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.
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
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:
- Minimum legal age for marriage of girls to be increased from 24 to 15 in
- 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
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
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.
- 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
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?
- 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.
- 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
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'
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:
Also, the legal guidelines namely:
- 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.
- 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
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
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.