
Sheet-Poverty.pdf
39
Targeting Girls in the Name of Tradition: Child Marriage Melanne Verveer, Ambassador-at-
Large for Global Women's Issues, US Department of State, (July 15, 2010)

15
request that setting a base age for marriage of Muslim girls challenges
their religious rights.40

1.2.3 Child Marriage as a Social Evil

As per the definition under the Prohibition of child marriage
Act, child marriage is a marriage in which both of the contracting
parties is a child.41

Child marriage in essence is a gross human rights violation. It

has strong roots in patriarchy and gender inequality. These marriages
adversely impact the development of girls who at a tender age are
thrown into handling a complete household and early pregnancy while
in reality; they should be in schools and receiving education like
every other child. Although this type of marriage affects both girls
and boys, however, it is widely recognised that the girl stands in a
much more disadvantaged position.42

The United Nations Convention on the Rights of the Child does

not directly define child marriage but through the definition contained
in it of a child, read with other Conventions such as the Universal
Declaration of Human Rights, Convention on Elimination of All
Forms of Discriminations against Women (CEDAW) and other recent
Human Rights Council Resolutions, one can safely arrive at the

40
M.G. Radhakrishnan and J. Binduraj, In a league of their own India Today (July 5, 2013),
http://indiatoday.intoday.in/story/child-marriage-indian-union-muslim-league-kerala-
underage-marriages/1/287096.html
41
ibid, s 2(b)
42
UNICEF, ‘Child Marriage’ <http://www.unicef.org/protection/57929_58008.html>

16
conclusion that child marriage is a marriage where either the boy or
the girl has not attained 18 years of age.43

Child marriage is among the most often resolved issues by

both the CRC44 and CEDAW45 Committees in their discourse with
State parties and in Concluding Observations. Both the CRC and
CEDAW Committees have underlined the complementary and
commonly building up elements of the two Conventions. The call
for balance for women and girls applies to all ages, including the girl
child. While the CRC doesn't specifically deny child marriage,
perusing the CRC considering the CEDAW gives earnest reasoning
to nullify the early marriage.. Recently UNICEF and UNFPA also
launched the ‘UNFPA -UNICEF Global Programme to Accelerate
Action to End Child Marriage’ which is a multiple countries
initiative to accelerate efforts to end child marriage.46

1.3.4 Development of Law relating to Marriage

in India
The law in India relating to child marriage developed in the
20th century when for the first time the Child Marriage Restraint Act,
1929 was enacted after much push from reformers47 of the time who
had sought the enactment of a specific legislation on child marriage.

43
Jennifer Parsons and others, ‘Economic Impacts of Child Marriage: A Review of
Literature’ (2015) 13(3) RFIA <http://www.tandfonline.com/doi/full/10.1080/
15570274.2015.1075757> accessed 12 September 2018
44
Convention on the Rights of the Child.
45
Convention on the Elimination of Discrimination against Women.
46
UNFPA, ‘New Multi-country Initiative will Protect Millions of Girls from Child
Marriage – UNICEF/UNFPA’ (8 March 2016) <http://www.unfpa.org/press/new-
multi-country-initiative-will-protect-millions-girls-child-marriage-%E2%80%93-
unicefunfpa> accessed 12 September 2018
47
These include Behramji Malabari, Rukhmabai, Pandita Ramabai and Anandi Gopal Joshi.

17
This law however was ineffective in letter and failed miserably in
achieving its objective. The practice continued unabated for nearly
70-80 years post the enactment. This is because of the widespread
sanction it received from the masses. Child marriage as an
institution received its strength from the fact that women remained
absent from the law making process. Their distinct and sensitive
needs were never looked into as their participation itself in the law
making process was not considered important. This feminist critique
of law can be applied to the various levels of law making as well as
in the legal analysis of child marriage.48

The new and current legislation of the Prohibition of Child

Marriage Act, 2006 brought in a sigh of relief. Changes that were
sought for under the CMRA were brought in with this enactment. As
per the CMRA, child marriages were neither void nor voidable. In the
PCMA, they have been made voidable49 at the choice of the party who
was a child at the time of the marriage.50 This means that now girls
or boys who were married as children could approach the court to
have their marriage annulled.51 The Act also increased the punishment
to thorough imprisonment which might stretch out to two years or a
fine which might reach out to one lakh rupees or both.

