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mind the changing social realities while arriving at this decision and instead merely succumbed to the religious and ‘outdated’ MPL.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.
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!
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 205th 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
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!