Child marriage Restrain Act and Hindu marriage Act

1. Laws on Child Marriage
Child marriage is an age-old practice that has both social and religious sanction and cuts
across all sections of society. Recognising child marriage as a social evil, the Child Marriage
Restraint Act (CMRA) 1929, popularly known as the Sharda Act, prohibited child marriages
of girls below the age of 15 years and of boys below the age 18. This law applied to all
citizens of India. In 1978, the law was amended to make it more effective and raised the
minimum age of marriage by three years i.e. from 15 to 18 years in case of girls and from 18
to 21 years in case of boys. The amended law came to be known as the Child Marriage
Restraint Act, 1929. However, despite the law, child marriages continued to take place. There
are many marriages in which both the girl and the boy are children. In others the girls are
children/minors who are married off to much older men, or sometimes even sold into
marriage.
In yet another attempt to deal with the problem, the government passed “The Prohibition
of Child Marriage Act, 2006.”
Causes behind Child Marriage
 The marriage of a minor girl often takes place because of the poverty and
indebtedness of her family.
 Dowry becomes an additional reason, which weighs even more heavily on poorer
families. The general demand for younger brides also creates an incentive for these
families to marry the girl child as early as possible to avoid high dowry payments for
older girls.
 The girl in our patriarchal set up is believed to be parki thepan (somebody’s property)
and a burden. These beliefs lead parents to marry the girl child. In doing so, they are
of course relieving themselves of the ‘burden’ of looking after the child. The girls are
considered to be a liability as they are not seen as individuals who can contribute
productively to the family. Unfortunately, the patriarchal mind-set is so strong that the
girl has no say in decision making. Texts like Manu Smirti which state that the father
or the brother, who has not married his daughter or the sister who has attained puberty
will go to hell are sometimes quoted to justify child marriage. Child marriages are
also an easy way out for parents who want their daughters to obey and accept their
choice of a husband for them.
 There is also a belief that child marriage is a protection for the girls against unwanted
masculine attention or promiscuity. In a society which puts a high premium on the
patriarchal values of virginity and chastity of girls, girls are married off as soon as
possible.

2.  Furthermore securing the girl economically and socially for the future has beenput
forth as a reason for early marriage.
 The institution of marriage in communities or societies can be used to serve or
strengthen economic and social ties between different families and even
communities. Also a young girl may be offered to a family in order to improve the
financial and social standing of the girl’s family.
 Other reasons that have been listed for the high prevalence of child marriages in India
are lack of education and knowledge, shortcomings in the law, and the lack of will
and action on part of the administration.
Repercussions of Child Marriage
 Child marriage is a grave violation of the rights of the child depriving her of
opportunities and facilities to develop in a healthy manner to obtain education andto
lead a life of freedom and dignity. It deprives the young girl of capabilities,
opportunities and decision-making powers and stands in the way of her social and
personal development.
 Young brides face the risk of sexual and reproductive ill health because of their
exposure to early sexual activity and pregnancy. Young mothers under age 15 are five
times more likely to die than women in their twenties due to complications including
haemorrhage, sepsis, preeclampsia/ eclampsia and obstructed labour.1
 Young girls face the risk of infection with sexually transmitted diseases including
HIV. An analysis of the HIV epidemic shows that “the prevalence of HIV infectionis
highest in women aged 15–24 and peaks in men between five to ten years later.”2
 A study has shown that India has the highest rate of “domestic violence among
women married by 18 with a rate of 67 per cent, compared to 45 per cent ofwomen
who had not experienced violence.”3
 As husbands are often much older than their brides, girl brides are likely tobe
widowed at an early age.
 Their Right to education which has been recognised one of our fundamental right
under Article 21 of Indian Constitution4
is being violated particularly of younggirls.
 The loss of adolescence, the forced sexual relations, and the denial of freedom and
personal development attendant on early marriage have profound psychosocial and
emotional consequences.
1
Mensch, Barbara S., Judith Bruce and Margaret S. Greene, The Uncharted Passage: Girls’ Adolescence in the
Developing World, The Population Council (1998), New York.
2
Barua, A., Heman Apte, Pradeep Kumar, Care and Support of Unmarried Adolescent Girls in Rajasthan,
Economic and Political Weekly, Vol XLII No44 November 3-9, 2007, p.54
3
U.N Children’s Fund (UNICEF). Early Marriage: A Harmful Traditional Practice, UNICEF: Florence (2005), p.22
4
Unni Krishnan v. State of Andhra Pradesh, 1993AIR2178

