Uniform Civil Code: What and Why Not?

Whenever I mention anything about any aspect of personal laws or their reforms, whether in my blog or in conversations, I am confronted with questions regarding Uniform Civil Code.   It is as if unless you have an opinion on Uniform Civil code, you are not entitled to talk on any other aspects of personal laws!

It always surprises me as to why so many people are so concerned about the Uniform Civil Code (UCC) as if UCC is the panacea for all our social ills! I for one have never found UCC important enough a subject in the social context of India.

Generally, there are two streams of supporters for UCC. 

First stream consists of atheists and liberals who want India to adopt uniform personal laws that are based on internationally accepted universal principles, for all its citizens, irrespective of their religion, caste, creed or tribe.  They base their argument on the need to protect all our citizens from injustices bestowed upon them by factors like religion, caste etc.  Universal but alien rules are their demand and these are mostly based on western concept of human rights and personal laws.  In other words, this view is similar to saying that let us adopt English as the sole language for India so that there is uniformity among all its citizens.  We will discuss later as to why such a view is not practical in India.

The other stream consists of people who are otherwise holding strong views on religious matters; to be more specific, the proponents of Hindutva!   They can be spotted from their eagerness to quote the ‘right to marry 4 women’ and the ‘right to easy divorce by uttering the word ‘talaq’ for 3 times’, available to Muslim men, as examples for the injustice that justifies adoption of UCC.   Talk a little further and most likely you will find the hate of other religions than any genuine wish for uniformity in civil laws as the reason for their vehement support for UCC.  In other words, for them UCC is a mere tool to beat the minorities with (more often than not for narrow political purposes)!

What is Uniform Civil Code?

Let us see what this Uniform Civil Code is all about.   UCC generally refers to that part of law which deals with family affairs of an individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe. 

Laws relating to crime and punishment are uniform for all citizens.  So are the laws relating to commerce, contracts and other economic affairs.   Procedural laws including laws relating evidence etc are also uniform for everyone.  Laws of taxation are same for all except that it recognises certain religious customs prevalent in the society, like Hindu Undivided Family (HUF), for special treatment. 

However, family affairs such as marriage, divorce, inheritance, guardianship and adoption are legally permitted to be governed by customs or rules applicable to the persons and their community.  This has been the practise from the time of British rule (even before that), because it was considered prudent not to disturb the people’s religious and community customs as far as their private affairs are concerned.  The same position continued even after the independence and people were permitted to follow their respective personal laws.

Over the period, there have been attempts to codify personal laws applicable to each religious group.  The codified personal laws relating to marriage, divorce and inheritance are mainly:

•  The Indian Christian Marriage Act of 1872 (applicable to whole of India except areas of erstwhile Travancore- Cochin, Manipur and Jammu & Kashmir),
• Anand Marriage Act, 1909 (For Sikh marriages),
• Cochin Christian Civil Marriage Act of 1920 (applicable for Travancore-Cochin areas),
• Muslim Personal Law (Shariat) Application Act, 1937 (making Shariat laws applicable to Indian Muslims),  
• The Parsi Marriage and Divorce Act, 1937
• Hindu Marriage Act, 1955 (applicable to not merely Hindus, Buddhists and Jains but also to any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law),

Hindu Marriage Act (the latest and covering most of the population) itself provides for exemptions to certain clauses where custom or usage governing each of the parties so permits.  For example, the legality of marriages involving cousins prevalent in certain groups of Hindus belonging to South India is protected by this exemption.  Similarly, the Act itself is exempted for people who are governed by any other law.  Courts have recognised certain Tribal customs as ‘other laws’ thereby exempting the members of certain tribes from applicability of the Hindu Marriage Act.  In other words, even Hindu Marriage Act is not uniform for all Hindus/persons covered by the Act.

While Indian Parliament has enacted a secular law for marriages (The Special Marriage Act, 1954) that provides a system of marriage irrespective of the religion or faith followed by either party to the marriage, the number of marriages that occurs under this system is still negligible.  Most of the proponents of UCC must ask themselves as to why they are not adopting this uniform law of marriage, for themselves or their families, and then they will get the answer as to why India did not adopt UCC!

UCC is definitely not about forcing the customs of majority onto minority!

Why we cannot have UCC?