48
Denise Reaume, ‘What is distinctive about feminist analysis of law?: A Conceptual
Analysis of Women’s Exclusion from Law’ (1996) 2 Legal Theory 265; also Jaya
Sagade, Child Marriage in India: Socio-legal and Human Rights Dimension (2nd edn.,
Oxford University Press)
49
Voidable Marriage: Contract with legal force and effects when made that can later be
annulled by court by a recession process
50
The Prohibition of Child Marriage Act, s 3
51
Annulment: When a marriage is terminated and treated legally as though it never
occurred.

18
 Despite the existence of a stronger law on child marriage, the
practise has continued at an alarming rate. This is also because there
are still loopholes within the law. The legal contradictions on age of
marriage, under-reporting of cases, the voidable nature of child
marriages and the low rates of annulments of child marriages in India
are some of the major problems when we talk about the law and its
implementation. It also leads us to question about whether child
brides are aware of their rights under the law and whether they would
be provided the requisite safeguards in the event that they stand up to
have their marriage annulled.

The Criminal Amendment Act, 2013 was a huge step with

regards to strengthening laws with regards to Rape and increasing the
age of consent from 16 years to 18 years. However, Exception 2 to
Section 375, IPC continued to remain present in its earlier form. This
Exception inadvertently legalised forced sexual intercourse within
marriage and especially when a girl is between 15 years to 18 years it
fell within the purview of child marriage. On one side child marriage
itself is an offence but on the other hand violence against them
received protection under the parasol of marriage.

1.3.5 Impacts of Child Marriage

Besides lapses in law which are discussed in the following

chapters, there are other socio-economic factors that contribute
heavily towards the prevalence of this practise. Briefly, these include
poverty, lower levels of education, patriarchal norms, insecurity and a
strong cultural hold. It is also said to be a toxic result of gender
inequality. Parents of impoverished families believe that getting their
daughter married early is a way to secure their future. The ease of

19
giving a smaller amount of dowry is another reason why parents
engage in such a practise more that willingly. In times of
humanitarian crises, marriage of a girl child is again considered a way
of securing her against sexual violence while it actually increases in
such times.52 34
Sometimes these marriages even become a means for
trafficking of children for sexual exploitation. Child marriage has
been even argued by some as a form of human trafficking.53

The impacts that a child marriage has on the victims are far
worse than the causes that lead up to their occurrence.

These impacts that are listed above are of an irreparable nature.

This marriage causes a huge dent in the lives and aspirations of many
girls and deprives them of their basic human rights.

In the words of Babatunde Osotimehin, M.D, Executive

Director, UNFPA:

“Child marriage is an appalling violation of human rights and

robs girls of their education, health and long-term prospects.”54

According to Anthony Lake, Executive Director of UNICEF:

“Child marriage is not only wrong, it is dangerous. It

exposes a young girl to profound health risks from early
pregnancy and difficult childbirth and it exposes her
baby to complications of premature birth.”55

52
UNFPA (n 4)
53
Michele Goodwin, ‘When I nstitutions Fail: The Case of Underage Marriage in India’, (2012)
Minnesota Legal Studies Research Paper No. 12-60, <http://papers.ssrn.com/sol3/ papers.cfm?
abstract_id=2 174452>
54
UNICEF (n 6)
55
Ibid.

20
 According to the UN, the leading causes for death of girls
aged between 15-19 years in developing countries are pregnancy
and childbirth.56 As per their statistics, of the 16 million adolescent
girls who give birth to children every year, about 90 per cent of
them are married.57 About 50,000 of them die all in low and middle
income countries as per UNICEF.58 Stillbirths and newborn deaths
are higher by 50% among mother under the age of 20 than the
mothers who got pregnant while they were in their 20s. Therefore
the health impacts of child marriage can be fatal too.