3. Prohibition of Child Marriage Act, 2006
Whom does it apply to?
 It applies to all citizens of India irrespective of religion, without and beyond India
 It however, does not apply to the State of Jammu and Kashmir.
 It excludes the Renoncants of the Union Territory of Pondicherry from its
application. For them the French Civil Laws are applicable as they are treated as
citizens of France.
What Does this Law Provide for?
The basic premise of the law is:
• To make a child go through a marriage is an offence.5
• Child or minor is a person up to 18 years in the case of girls and 21 years in the case of
boys.6
The provisions of this law can be classified into three broad categories:
A. Prevention
B. Protection
C. Prosecution of Offenders
A. Prevention
The law seeks to prevent child marriages by making certain actions punishable and by
appointing certain authorities responsible for the prevention and prohibition of child
marriages. These persons are responsible for ensuring that the law is implemented. It is also
the responsibility of the community to make use of the law. More specifically, under the law:
1. The solemnization of child marriages is a cognisable and non-bailable offence.7
2. Child Marriage Prohibition Officers (CMPOs) are to be appointed in every state to prevent
child marriages, ensure protection of the victims as well as prosecution of the offenders.8
3. The Courts have the power to issue injunction for prohibiting child marriages from taking
place.9
4. Child marriages will be declared null and void if the injunction prohibiting a child
marriage from taking place is violated/ contravened or, if the child is taken away fromtheir
5
Sections 10, 11 and 15 of the Prohibition of Child Marriage Act, 2006 (PCMA, 2006)
6
Section 2 (a), PCMA 2006
7
Section 15, PCMA 2006
8
Section 16, PCMA 2006
9
Section 13, PCMA 2006

4. lawful guardian by enticement, force or use of deceitful means or, is sold or trafficked for the
purpose of marriage.10
5. The law lays down penal provisions for those who solemnise child marriages.11
6. The CMPO and District Collector are responsible for sensitisation and awarenesscreation
in the community.12
B. Protection
1. The law makes child marriages voidable by giving choice to the children in the marriage to
seek annulment of marriage.13
2. It provides for maintenance and residence of the female contracting party.14
3. It gives a legal status to all children born from child marriages and makes provisions for
their custody and maintenance.15
4. The law provides for all support and aid including medical aid, legal aid, counselling and
rehabilitation support to children once they are rescued.16
5. The Child Marriage Prohibition Officer has been empowered:
• to provide necessary aid to victims of child marriage17
• to provide legal aid18
• to produce children in need of care and protection before the Child Welfare Committee or a
First Class Judicial Magistrate, where there is no Child Welfare Committee.19
C. Prosecution of Offenders
1. The law provides for punishment for an adult male above 18 years of age marrying a
child.20
2. It also lays down punishment for those performing/conducting/ abetting a child marriage.21
10
Section 12 and 14, PCMA 2006
11
Section 10, PCMA 2006
12
Section 13(4) and 16(3)(d), PCMA 2006
13
Section 3(2) and 3(3), PCMA 2006
14
Section 2 (a), PCMA 2006
15
Section 3(2) and 3(3), PCMA 2006
16
Section 4, PCMA 2006
17
Section 5 and 6, PCMA 2006
18
Section 16(3)(g), PCMA 2006
19
Section 16(3)(g), PCMA 2006
20
Section 16(3)(g), PCMA 2006
21
Section 32 of Juvenile Justice (Care and Protection of Children) Act 2000, as amended in 2006

5. 3. It prescribes punishment for promoting or permitting solemnisation of child marriage,
including for parents, guardians or any other person/association/organisation.22
4. The law clearly states that women offenders in any of the above categories cannot be
punished with imprisonment. However, they can be penalised by way of imposition ofa
fine.23
5. Mechanisms under the law
The authorities identified for prohibiting child marriage under the present law are:
1. Child Marriage Prohibition Officer
2. District Magistrate
3. First Class Judicial Magistrate or Metropolitan Magistrate
4. Police
5. Family Courts
6. Any person(s) called upon by the State Government to assist the Child Marriage
Prohibition Officer. These could include - a respectable member of the locality with a record
of social service, officer of the Gram Panchayat or Municipality, officer of the government or
public sector undertaking, office bearer of any non-governmentalorganisation.
6. Reporting Child Marriages
Any person can report an incidence of child marriage before or after it has been solemnised.
An immediate report needs to be made to:
• The Police
• The Child Marriage Prohibition Officer or such persons as may be appointed to assist
him/her
• First Class Judicial Magistrate or Metropolitan Magistrate
• Child Welfare Committee or a member of the Child Welfare Committee set up under the
Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006
• Child Line
• District Magistrate
A First Class Judicial Magistrate is empowered to take suo moto cognisance of any reliable
report of information of child marriage. The Child Marriage Prohibition Officers are also
responsible for reporting and preventing child marriages. In case of mass marriages the
22
Section 9, PCMA 2006
23
Section 10, PCMA 2006

