History of Child Marriage Laws in India: Story till Now

I. Introduction

Child marriage is a social phenomenon that has been practised for centuries in India and is still prevalent, especially in rural and poorer sections of the Country. Child marriage has deep roots in Indian society, driven by poverty, patriarchal society, culture, traditions and many other factors. Some people even argue that this practice is a part of their religious traditions. Regardless of what it is, a part of what it actually results is in the exploitation of children. When children are married off before gaining physical and mental maturity, it leads to both physical and psychological injury.

Child marriage leads to domestic violence and premature sexual encounters, which results in early childbearing, which increases the risk of malnutrition, infant death and maternal death. According to a UNICEF report, younger brides between the age of 15-19 years are twice as likely to die of complications arising due to pregnancy as compared to the brides who are in their early 20s.²

In India, Legislators with the aim to eradicate child marriage from society has made attempts by making various laws and policies. Over the past few decades, these laws have seen many developments in them, which we will be discussing in the later part. These laws have made a significant impact on child marriage; over the last decade, the percentage of women who were married before attaining 18 years of age has reduced from 47 per cent to 27 per cent.³ The decline in child marriage is sharp in India, but still, there is a long road ahead. India is home to 223 million child brides, which brings about one-third of the total number of child brides in the world and makes India home to the largest number of child brides in the world.⁴

II. Laws against child marriage

In India, the first attempt to prevent child marriage was taken in 1929 through the Child Marriage Restraint Act, 1929, which was amended in 1949 and 1978 and later repealed by the Prohibition of Child Marriage Act, 2006.

1) The Child Marriage Restraint Act, 1929-

The Child Marriage Restraint Act 1929 was the first attempt to restrict child marriages in India. It was a result of social reform movement organized by women associations such as the All India Women’s Conference and the National Council of Women in India. It is also known as Sharda Act, 1929, named after Rao Sahib Haribilas Sharda, who introduced the child marriage restraint bill in the Assembly.⁵ The Act was approved in the Imperial Legislative Council of India under the viceroyalty of Lord Irwin on September 28, 1929, and came into effect on April 1, 1930; it covered the whole of India, except princely states like Hyderabad and Jammu and Kashmir.⁶ The Act was opposed by nationalist leaders such as Bal Gangadhar Tilak and Madan Mohan Malaviya. They believe that the Act was an attack on Hindu Culture and Traditions.

Initially, the Act forbade the marriage for boys under 18 years of age and for girls under 14 years age and prescribed the punishment of a ‘fine which may extend to one thousand rupees’ to male adults below 21 years age marrying a child and the punishment of ‘simple imprisonment which may extend to one month or with the fine which may extend to one thousand rupees or with both to male adult above 21 years age marrying a child, to parent or guardian concerned in child marriage and to a person who solemnizes child marriage unless he proves he had reason to believe that the marriage was not a child marriage.

After the Child Marriage Restraint (Amendment) Act, 1949, the minimum age of marriage for girls was raised to 15 years⁷ and the punishments was increased to ‘simple imprisonment which may extend to fifteen days or with a fine which may extend to one thousand rupees, or both’ for male adult below 21 years age marrying a child⁸ and for male adult above 21 years age marrying a child, for parent or guardian concerned in child marriage and for a person who solemnizes child marriage punishment was increased to simple imprisonment which may extend to three months and a fine.⁹

In 1978, the minimum age of marriage was further raised to 21 years for boys and 18 years for girls by the Child Marriage Restraint (Amendment) Act 1978; it also made consequential amendments in the Hindu Marriage Act, 1955 and the Indian Christian Marriage Act, 1872.

During British rule, the Sarda Act remained dead letters. There was no proper implementation of the law by the British authorities, as they feared that they would lose support from the Muslim communalist groups, who opposed British interventions in their religious customs.¹⁰ After the Independence, there was some improvement in the implementation of the Act but still no significant impact on the number of child marriages. The Act had a big loophole, the Act aims to curb the practice of child marriage by punishing people, but the Act didn’t make the child marriage void itself.

2) Prohibition of Child Marriage Act, 2006-

Due to the ineffectiveness of the Child Marriage Restraint Act, 1929, it was replaced by the Prohibition Child marriage Act, 2006. The change in the name of the Act from ‘restraint’ to ‘prohibition’ reflects the stronger intention of the government to end the practice of child marriage. The minimum age of marriage for girls and boys remained the same, maintaining some parallels with the previous law, i.e., 21 years for boys and 18 years for girls. The Act also made some significant departures from previous Act like enhancement in punishment, making the punishment rigorous imprisonment which may extend to two years and/or with fine which may extend to one lakh rupees and making it more serious by making the offences cognizable and non-bailable.

The Act allowed the contracting party who was a child at the time of the marriage to invalidate the marriage, making child marriage voidable, but the petition to declare the marriage null and void must be filed within two years of the child attaining majority.¹¹ “The Act also makes the marriage void if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void.”¹²

The provisions incorporated in the Act also gives legitimacy to children born out of child marriage, including those born in a void or voidable marriages¹³ and maintenance and residence to girl child until her remarriage for which husband will be liable to pay but if he is minor, then his parents will be liable to pay the maintenance.¹⁴

3) The Prohibition of Child Marriage (Amendment) Bill, 2021-

After the introduction of the Prohibition of Child Marriage Act, 2006, India has witnessed a drastic improvement in the progress of ending child marriage. Despite such improvement, this evil practice still manages to exist in society.

