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Legal Age For Marriage In India

Okay! As the increase in legal age of girls for marriage is hot topic lets look at the history of it and also know the modifications it went through since ages.

Child Marriage:

As all of us know that marriageable age is the general age the legal age or the minimum age which is subject to social, religious and paternal approval for any of us to have a legit marry.
Child marriage is defined by UNICEF as marriage before the age of 18 and is considered a violation of human rights. Child marriage has been a problem in India for a long time, and it has been a difficult battle to eradicate due of its roots in traditional, cultural, and religious protection.

According to the 2001 census, 1.5 million females under the age of 15 are already married in India. Child marriage has a number of negative consequences, including the loss of educational opportunities and separation from family and friends, sexual exploitation, early pregnancy and health risks, increased vulnerability to domestic violence, higher infant mortality rate, low weight babies, pre-mature birth, and so on. Child marriage, according to UN women, is a forced marriage because children of such a young age are incapable of giving legally legitimate consent.

Acts Illegalizing Child Marriage In India And Increasing The Legal Age Of Marriage:

India have had a very prevalent culture of child marriage. It was made illegal in india in 1929 by the child marriage restraint 1929 (also known as Sharda Act), which came inti force on 1st April, 1930. This act fixed the marriageable age at 14 and 18 for girls and boys respectively. Soon The nation went under protests in 1937 by its Muslim nationals who were always in the favour of child marriage this made the amendment in the previous provisions and child marriage for allowed as no minimum limit was fixed. These marriages could be taken place by the consent of the child's guardian.

Lately after the independence of India in 1947, the previous act for non muslim nationalists underwent two provisions which were:
  1. Minimum legal age for marriage of girls to be increased from 24 to 15 in 1949,
  2. Minimum legal age for marriage of girls and boys to be increased from 15 and 18 to 18 and 21 respectively in 1978.

With a series of supreme court judgements and cases, the acceptability and permissibility of a child marriage legislation of Muslims 1937 has always been a contentious issue.
In India, the Prohibition of Child Marriage Act 2005 went into effect on March 1, 2005. Child marriage is defined as a marriage in which either partner is a child, and child for the purpose of marriage is defined based on the gender of the person, i.e. 18 for females and 21 for men, as specified by the Prohibition of Child Marriage Act of 2006.

Various Indian Courts Judgement On Child Marriage:

For example, the Delhi Court held that the Prohibition of Child Marriage Act, 2006, supersedes all personal laws and applies to every Indian citizen. According to the judgement, an under-age marriage in which either the man or woman is over 16 years old is not void, but voidable, and will become lawful if no action is taken by a court with the authority to decide otherwise. Given that the age of consent in India is 18, intercourse with minors under the age of 18 is a statutory crime under Section 376 of the Indian Penal Code, the marriage is void if any of the parties is under the age of 18.

Other Indian High Courts, such as the Gujarat High Court, the Karnataka High Court, and the Madras High Court, have found that the act takes precedence over any personal law (including Muslim personal law).

This Act maintained the same ages for adult males and females, but made important changes to better safeguard youngsters. Minors who are coerced into child marriages have the option of annulling their marriage up to two years after achieving adulthood, and marriages of minors can be annulled before they reach adulthood in specific circumstances. If the marriage is annulled, all assets, money, and presents must be returned, and the girl must be given a place to live until she marries or becomes an adult. Children born as a result of child marriages are regarded genuine, and courts are expected to award parental custody in the best interests of the children.

Punishments Concerning Child Marriage:

Male adult punishment: If an adult male over the age of 18 enters into a child marriage, he will be sentenced to two years of harsh imprisonment or a fine of up to one lakh rupees, or both.

Punishment for solemnising marriage: Anyone who executes, conducts, directs, or abets any child marriage is subject to a two-year sentence of hard imprisonment or a fine of up to one lakh rupees, or both.