The family life of Indians is, rightly or wrongly, guided by their respective religious and customary beliefs.  Religions more or less survive only through the ceremonies and social customs enforced upon its members. If they are negated, soon enough religions will lose their eminence in social sphere.

On the other hand, if a different set of rules that violate the religious precepts are enforced upon individuals that would negate the fundamental rights of ‘Freedom of conscience and free profession, practice and propagation of religion’ guaranteed under Article 25 of the Constitution of India.

The debate on UCC must be widened beyond 4 wives and 3 talaqs.  Look at the honour killings and Khap Panchayat verdicts. They all want to enforce their religious and customary beliefs on the members of their family and community.  If a system other than what conforms to their faith is forced up on them, it invariably leads to social unrest.

India is a country of million customs and communities. Everyone thinks that his/her faith and customs are the best.  No one wants to consider reforming own system, yet wants to worry about others’ systems.  As I already mentioned, UCC is used more often than not as a tool for minority bashing rather than genuine social reforms.   Such minority bashing will only make the members of those communities more possessive about their identity and customs, thereby further reducing any scope for a UCC.

The unfortunate interference and mixing of religions with politics has further complicated the social atmosphere.  The political stakes will ensure that no one can enforce a UCC over the multicultural society of India.  Instead, interested politicians will only keep the issue of UCC burning to bash their opponents and please their vote banks!

UCC is not necessary

In my opinion, there is no urgent need to force any UCC on an unwilling population.  Most people, be it Hindu, Christian, Muslim or any other community, are not ready to adopt truly secular laws separated from religious customs.  Also, it is not right to force the customs of one group, howsoever dominant it may be, upon other groups.  So, we can try to solve thousands of other less contentious problems that our society is facing and are more public in nature than personal laws!

As for the social obligations or protection of human rights etc are concerned, we can ensure certain bottom line rules through general laws. For example, Prohibition of Child marriage Act, 2006 is a general law that prevails over all personal laws.  Any conditions that are considered appropriate can be incorporated in that Act so as to ensure no child marriage takes place even if personal laws permit it.

Another such example is Section 125 of the Code of Criminal Procedure (CrPC).  This section provides a system by which courts are permitted to pass orders for maintenance of wives, children and parents, under criminal procedures, irrespective of person’s religious status.  

As far as personal laws are concerned, what we need is to bring reforms in each of them to make them relevant for the changing times.  Instead of an external enforcement, let these changes be internal reforms.  That is better for the preservation of social fabric of the nation and sense of belongingness of its people.  Let us not quote examples or ape less sensible systems like those in religious countries.  We don’t cut our noses to spite others!

Way forward

We must, however, provide a secular and uniform alternative to people, as in the case of Special Marriage Act, in case they are voluntarily willing to adopt such systems.  These systems can be modelled as far as feasible, on universally accepted practices suiting to the sensitivities of Indians. 

Let us give the option to people to opt out of the classifications based on religions.  If a person decides he does not want to be governed by any religious personal laws, he must have that right.  Also, we must ensure adequacy of general laws to ensure basic human rights and human dignity are protected.

We must also encourage intra- religious debates on their respective personal laws for bringing in timely reforms.  This should be done in an atmosphere of trust and equality. Also any inputs from outside the group must be genuine and advisory in nature than being one of bashing and pulling down!

Always remember that if your personal law has a better provision, it is to your advantage and not to others who do not have it in their personal laws.  So, leave it to them to figure out whether they want an advancement or not and make it easier for reformists within their groups to find a way to convince others on the need for such reforms.  Tolerance, as I always say, is not a concession but an obligation!

Making Crimes’ Own Country out of God’s Own Country!

National Crime Records Bureau (NCRB) maintains the statistics relating to the reported crimes across the country. It gives the State wise and City wise breakup of the reported crimes for each year.  These statistics help in comparing the trends and understanding the landscape of crimes for planning effective measures to counter them.

However, Statistics has one inherent problem. It can be misused as much as it can be used. Times of India in its report, dated 24^th June 2012, based on the NCRB report for year 2010, has chosen to misuse the statistics to present a grim view of the State of Kerala and its crime levels.