1.4 LAWS AGAINST CHILD MARRIAGE

1.4.1 The Child Marriage Restraint Act of 1929

The Child Marriage Restraint Act, also called the Sarda Act,59
was a regulation to limit the practice of child marriage. It was enacted
on 1 April 1930, reached out across the entire country, with the
exemptions of a few royal states like Hyderabad and Jammu and
Kashmir, and applied to each Indian resident. Its objective was to
dispose of the perils put on little children who couldn't handle the
pressure of married life and stay away from early passings. This Act
characterized a male child as 21 years (initially 18) or more youthful,
a female child as 18 years (initially 14) or more youthful, and a minor
as a child of either sex 18 years or more youthful (initially 14). The
punishment for a male somewhere in the range of 18 and 21 years
wedding a child became imprisonment of as long as 15 days, a fine of

56
Ibid.
57
Ibid.
58
Ibid.
59
Goswami, Ruchira (2010). "Child Marriage in India: Mapping the Trajectory of Legal
Reforms". http://sanhati.com/excerpted/2207/

21
1,000 rupees, or both. The punishment for a male over 21 years old
became imprisonment of as long as 90 days and a potential fine. The
punishment for any individual who performed or coordinated a child
marriage function became imprisonment of as long as 90 days and a
potential fine, except if he could demonstrate the marriage he
performed was not a child marriage. The punishment for a parent or
watchman of a child occurring in the marriage became imprisonment
of as long as 90 days or a potential fine.60 It was amended in 1940
and 1978 to keep raising the periods of male and female children.

1.4.2 The Prohibition of Child Marriage Act, 2006

In response to the plea (Writ Petition (C) 212/2003) of the

Forum for Fact-finding Documentation and Advocacy at the Supreme
Court, the Government of India brought the Prohibition of Child
Marriage Act (PCMA) in 2006, and it happened on 1 November 2007
to address and fix the deficiencies of the Child Marriage Restraint
Act. The adjustment of the name was intended to mirror the
anticipation and restriction of child marriage, as opposed to limiting
it.61 The previous Act also made it difficult and tedious to act against
child marriages and didn't zero in on specialists as potential figures
for forestalling the marriages. This Act kept the periods of grown-up
males and females the equivalent, however, rolled out a few
significant improvements to additionally safeguard the children. Boys
and girls are constrained into child marriages as minors have the
choice of voiding their marriage as long as two years subsequent to

60
"The Child Marriage Restraint Act". Government of India Ministry of Women and Child
Development. https://en.wikipedia.org/wiki/Ministry_of_Women_and_Child_Development
61
"Unicef India - UNICEF" (PDF). http://www.unicef.org/india/Child_Marriage_handbook.pdf

22
arriving at adulthood, and in specific conditions, marriages of minors
can be invalid and void before they arrive at adulthood. All resources,
cash, and gifts should be returned if the marriage is nullified, and the
girl should be furnished with a position of residency until she weds or
turns into a grown-up. Children brought into the world from child
marriages are viewed as genuine, and the courts are supposed to give
parental custody in light of the children's wellbeing. Any male more
than 18 years old who goes into a marriage with a minor or any
individual who coordinates or leads a marriage service can be
punished with as long as two years of imprisonment or a fine.62

1.5 CONSEQUENCES OF CHILD MARRIAGE

1.5.1 Early maternal deaths
Girls who wed before in life are less inclined to be educated
about regenerative issues63 and along these lines, pregnancy-related
passings are known to be the main source of mortality among wedded
girls somewhere in the range of 15 and 19 years old.64 These girls are
two times bound to pass on in childbirth than girls somewhere in the
range of 20 and 24 years old.65 Girls more youthful than 15 years old
are multiple times bound to bite the dust in childbirth.66

