Introduction
Marriage is a celebration in India, but unfortunately so is child marriage. Although we have a statute since 1929 to restrain the same, the power of that legislation in controlling this social evil is dismal.
This legislation was passed to provide for the prohibition of solemnisation of child marriages and for matters connected therewith, unlike the other one which was more concerned with restrain of the same by providing punishments.
I would explain the Act with examples of Rina(14) and Pancham(22) , (two purely fictional characters and any connection with anybody living or dead is purely coincidental) who get married and the consequences of the same along with how would law react in different situations.
This Act is not in force as of now, i.e. sometimes after a statute receives the assent of the parliament, the state needs to develop the necessary machinery to actually put the Act and its provisions into action. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different States.
To the best of my knowledge, the Act is not in force anywhere in India as of now but could be brought in fore anytime and when that happens we could circulate another mail informing members that the Act is in force.
Definitions
The Act defines a child as a person who if male is below the age of 21 years of if female is below the age of 18 years. In a marriage, when either of the party is a child, it is considered to be a child marriage. It is not necessary that both the parties have to be children for the marriage to be a child marriage. It is sufficient for one of the parties to be a child, for the marriage to be a child marriage.
Voidability Of Marriage At The Option Of Child
Unlike the earlier legislation, wherein there was no provision for the voidability of the marriage, the new legislation makes the child marriage voidable[2] at the option of contracting party who was a child at the time of marriage i.e. the child who has been married off has the option to go to the court of appropriate jurisdiction (district court or family court, as the case may be) and get his/her marriage declared cancelled. Further, there were only punishments prescribed for individuals getting into child marriage i.e. for the male adult, for the guardians who solemnized the marriage and for individuals who conduct or perform the marriage in any manner.
However, the punishment was a meager simple imprisonment upto three months and fine.
To explain better, Rina who is 14 is married off to Pancham of 22.
As per the earlier legislation, Pancham would be punishable with a simple imprisonment upto three months, and their marriage could not be cancelled.
However, under the new Act, Rina can get the marriage cancelled if she so desires. If she does not exercise this option then the marriage remains valid. At the same time, the boy cannot get his marriage cancelled and he has to fulfill all the marital obligations of a husband like sustaining the wife, maintenance etc.
This option can be exercised by the child who has been married off and not by anybody else. If the child is still a minor at the time of filing the petition, the guardian can file the petition along with the Child Marriage Prohibition officer for him.
Further, a limitation period of two years from the date of attaining majority has been imposed. To carry forward the example, Rina has to file the petition before she turns 20 i.e. within two years of attaining the age of 18.
While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money. Further, no order for nullity shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.
Maintenance and Residence for the Female Child
Section 4 of the Act makes a provision for maintenance and residence to female contracting party to child marriage. If the child marriage is cancelled or nullified as under S. 3, then the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage.
To make it simpler, Pancham and in case he would have been below 18 years, his parents would have to pay maintenance to Rina until her marriage. The quantum of maintenance payable shall be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party. The amount of maintenance may be directed to be paid monthly or in lump sum.
Looking at the social conditions in India, it can be imagined that it would be difficult for the girl to find a good residential place for herself. Therefore, S. 4 along with making provision for maintenance also gives the power to court to make a suitable order as to her residence.
Children of Child Marriage-Their Custody, Legitimacy and Maintenance
It is not unknown that the methods of contraceptives and birth control are not very popular amongst the rural society, especially after marriage. Thus, young brides give birth to babies almost immediately after marriage. Section 5 also makes provision for custody and maintenance of children of child marriages. It gives the discretion to make a suitable order for the custody of such children. Undoubtedly, while making an order for the custody of a child under this section, the welfare and best interests of the child shall be the paramount consideration to be given by the district court.
An order for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of the child, and such other orders as the district court may, in the interest of the child, deem proper. The district court may also make an appropriate order for providing maintenance to the child by a party to the marriage or their parents or guardians.
To dive further into the problems and consequences of child marriage, another issue that could arise, would be the legitimacy of the children born under a child marriage where such marriage has been declared to be null.
Suppose, Rina gave birth to Pinky immediately after a year of her marriage, and then got her marriage declared cancelled, she would be entitled to maintenance from Pancham. But what about Pinky? Whose child would she be as the marriage of her parents is now nullified?
This question is answered by Section 6 of this Act. It declares that every child begotten or conceived of such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes.
Appropriate Court
The appropriate forum is the district court where the defendant or child resides, or where the marriage was solemnized or where the parties last resided or where the petitioner is residing on the date of presentation of petition. It is worth mentioning that this is in deference of the normal procedural rule that the case is to be filed either where the defendant resides or where the cause of action arises, but not where the petitioner resides.
Punishments
The punishments for a male adult marrying a child shall be rigorous imprisonment upto two years or fine upto one lakh rupees or both.