‘Paradise lost’, ‘Kochi Most Dangerous City’, “Even women are not very safe in the coconut country’, are some of the phrases used in the report to paint an alarmist picture of Kerala while comparing it with the ‘badlands of North India’ and ‘Delhi which is often called the most unsafe place for females’.  I do not know if it is mere spicing up of a report for sensationalism or any particular agenda and would have ignored this report, but for the reactions that I see in my Twitter timeline.  The reactions are either gleeful on seeing one’s neighbour’s bad luck or concerned about the safety of living in such a dangerous place.  So, I am writing this to put some aspects of this report in perspective.

Crimes vs Reported Crimes

First of all, what is being collated and reported by NCRB are not crimes but complaints received under Indian Penal Code and other Special & Local Laws, including those initiated suo moto by the Police authorities. In other words, the NCRB numbers will go up when people are more aware of their rights and are willing to report any crimes against them to Police.  It would also go up when the Police is people friendly and trustworthy.  So, if the crime incidences are equal in two places under comparison, the higher reporting of crimes in one place is a positive for that place and its law enforcing authorities.

In other words, all other things being equal, the higher per capita number of crimes reported may not be as negative as ToI is seeking to project, for ‘a State that reaps praise for scoring high on literacy and health indicators’.  Everyone knows crimes have no correlation with ‘literacy and health indicators’. If at all, literacy and health indicators will only have a correlation with prompt reporting of crimes, which seems to be the case in Kerala.   But ToI reporter had to mention this ‘ State that reaps praise for scoring high on literacy and health indicators’ to display his real intention of running down the State’s image! 

Apple to Apple

Now let us consider the duplicity in ToI reporting.  It uses crime rate – number of offences committed per lakh population- to show that Kerala is the capital of crimes, because there are other States with much higher number of reported crimes. Whereas , when it comes to reporting what is termed as ‘violent crimes’, it chose to merely report the numbers as Kerala has a higher number of such crimes reported and it suits the purpose to compare the numbers than per population rates!

Let us look at the type of crimes that are included in the category of ‘violent crimes’ and their reported numbers in Kerala for the year 2010:

Category	Reported in Kerala	Highest reported number	Reported in
Murder	363	4401	UP
Attempt to murder	361	4004	UP
Culpable Homicide	86	1401	UP
Rape	634	1563 (For Delhi it was 507)	UP
Kidnapping & Abduction	261	6321 (For Delhi it was 3208)	UP
Dacoity	74	644	Bihar
Prep & Assembly for Dacoity	221	687	WB
Robbery	636	3721	Maharashtra
Riots	8724	8809	Bihar
Arson	374	1229	Maharashtra
Dowry Death	22	2217	UP
Total Violent Crimes	11756	27225	UP
% share to All India Crimes	4.9%	11.3%	UP
% to Total Congnizable Crimes	7.9%	34.4%	Manipur

I request readers to use the comprehensive Table published by NCRB to get an overall picture on the above crimes.  I have quoted only the above numbers to put things in perspective.  Out of the 11,756 Violent Crimes reported in Kerala, 8,724 are in the category of riots... Kerala and riots? ... Does that say something to you?

Also look at the comparisons of percentage share to All India Crimes in the same category... It is a mere 4.9% (including the 8724 cases of riots).  Similarly as a percentage to total reported cognizable crimes, violent crimes (including the 8724 cases of riots) amounts to only 7.9% within the State.  Compare this with 34.4% in Manipur.  These percentages for most other larger states are also almost double to that of Kerala.  It shows the total number of cases being reported in Kerala is relatively minor in nature.

Ground Reality

As a person who lived in various parts of India for last 27 years, out of a total 45 years, with frequent visits back home in Kerala, I can assure you that the life in Kerala is comparable and relatively better than most places in India.  Yes, Kerala has its share of negatives. But, higher rate crimes are not one of them.  I would any day prefer to live in Kerala if my career objectives permitted it.

If you are genuinely concerned about the situation in Kerala, you can take some relief from the fact that, till today, I have left my family consisting of aged parents, working wife and two small children back in Kerala and that is also because of my confidence in the law and order situation there.  I genuinely feel Kerala remains the best place for a child to grow up among all the places that I lived in the past that includes Delhi, Mumbai, Bangalore and Chandigarh among others.

Kerala neither belongs to God nor Criminals!