62
"Child Marriage in India: Mapping the Trajectory of Legal Reforms at Sanhati".
http://sanhati.com/excerpted/2207/
63
Chandrasekhar, S., 2010, "Factors Affecting Age and Marriage and Age at First Birth in
India," Journal of Quantitative Economics, pg. 83
64
"Statistics by Area- Child Marriage". childinfo.org. 2009.
http://www.childinfo.org/marriage.html
65
"Early marriage: A childhood interrupted". UNICEF.
http://www.unicef.org/india/child_protection_1536.htm
66
"Child Marriage Facts and Figures". International Center for Research on Women.
http://www.icrw.org/child-marriage-facts-and-figures

23
Infant health
Infants born to mothers under the age of 18 are 60% bound to
bite the dust in their most memorable year than to moms beyond 19
years old. If the children make due, they are bound to experience the
ill effects of low birth weight, ailing health, and late physical and
mental development.67

1.5.2 Fertility outcomes

A review led in India by the International Institute for
Population Sciences and Macro International in 2005 and 2006
showed high richness, low ripeness control, and unfortunate
fruitfulness results in information on child marriages. 90.8% of
youthful wedded women reported no utilization of a prophylactic
preceding having their most memorable child. 23.9% reported
including a child inside the main year of marriage. 17.3% reported
having at least three children throughout the span of the marriage.
23% reported quick recurrent childbirth, and 15.2% reported an
undesirable pregnancy. 15.3% reported a pregnancy end (stillbirths,
miscarriages or abortions).68 Fertility rates are higher in ghettos
than in metropolitan regions.69

1.5.3 Violence
Young girls in a child marriage are bound to encounter abusive
behaviour at home in their marriages rather than more established

67
Hervish, Alexandra, Charlotte Feldman-Jacobs, 2011, "Who Speaks for Me? Ending Child
Marriage," Population Reference Bureau, pg. 2
68
Raj, A; Saggurti, N; Balaiah, D; Silverman, JG (2009). "Prevalence of child marriage and its
effect on fertility and fertility-control outcomes of young women in India: a cross-sectional,
observational study". Lancet. 373: 1883–9. doi:10.1016/S0140-6736(09)60246-4.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2759702.
69
Chandrasekhar, S (2010). "Factors Affecting Age and Marriage and Age at First Birth in
India". Journal of Quantitative Economics: 86

24
women. A review directed in India by the Women showed that girls
wedded before 18 years old are two times as prone to be beaten,
slapped, or compromised by their husbands and multiple times more
likely to experience sexual violence.70 Young brides often show
symptoms of sexual abuse and post-traumatic stress.

1.6 PREVENTION PROGRAMMES IN INDIA

Apni Beti, Apna Dhan (ABAD), which translates to "My
daughter, My wealth," is one of India's most memorable contingent
money move programs devoted to deferring youthful marriages in the
country over. In 1994, the Indian government implemented this
program in the state of Haryana. On the introduction of a mother's
first, second, or third child, they are set to get Rs. 500 inside the
initial 15 days to cover their post-conveyance needs. Alongside this,
the government gives Rs. 2,500, to put resources into a drawn-out
reserve funds security in the girl's name, which can be subsequently
liquidated for 25,000, after her 18 birthday. She can get the cash if
she isn't married. Anju Malhotra, a specialist on child marriage and
juvenile girls said of this program, "No other contingent money move
has this focal point of postponing marriage... It's a motivator to urge
guardians to esteem their daughters."71

The International Centre for Research on Women will assess

Apni Beti, Apna Dhan throughout the span of the year 2012, when the
program's underlying participants turn 18, to check whether the
program, particularly the money impetus, has roused guardians to

70
United States Agency for International Development, 2007, "New Insights on Preventing
Child Marriage: A Global Analysis of Factors and Programs," pg. 9
71
"Child Marriage Facts and Figures". International Center for Research on Women.

25
postpone their girls' marriages. "We have evidence that restrictive
money move programs are exceptionally viable in making sure girls
stay enrolled and getting them vaccinated, yet we don't yet have
confirmation that this strategy works for preventing marriage," said
Pranita Achyut, the program manager for Apni Beti, Apna Dhan.
"If Haryana state’s the approach ends up being important, it might
actually be increased to have a significant effect in many more girls'
lives - and not just in India".