The punishment for solemnising a child marriage in the form of performing the child marriage or abetting in any form shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
Further we should not forget that the guardians or the parents (under whose control the child was) play a major role in this episode of child marriage. The law makes provision for the punishment of any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage. The quantum of punishment has been laid down as rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees. The Act makes an exception in case of women and provides that no woman shall be punishable with imprisonment.
Further, the action also makes a presumption against the accused (which is again a deference from the normal law that the accused is always presumed innocent till proven guilty). It is presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.
Marriages to be void in certain cases
Section 12 further lays down the few cases in which the marriage of a minor child is to be void, i.e. where the child,
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
such marriage shall be null and void.
Power of Court to Issue Injunction to Stop Conducting Of Child Marriage – Our Role and Responsibility
The Act also envisions situations wherein conducting of the child marriages should be stopped. For, prevention is always better than cure; a child shall be saved from facing a lot of trauma if her marriage is stopped instead of going through the process of canceling the marriage, when the damage may already be done. Section 13 gives the power to court to issue injunction prohibiting child marriages.
If, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage.
This should be kept in mind, for even if we as common citizens come across any solemnization of child marriage, we can contact the CMPO and ask him to take aid of this law and take further action.
(Once the Act comes into force, Karmayog could collect the relevant contact details on the website so that individuals can take prompt action and help in identifying this offence.)
A complaint regarding a possible child marriage may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.
It is also provided that the Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suo motu cognizance on the basis of any reliable report or information.
The mass marriages conducted on the day of akshay trutiya are not unknown. For the purposes of preventing solemnisation of mass child marriages on certain days such as Akshaya Trutiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act. The District Magistrate shall also have additional powers to stop or prevent solemnisation of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.
Further caution is also provided under the last sub-section wherein it is provided that no injunction under sub-section (1) shall be issued against any person or member of any organisation or association of persons unless the Court has previously given notice to such person, members of the organisation or association of persons, as the case may be, and has offered him or them an opportunity to show cause against the issue of the injunction, but at the same time it is provided that in the case of any urgency, the Court shall have the power to issue an interim injunction without giving any notice under this section.
An injunction issued under sub-section (1) may be confirmed or vacated after giving notice and hearing the party against whom the injunction was issued.
The Court may either on its own motion or on the application of any person aggrieved, rescind or alter an injunction issued under sub-section (1).
Where an application is received under sub-section (1), the Court shall afford the applicant an early opportunity of appearing before it either in person or by an advocate and if the Court, after hearing the applicant rejects the application wholly or in part, it shall record in writing its reasons for so doing.
The section concludes with the hefty punishment of a fine of upto one lakh or imprisonment pto two years on any body who knowing that an injunction has been issued under sub-section (1) against him disobeys such injunction; however it is provided that no woman shall be punishable with imprisonment.
Any child marriage solemnised in contravention of an injunction order issued under section 13, whether interim or final, shall be void ab initio.
To continue with the example, had anybody complained of marriage of Pancham and Rina to the authorities and the authority had promptly conducted the enquiries and issued an appropriate injunction, the marriage would have to be stopped. If the people conducting the marriage were so reckless, as to go against the orders and perform the marriage, it could have been void ab intio i.e. cancelled from the very beginning.
(It should be remembered that this is different from the other case under Section 3 wherein the marriage is voidable i..e. valid till declared null by the Court. In that scenario, Rina would have to go to the court wherein the marriage is valid till it is declared null by the Court.)
Offences to be cognizable and non-bailable.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable.
Child Marriage Prohibition Officers
This statute also introduced the concept of special Child Marriage Prohibition Officers.
With the coming into force of the Act, the State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification. The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.
The duties of the CMPO are:
(a) to prevent solemnisation of child marriages by taking such action as he may deem fit;
(b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act;
(c) to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages;
(d) to create awareness of the evil which results from child marriages;
(e) to sensitize the community on the issue of child marriages;
(f) to furnish such periodical returns and statistics as the State Government may direct; and
(g) to discharge such other functions and duties as may be assigned to him by the State Government.
The State Government may invest the Child Marriage Prohibition Officer with such powers of a police officer as may be needed and issue a notification in such respect. The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3.
The Child Marriage Prohibition Officers shall be deemed to be public servants.
Repeal
This Act, when it comes into force shall repeal the Child Marriage Restraint Act, 1929. Notwithstanding such repeal, all cases and other proceedings pending or continued under the said Act at the commencement of this Act shall be continued and disposed of in accordance with the provisions of the repealed Act, as if this Act had not been passed.
Criticism and Thoughts
The Act is facing a lot of criticism on three accounts:
- instead of declaring a child marriage void in all circumstances, it lays the onus of declaring such a marriage void on the child or the guardians who would have to go through the Court proceedings for the same.
- There is no provision for punishing the officials in whose areas these marriages are solemnised.
- it does not make the registration of marriage compulsory.
While I don’t disagree with the criticism completely, I think it is a matter of shame that we have to look at laws on paper to ensure that our children are protected rather than looking at love and wisdom in ourselves which should naturally restrain us from pushing a child into this social evil.
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