It is not my intention to say that Kerala is literally God’s Own Country as projected by the Tourism department in their brochures.  I would like to remind that the tagline ‘God’s Own Country’ has to do more with the scenic beauty of Kerala than the living standards or crimes rates of the State. 

I would like to see hundreds of things changed in Kerala for the better. For example, I would love to see complete eradication of frequent Bandhs/ Hartals that would probably account for over 90% of the riots reported in the State. Anyone who had witnessed/followed a true riot and then a Hartal in Kerala will know the difference of the two, though NCRB statistics or ToI reporter will not understand the same!

Anecdotes on Statistics

Let me just paraphrase two incidences that I have read about misuse of Statistics in interpretation of facts. 

First report appeared when graduation studies were introduced for girls, for the first time in USA.  After the first course was completed some paper like Times of India reported that it is not prudent to continue admitting girls for such higher studies as 1/3^rd of the girl students got married to the faculty and 1/3^rd fell in love with fellow students. What they conveniently forgot to add in the report was the total intake of girl students was only 3 in that first course!

Second incidence is about a study which reported that it is safest for pedestrians to walk in the middle of a road.  This finding was based on statistics that recorded the number of accidents on either sides of the road and middle of the road.  It was found that maximum number of accidents involving pedestrians occurred while they were walking on either side of the road and minimum when they were walking in the middle of the road....  If you want to follow this finding, well you might get added to the NCRB’s statistics on reported crimes!

 Conclusion

People and Police of Kerala, don’t bother about these statistics... please carry on with prompt reporting of cases and follow up on them as mandated by rule of law. Also, continue with the efforts to improve Kerala as a better place for its inhabitants to live. Meanwhile let newspapers sensationalise our minor shortcomings and denigrate our greater achievements, for whatever objectives!

Do States Have Monopoly Over Violence?

Recently, my wife was reading her morning newspaper that carried a story and a photograph in which a Police officer was shown as aiming and shooting at rampaging students.   During the course of reading she showed the picture to my 7 year old daughter and tried to explain what was happening.  Daughter had one look at the picture and almost disdainfully dismissed all the explanations being given by the mother and said:

 “What is your problem? Police are doing their job... Who asked these people to go there and fight them?”

  

My wife was surprised at this direct answer and spoke to me immediately.  I had a good laugh at the exchange.  But later it made me think.... was this 7 year old girl right in thinking the way she did? 

There is no doubt Police were ‘doing their job’.  After all, the students came there and resorted to violence on their own volition.  But the Police were asked by the State to be there and take necessary steps to stop the violence, that being their job!  Also, a violent mob with numerical superiority cannot be controlled except with use of more severe power.

She was further proved right when the details of circumstances of shooting came out later in which it was revealed that the Police Officer resorted to shooting as the violent students were blocking the road and preventing the injured policemen being taken to hospitals, for treatment.   I am sure that if I was in the position of that Officer, responsible for the safety and life of my men, I would shoot too!

Sometimes the innocent logic of children gives more accurate perspectives than what we adults with our prejudiced minds can give! For her, it didn’t matter who was at the receiving end... But we elders will form our reaction based on whether the students belonged to our party or some opposite party!

Such situations are not unique.  We come across the news of use of power by the State arms like Police and Military against its own citizens.  In an ancient kingdom or a modern autocracy anyone can easily understand the Forces acting against own people if it is necessary to protect the King or the autocrat.  But in a democracy, use of force by State machineries becomes questionable as it amount to use of force by servants against their own masters!  In democracy, employees of State are servants and people are masters!

We often get to hear about State violence as a legitimate defence when we question violent methods used by extremist forces and even political groups.  Maoists and other motley groups that use violence as a tool for forcing State to accept their agenda, often justify their violence by citing the violence of State.

While not questioning the need for the States to employ better conciliation methods in resolving public grievances of its citizens, one cannot envisage a situation where the State is made to stand by and watch while its citizens are resorting to violence.  The States have to control any violent act of its citizens, no matter what the purpose and motives are behind such acts.  

In order to understand this further, we need to look at what is a State and what is the source of its powers and why its powers include the right to use violence.  State has no material existence. It is not the land mass within the borders.  It is merely an abstract legal concept; a juridical person.  It represents the collective authority within a political unit.  The source of this authority is its own people.  For example, Indian State got its powers from the Constitution that was a result of the act of “We the People, having solemnly resolved to constitute.....” as stated in the Preamble to the Constitution.