The justness of the Act of 2006 was put in question when the Prohibition of Child Marriage (Amendment) Bill 2021 was introduced in Lok Sabha on December 21, 2021. The object behind the introduction of the Bill was argued that the existing laws are in contravention of the fundamental right of the prohibition of discrimination on the grounds of Sex. The existing laws are discriminatory against women as by fixing the minimum age of marriage for girls 18 years and for boys 21 years, the law puts girls at a position which is disadvantageous for their higher studies and careers, leading them to drop out of schools and colleges. The Bill also aims to lower maternal mortality rate and infant mortality rate and promote responsible parenthood for both mother and father.

The Bill seeks to raise the minimum age of marriage for girls to 21 years from 18 years,¹⁵ making uniform age of marriage for both men and women and make consequential changes in the Indian Christian Marriage Act, the Parsi Marriage and Divorce Act, the Muslim Personal Law (Shariat) Application Act, the Special Marriage Act, the Hindu Marriage Act, and the Foreign Marriage Act.¹⁶ The Bill also seeks to override all existing laws, including any customs, usage or practice governing the parties in relation to child marriage.¹⁷

III. Conclusion

Child marriage is like an obstacle in the path of the development of the Country. In order to put an end to such practice, several laws have been formed, which have been amended over time, but despite having progressive laws, child marriage is still prevalent in some parts of society. After 92 years since the first enactment of a law that intends to end child marriage, it is perfectly clear that merely the good quality of law is not sufficient to end the ancient practice of child marriage, implementation and support from the government and society is as important as law.

Over the years, people have gathered the courage to resist and stop such practices. The story behind the landmark judgment of the Vishaka vs State of Rajasthan¹⁸ case where a social worker in Rajasthan was gang-raped by upper caste men in vengeance because she tried to stop child marriages has inspired NGOs and women’s groups countrywide to fight for the cause.¹⁹ The fight is not over yet, but with the proper implementation of laws and support of the government and society, we will be able to free ourselves from this age-old curse. Soon the practice of child marriage will come to an end, and children will be free from this evil practice.

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Footnotes

1. Author is a student at National Law University, Jodhpur, India.

2. CHILD MARRIAGE IN SOUTHERN ASIA, https://www.icrw.org/wp-content/uploads/2016/10/CHILDM ARRIAGE-F-13.pdf (last visited Dec. 22, 2021). ↩

3. Ending Child Marriage: A profile of progress in India (February 2019), https://data.unicef.org/resources/ending-child-marriage-a-profile-of-progress-in-india/ (last visited Jan. 4, 2022). ↩

4. Ibid. ↩

5. Sarda Har Bilas, Speeches and Writings Har Bilas Sarda 33-68, Chand Mal Chandak, https://archive.org/details/speechesandwriti030754mbp/page/n17/mode/2up. ↩

6. Anushka, Sharda Act: Abolition Of Child Marriage, GETLEGAL INDIA (Oct. 11, 2021), https://getlegalindia.com/sharda-act/#HISTORY_OF_SHARDA_ACT. ↩

7. Sec. 2, The Child Marriage Restraint (Amendment) Act, 1949. ↩

8. Sec. 3, The Child Marriage Restraint (Amendment) Act, 1949. ↩

9. Sec. 4, The Child Marriage Restraint (Amendment) Act, 1949. ↩

10. Geraldine H. Forbes, Women in Modern India 89, (Cambridge University Press 1996). ↩

11. Sec. 3, The Prohibition of Child Marriage Act, 2006. ↩

12. Rajnandini Mahajan, Laws On Child Marriage In India, Blog iPleaders (Jan. 21, 2016), https://blog.ip leaders.in/laws-child-marriage-india/. ↩

13. Sec. 6, The Prohibition of Child Marriage Act, 2006. ↩

14. Sec. 4, The Prohibition of Child Marriage Act, 2006. ↩

15. Sec. 3, The Prohibition of Child Marriage (Amendment) Bill, 2021. ↩

16. Modi govt introduces bill to increase women’s marriage age to 21 years in Lok Sabha, The Print (Dec. 21, 2021, 06:44 PM), https://theprint.in/india/modi-govt-introduces-bill-to-increase-womens-marriage-age-to-21-years-in-lok-sabha/785232/. ↩

17. Bill to increase marriageable age of women to 21 years introduced in Lok Sabha, Economic Times India Times (Dec. 21, 2021, 07:28 PM), https://economictimes.indiatimes.com/news/politics-and-nation/bill-to-increase-marriageable-age-of-women-to-21-years-introduced-in-lok-sabha/articleshow/88413213.cms. ↩

18. Vishaka vs State of Rajasthan, (1997) 6 SCC 241. ↩

19. India Together, https://indiatogether.org/combatla w/vol3/issue5/visakha.htm (last visited Jan. 2, 2022). ↩