Punishment for promoting or permitting the solemnization of marriage: Any person in charge of the child, whether parent or guardian, or any other person, including a member of an organisation or association of persons, who does anything to promote or permit child marriage, or negligently fails to prevent it from being solemnised, including attending or participating in such marriage, shall be punished with two years of rigorous imprisonment or a fine that may extend to two years or a fine which may extend.

Offence under this Act is cognizable and non bailable.

People are less likely to inform the authorities that they have broken the law because they are aware that underage marriage is banned in India. "Everyone knows there is underreporting in India � even UNICEF is aware of it," says Dhuwarakha Sriram, a child protection specialist at UNICEF India. People are less likely to tell the truth because they are aware of India's illegal marriage age, according to Sriram, which leads to underreporting.

People in Rajasthan have devised ways to circumvent the rule, according to Kriti Bharti, who leads the non-profit Saarthi. Rajasthani people hold marriage ceremonies at night with only a small group of people present, lowering the risk of a neighbour or relative calling the authorities. The teenage bride is not sent to live with her husband until she reaches puberty after the wedding. Even if the authorities are informed, the families can simply deny any wrongdoing. According to Bharti, "authorities are not always interested in some parts of India, and child marriage may be recognised as a part of the culture."

Sex With Minor Wife:

Marital Rape in Prohibited Child Marriages has long been a source of legal controversy in India. Marital rape is not a crime in India, but the issue with children is more problematic. While an exception to the criminal law (section 375 of the Indian Penal Code, 1860) for adults allows for the rape of a girl kid between the years of 15 and 18 by her spouse, the rape of a girl child between the ages of 15 and 18 by her spouse is prohibited.

In the case of Independent Thought v. Union of India in October 2017, the Supreme Court of India struck down this exception, declaring that sexual intercourse with all wives under the age of 18 is rape; another new and progressive law, the Protection of Children from Sexual Offences Act, 2012, prohibits such sexual relationships and makes such crimes with marriages an aggravated offence.

The court ruled that making a distinction between a married girl kid and an unmarried girl child was irrational and violated the Prevention of Children from Sexual Offenses Act. Under Article 21 of the Constitution, such a distinction also violated a child's right to liberty and dignity. Sex with a minor girl will now result in a minimum of ten years in prison, regardless of her marital status.

Independent Thought, a non-governmental organisation that works on behalf of children's rights, filed a public interest lawsuit, which resulted in this judgement. Can sex with a wife between the ages of 15 and 18 be exempted from the concept of rape when practically every other statute prohibits sexual contact with a minor?

Exception 2 of Section 375 of the Indian Penal Code jeopardised a slew of legislation enacted in response to India's international obligations to safeguard children's rights. This concept is also written in the Constitution, with Article 25 (3) allowing Parliament to pass laws to protect the welfare of women and children.

Exception 2 of Section 375 of the IPC, in particular, was in direct conflict with the POCSO Act, which defines a child as anybody under the age of 18 and was enacted in 2013. Aggravated sexual assault of a juvenile is a serious crime that carries a maximum sentence of ten years in jail.

The Prohibition of Child Marriage Act and the Juvenile Justice Act, both of which define a child as someone under the age of 18, were also affected by the IPC clause. In fact, the Juvenile Justice Act expressly specifies that a kid who is about to be married off must be protected.

Union Government's Justification On Why Sex With Minor Wife Is Not A Rape:

While the petitioners drew attention to these inconsistencies, the Union authorities defended the provision for sexual behaviour with a minor wife.
  1. According to the government, when a girl child marries, she is presumed to have consented to sexual contact with her husband, either expressly or by necessary inference.

    This was perhaps the strangest of the Centre's many reasons, ignoring the fact that the age of consent in Indian law is categorically set at 18. How could implicit consent be found when even explicit assent is not deemed legal if the person is under the age of 18?
  2. Second, the Centre stated that child weddings are practised as a matter of tradition throughout India, with an estimated 23 million child brides. This tradition must be honoured, or the institution of marriage may be jeopardised.