In other words, State’s authority represents the accumulated rights surrendered by its citizens in its favour.   The accumulation makes it the most powerful entity within its geographical boundaries. It assumes sovereignty over the areas under its administration and over all its inhabitants.  Its instruments like legislature and executive derives power from it to make laws and regulations and enforce them over the citizens and others.

Why do people voluntarily subject themselves to such powers of the State?  It is because, without such a centralised power and enforcer, the result will be anarchy and chaos leading to disintegration of the nation itself.   This surrender is the small cost that we all pay for the security, safety and order that the State provides us.  Once surrendered, same cannot be retracted except under a revolution or anarchy.

The nature of powers entrusted in a State could vary in each case.  Most modern States have restrictions and regulations imposed on it as well, so as to balance the interests of the people.  Fundamental rights enshrined in Indian Constitution are examples for such restrictions on the exercise of powers by a State.

Among other instrumentalities, States invariably have military and police wings to counter any external or internal aggressions, respectively.  These wings are expressly authorised to use force and violence in performing their functions, subject of course to any regulations governing them.  While it may seem odd as in that old Malayalam proverb ‘Vadi Koduthu Adi Vanguka’ (meaning, Gift a stick and get beaten up) that one is gifting away powers to use violence against oneself, it was done with clear understanding that such a power in State is inevitable and unavoidable.

Now that we have discussed how and why these powers to use violence are bestowed upon States, let us see if States should have monopoly on violence.  The basis of empowering States with power of violence is to ensure stopping of violence by all others.  So, when a person decides to become part of a State or is born in a State, it is implied that he or she is giving up the right to use violence as a means to get redressal of any grievances, be it against State agencies or private individuals.  Violence by anyone other than authorised State agencies is made a crime, punishable as per laws of the State.

In other words, the monopoly in violence is one of the basic features of modern States.  If any sub groups start resorting to violence for any purpose, then it is the duty of the State to put a stop to it.  So, no one can complain about State agencies using force to control violators of this basic rule.  One can only question if there is unjustified or excess use of force, or illegal use of force, as in the case of fake encounters etc.  On the contrary, State must be made answerable if it fails in using necessary force to stop violence by any group, as in the case of a riot. 

I agree with my daughter... State/Police must do its duty and even use force where necessary.  It can’t remain a mere spectator, in dereliction of duty bestowed upon it, to violence by others, irrespective of the cause, howsoever noble it might be.

We as citizens must learn, and State must facilitate, to use methods other than violence and use of force to get our voices heard and just demands met.  State is a necessary evil for our own well being and therefore, we can’t wish away or weaken it. Any Redressal against State must be through only the judicial or other non-violent methods.

An Appeal to Sikh Brothers and Sisters!

This post is a collection of tweets that contain a very sensible and emotional appeal from @sdsanddunes, a proud Sikh herself, to her Sikh brothers and sisters, on the folly of creating memorials for terrorists from the community who fought this nation and caused so much misery to the community itself.....  This nation survives on the strength of such wise and passionate feelings! 

With kind permission from my friend @sdsanddunes

My dear Sikh brothers and sisters,

 I hope you also realize how militants had terrorized and subjugated the whole community, who suffered a lot.   Most of you may not have been born but, I was very much around!

Militancy only makes the common man suffer... and die...for the benefit of a few, who con people into believing they are fighting for a 'just' cause... just to gain a few followers, fame, or, something else. 

Injustice cannot be fought by becoming unjust ourselves. 

Congress is not India, nor was Indira who misjudged, nor, Rajiv Gandhi, who deliberately encouraged genocide.  But, please understand, these militants were not 'friends'...they were 'fiends'!

I have heard a lot about wanting justice for 1984 riots. I also want that. But then, work for that! Don't become tools in others' hands!

I'm noticing since some time now, the efforts of some vested interests, to arouse Sikhs' passions against the Nation, using religion as tool.  Many living abroad are showing a sense of outrage against non-existent things and trying to arouse religious passions by misinformation.

Some vested interests and politicians use people for their own ends... creating militants...which solve nothing... Nothing! Only brings misery!