As per above dimensions of the problem the following

Hypothesis emerges which is investigated and researched in the work
submitted:

(1) What is the practical aspect of socio legal study about

child marriage
(2) This problem effect on human rights of child as cancer
(3) Lower the economic status of the family, higher will be
the incidence of child marriage
(4) Lower the educational level of parents higher will be the
incidence of child marriage
(5) Minority status of the community increase the
probability of child marriage
(6) Against the problem the administrative and legislative
provision or system is not proper
(7) There is a positive relationship between the expenses on
account of socio-practice and customs and the tendency
of child marriage
(8) To protect child right judiciary and NGOs so actively

26
 (9) Whether executive machinery is sincere in preventing
the child marriage even the political leaders support
child marriages more so during the time of election

The research methodology to investigate the subject has been

confined to the analysis and examination to understand and study
such a vital national problem the researcher proposed to study all the
methods known in socio legal work such as use of documentaries
materials and field study and will try to know the recent law, trends
and problem facing by affect persons and find out the solution for
their. In view of the nature of the theme the researcher feels that the
study requires both types of approaches. The jurisprudential analysis
of the theme requires a theoretical study; therefore, the study needs a
doctrinal approach. On the other hand the practical aspect of the
problem is also equally important which requires a non-doctrinal
approach. Therefore, both the methods doctrinal as well as non-
doctrinal methods will be employed.

Researcher has carried out this research work by analytical

way, legislative provision and various important judicial judgments
on present subject matter. Besides this, researcher has also evaluated
the effectiveness of the administrative machinery in curbing out the
course of the child marriage.

Researcher while investigating the problem dwells upon above

research hypothesis and classified into the subject matter the present
study has been divided in the following chapters:

Chapter-1 : Introduction

Chapter-2 : Historical Background

27
Chapter-3 : Causes and Impact

Chapter-4 : Child Marriage and Human Rights

Chapter-5 : Restraint of Child Marriage : Related Laws and

Analysis

Chapter-6 : Enforcement of Child Marriage Law in Rajasthan

Chapter-7 : Child Marriage : A Comparative Study of

Neighbouring Countries

Chapter-8 : An Empirical Study

Chapter 9 : Conclusion and Suggestions

In the Chapter-1st, the Researcher raised the curtain and

introduced the problems of child marriage. He explained meaning
and definition of child, origin and causes of child marriage, and
also described about the development of Law around Child Marriage
in India, Impacts of Child Marriage and existing Laws against
Child Marriage.

The study of Chapter-2nd has been revealed the history of child

marriage in India, the eight forms of marriages in ancient India,
marriage in ancient period, social movements, significance of
marriage in Hindu philosophy, the present situation, the serious
consequences of child marriage, situation of Indian women in 21st
century, legislative measures, etc.

In Chapter-3rd, the researcher has discussed about causes of

child marriage, child marriage as a custom, child marriage - a
consequence of urbanization and impact of child marriage.

The study of Chapter-4th has been displayed the violation of

human rights towards child marriage :, practice of child marriage

28
against human rights, factors driving child marriage, health
consequences of child marriage, despite the law, the pace of child
marriages remains extremely high in India.
In Chapter-5th, the researcher has given statutory analysis of
restraint of child marriage, criminal liability of the bridegroom under
the act, child marriage restraint act and the prohibition of Child
Marriage Act, 2006.

Chapter-6th has discussed about the constitution of India,

national policies against child marriage and enforcement of laws in
Rajasthan.

Chapter-7th has discussed about effects of child marriage on

global regions, Europe, Asia, America and neghbouring countries like
Bangladesh, Nepal, Pakistan, Iran, India, etc.

The study of Chapter-8th has been displayed the empirical study with
data collection, statewise key observations and findings,
causality and resultant impacts of child marriage.

Obviously the ultimate chapter of the study is Chapter-9th;

Conclusion & Suggestions; which incorporates the conclusion,
suggestions and recommendations of the study.

_________________

29