    While the petitioners pointed to these contradictions, the Union government chose to defend the exception given for sexual activity with a minor wife.
  3. Finally, the Centre stated that a Parliamentary Committee had looked into making sex with a minor wife illegal but had decided against it.

Justice Madan B Lokur, in his opinion, criticised these beliefs and questioned the institution of marriage itself. "Marriage is not institutional, but personal," the judge declared, adding that "nothing can destroy the 'institution' of marriage except a regulation that renders it illegal and punished."

A divorce may end a marriage, but does it have the ability to end marriage as a 'institution'? A legal separation may damage a marriage, but does it have the power to destroy the marriage's 'institution' or perhaps the marriage itself? Is it possible to say that no divorce should be authorised and that judicial separation should be forbidden? The solution is self-evident.

Justice Deepak Gupta made it plain in his concurring opinion that an unlawful habit cannot be excused simply because it is deemed a tradition.

The Prohibition Of Child Marriage Amendment Bill, 2021:

Courts withinside the beyond had stated the PCMA Act, 2006, turned into secular in nature and could be triumphant upon the non-public regulation. The minimal marriageable age of women has been proposed to be made religion-impartial at 21 years of age, in line with a Cabinet choice to herald a brand new regulation quickly a good way to amend the 'The Prohibition of Child Marriage Act, 2006' (PCMA).

The minimal marriageable age of women has been proposed to be made religion-impartial at 21 years of age, in line with a Cabinet choice to herald a brand-new regulation quickly a good way to amend the 'The Prohibition of Child Marriage Act, 2006' (PCMA). Top research stated that the authorities are possibly introducing The Prohibition of Child Marriage (Amendment) Bill, 2021, in Parliament on December 20 at some stage in the Winter Session.

The Prohibition of Child Marriage (Amendment) Bill, 2021, proposes to amend the PCMA so that it will make the age of marriage identical for each man and women at 21 years. At present, the criminal marriage age for men and women is 21 and 18 years, respectively.

There might be consequential amendments in legal guidelines regarding the age of marriage i.e:
  • The Indian Christian Marriage Act, 1872;
  • The Parsi Marriage and Divorce Act, 1936;
  • The Muslim Personal Law (Shariat) Application Act, 1937;
  • The Special Marriage Act, 1954;
  • The Hindu Marriage Act, 1955; and
  • The Foreign Marriage Act, 1969.
Also, the legal guidelines namely:
  • The Hindu Minority and Guardianship Act, 1956; and
  • Hindu Adoptions and Maintenance Act, 1956
Pertain to this context, a central authority supply stated at the development.

Government researches stated the change invoice could be introduced to Parliament quickly and termed it a ancient and momentous selection that has the capability of remodelling the lives of ladies and girls, and is a breakthrough withinside the course of gender equality.

Sources additionally stated the Fundamental Rights and Directive Principles of State Policy, and specially the Right to Equality and Right Against Exploitation below the Constitution of India ensures gender equality. The proposed law is a sturdy degree toward the dedication of the authorities for similar to it'll deliver ladies on identical footing with males, defined the supply.

The researches additionally introduced that as India progresses, in addition possibilities will open up for ladies to pursue better schooling and careers. There are imperatives for reducing Maternal Mortality Rate, Infant Mortality Rate and development in vitamins degrees in addition to an boom in Sex Ratio at Birth. These are the primary motives for effecting the proposed law. It will even bring about ladies reaching mental adulthood earlier than marriage, exercise higher reproductive rights and higher location in existence skills, consisting of own circle of relatives planning, use of contraceptives, etc, the supply stated.

Let's hope these efforts bear fruits and the girls from every section of our society gets equal privileges to study build their career and stand shoulder to shoulder with the boys. Also, it will protect them from social harassment and many social evils prevalent across our country.

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