This Nation belongs to us...anybody trying to convince you otherwise, has his own selfish agenda! Those who die protecting the Nation from fiends are the real 'Heroes'!  Don't disrespect their supreme sacrifice by felicitating those who try to undermine our very ethos and dignity.

Why don't Akalis make memorials for those who died fighting the enemy in wars? Are they not sons of the soil? Isn’t their cause worthy?

There are those who might feel that I am attacking Sikhs! Nothing could be farther from truth! I am a very proud Sikh and well aware of Sikh history!

Satvinder

Legality of Child Marriages in India

Delhi High Court recently gave its verdict in a case filed by mother of a 16 year old girl against the husband of the girl, alleging that he had kidnapped her minor daughter and the marriage between him and the girl was not valid.  The High Court reportedly (the copy of the Order is yet to come into public domain) ordered that the marriage of a 15 year old girl is valid and legal since the Muslim Personal Law (MPL) applicable to the girl permits marriage after a girl attains puberty and in the absence of any proof to the contrary, age of 15 is prima facie presumption of attainment of puberty.

The Order caused outrage from two quarters.  Firstly, it was taken up by some people who want to reduce any issue into that of a religious appeasement of minorities and vote bank politics.  Various headlines across Media also focused on the religious status of the girl and suggested a different age for marriage of Muslim girls.  This also helped in reducing the issue into that of an appeasement of Muslims- irrespective of the fact that such a provision only works against a Muslim girl and the Court Order itself was issued against a Muslim mother. 

Secondly, the Order was also criticised by well meaning and socially conscious people who were concerned about the health and social plight of child brides.  They were agitated that the High Court did not display a ‘progressive mindset’ and did not keep in mind the changing social realities while arriving at this decision and instead merely succumbed to the religious and ‘outdated’ MPL.

It pained me to read all the comments criticising the High Court and it’s supposedly ‘regressive judgement’, irrespective of which side one was speaking from.  Everyone seems to have forgotten these three factors: 

• The Order itself was not in public domain and therefore nobody had a chance to do a fair analysis of the decision.  The media reports were sensationalising one particular aspect of the case alone.
• The ‘winner’ and ‘loser’ in this litigation were both Muslims and from same family.
• Courts are here to interpret the extant law.  It is not for courts to prescribe new laws or amend existing laws. That is the job of legislature and if a law is regressive it is the legislature that deserves criticism and not courts!

Coming back to the main issue of legality of Child marriage, let us examine as to what is the real position of law in India.  Before I do that, to put things in perspective, let me explain the personal law concept that is in force.

Personal Laws and their applicability

In India while we have adopted a uniform Civil Procedure Code, applicable to all, we have refrained from adopting a uniform civil code to govern the personal and family matters of our people.  The legislature in its wisdom has adopted various personal laws (mostly based on religious edicts) as applicable for different communities and sub-sects of India, instead of prescribing a uniform code. There are different opinions on the advisability of such a system, with very strong arguments in favour and against a uniform system in a country like India with all its diversities.

I will not go into the pros and cons of a uniform civil code here.  Suffice to say, in our country, people are governed by the respective personal laws (either codified or customary), that become applicable to them by virtue of their birth and not by their beliefs or practices. 

Marriages are also governed by the respective personal laws such as Hindu Marriage Act, Muslim Personal Law Application Act , Anand Marriage Act (for Sikhs) etc.  Under these personal laws recognition is given to the customs prevalent in respective communities. 

Hindu Marriage Act has prescribed the eligible age for marriage as 21 for boys and 18 for girls.  This change was carried out only in 1978 and before that the respective ages for boys and girls were 18 and 15. Muslim Personal Law which is not codified by Indian Parliament however did not have any such amendment and the valid age for a girl’s marriage continues to be attaining puberty, with prima facie presumption of puberty at age of 15.

However, it is important to note that none of these laws make any marriage solemnised in contravention of the respective minimum age clauses void or voidable!   Even Hindu marriage Act, while prescribing 21/18 years for a valid marriage only permits the bride (and not the groom or other family members) to seek a decree of divorce on the ground that her marriage (whether consummated or not) was solemnised before she attained the age of 15 years and she has repudiated the marriage after attaining that age (of 15) but before attaining the age of 18 years.  In other words, even if the girl was a Hindu in the present Delhi High Court case, the Order would not have been any different!

Prohibition of Child Marriage Act, 2006

In order to protect the children from child marriages being forced upon them by their family and social customs, Indian Parliament had passed a new law, named Prohibition of Child Marriage Act (PCMA), in 2006, replacing the existing Child Marriage Restraint Act of 1929.  Interestingly, even this Act passed as late as in 2006 does not make child marriage a nullity. It only provides that ‘child marriages shall be voidable at the option of the contracting party who was a child at the time of the marriage.’ In other words, neither the family members nor any government authority can get such a marriage, which has already taken place, annulled.

The PCMA makes only such child marriages illegal and void where a prescribed authority had passed an injunction (including an ex parte interim injunction) before the marriage was solemnised.  Apart from this, the entire focus of PCMA has been to prevent child marriages through pre-emptive administrative actions and by criminalising acts of the person who ‘performs, conducts, directs or abets any child marriage’ and not to invalidate the child marriages per se, after it has got solemnised.

Criminal Law

Indian Penal Code (IPC) while dealing with statutory rapes, where sexual intercourse with a girl of below the age of 16 is considered as without consent and therefore rape, makes an exception for child marriages.  Section 375 of IPC provides that Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. In fact Section 376 while prescribing quantum of punishment for rape, makes a distinction between sex with wife of below the age of 12 and above the age of 12 and prescribes different punishments!

Precedents

Various judgements on the subject also conform to this legal position that child marriage per se is valid and binding on all.  To quote the words of Law Commission, ‘the pronouncements of various High Courts and the Supreme Court have approved the validity of such marriages. A recent judgment of the Delhi High Court (Manish Singh v. State Govt of NCT and Ors., 2006(1) HLR 303) reiterated that marriages solemnized in contravention of age prescribed under Section 5(iii) of the Hindu Marriage Act, 1965 are neither void nor voidable.   The court held that the judgment was based on public policy and the Legislature was conscious of the fact that if marriages, performed in contravention of the age restriction, are made void or voidable, it could lead to serious consequences and exploitation of women.’  This position got reiterated by the PCMA enacted in 2006.

The Law Commission’s Recommendations

The law Commission in its 205^th report submitted in February 2008, on ‘Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Allied Laws’ has dealt with the issue in detail and made recommendations for legislative changes.  Let me summarise the recommendations of the Commission as follows:

• That child marriage below a certain age, i.e. 16 years of age be made void. However, all the Sections relating to maintenance in Section 4 of the PCMA 2006 regarding maintenance to the female party to the marriage till her remarriage and the provisions relating to child custody and legitimacy of the children in Section 5 and 6 of the PCMA 2006 be made applicable to cases of void marriages also.
• All marriages between 16 and 18 should be made voidable at the option of either party. The sections relating to maintenance, child custody, and legitimacy in Sections 4, 5 and 6 should be applicable to voidable marriages as they are at present.
• That the exception to the rape Section 375 of the Indian Penal Code be deleted. This would ensure that the age of consent for sexual intercourse for all girls, whether married or not, is 16.
• Registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government.
• The age of marriage for both boys and girls should be 18 years as there is no scientific reason why this should be different

Conclusion

Even in the well meaning recommendations of the Law Commission, we can see certain contradictions while on the one hand it is seeking to make child marriages illegal and void while on the other hand it is trying to address the issue of maintenance of the girl and also children born out of such marriage.  No wonder, legislature has found it tough to conclusively prohibit marriages below certain age.  However, irrespective of any decision by the legislature, with regard to the above recommendations, these basic premises would remain:

• All social issues cannot be addressed through law alone. Social awareness and willingness to change as per times is a must.
• We should not reduce social issues to a religious and identity issue. That put the practitioners of those religions on the defensive, reducing any chance for much needed reforms.
• We must not demand courts to make law. If we find certain laws not up to the mark in the changed times, we must put pressure on the legislature to make the necessary amendments.  Expecting/pressurising courts to make laws can have much more serious ramifications for our very political system.

Therefore, the Order of Delhi High Court (as reported in media) seems to be very much in line with the existing laws on child marriage.  Though not relevant here, it may be noted that any other ruling would have been prejudicial to the girl herself as it would not only make her husband liable for an offence of kidnapping but also force her to abandon her marriage and return to her parents who are trying to enforce their will over her voluntary choice!