6. District Magistrate is also deemed to have the powers of a Child Marriage Prohibition Officer
and therefore has the powers to stop or prevent solemnisation of child marriages.
7. Complaint
A complaint can be filed by any person, including those who report an incidence of child
marriage. Such persons may include:
1. A person who has reason to believe that a child marriage is likely to take place.
2. A person who has personal information.
3. School teachers, doctors, ANMs, anganwadi workers, village level workers, SHG
members, village elders, neighbours etc.
4. A parent or guardian of the child.
5. The Child Marriage Prohibition Officer or persons appointed to assist her/him.
6. A non-governmental organization having reasonable information. It is critical that
concerted efforts are made towards creating awareness that motivates and empowers all
community members to assume a pro-active role in curbing child marriages without fear. It is
also important to ensure protection for the complainants to avoid repercussions that could
defeat the purpose of social justice.
8. Where to File a Complaint?
Since arranging or solemnizing a child marriage is a cognisable offence, a complaint has to be
made in the nearest police station. The police must make a DD entry (an entry in the Daily
Diary Register maintained at every police station) and register an FIR (First Information
Report) based on such complaint. A complaint can also be filed with a Judicial Magistrate of
First Class or a Metropolitan Magistrate. Complaints can be either oral or written, in the form
of a phone call, a letter or a telegram, e-mail, fax or a simple handwritten note duly signed by
the complainant.

7. Hindu Marriage Act, 1955 & Prohibition of Child Marriage
Restraint Act, 2006
 Age for Valid Marriage
Under both the acts, age for marriage is 18 for female and 21 for male.
 Marriage- Void or Voidable
According to Hindu Marriage Act, if a marriage is not a valid marriage where the age of
female is less than 18 year and/or the age of male is less than 21 year.24
Hindu Marriage Act
was not clear whether Child marriage is void or voidable.
However, Prohibition of Child Marriage Restraint Act has specifically said that such
marriage is voidable at the option of party whose marriage has been solemnized inconsistent
to the age requirement.25
In some cases, child marriage is void ab initio26
.
 Procedure for obtaining decree of nullity
Under Hindu Marriage Act, child marriage is given as a ground for divorce for female under
section 13 that her marriage was solemnized before she attained the age of 15 provided that
she has repudiated the age after attaining that age but before18 years.27
Prohibition of Child Marriage Act has relaxed this requirement. Both male and female can
file petition anytime but before completing two years of attaining majority.28
 Punishment for child marriage
Under Hindu Marriage Act, punishment for procuring child marriage was simple
imprisonment which may extent to 15 days or with fine which may extent to one thousand
rupees or both. However after the enactment of Prohibition of Child Marriage Prohibition
Act, an amendment was introduced under Hindu marriage Act and now the punishment is
rigorous imprisonment which may extent to two years or with fine which may extend to one
lakh rupees or with fine.29
Child Marriage Prohibition Act punishes all those persons who performs, conducts, and abets
child marriage.30
It also punishes the male adult marrying a child.31
24
Section 5(3) of Hindu Marriage Act,1955
25
Section 3(1) of Prohibition of Child Marriage Act, 2006
26
Section 12 of Prohibition of Child Marriage Act, 2006
27
Section 13(2)(4) of Hindu Marriage Act,1955
28
Section 3(3) of Prohibition of Child Marriage Act, 2006
29
Section 18 of Hindu Marriage Act, 1955 (Subs by Act 6 of 2007)
30
Section 10 of Prohibition of Child Marriage Act, 2006
31
Section 9 of Prohibition of Child Marriage Act, 2006

8.  Legitimacy of Children born out of child marriage having been declared as void
Both acts consider children both out of such marriage as legitimate.32
Recommendations given under 205th
Report of Law Commission of India
1. The age of marriage for both boys and girls should be 18 years as there is no
scientific reason why this should be different. Consequently the present Section
2(a) of the PCMA should be deleted and replaced by the following Section 2(a):-
“(a) ‘child’ means a person who has not completed 18 years of age.”
2. 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 PCMA2006
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.
3. All marriages between 16 and 18 should be made voidable at the option ofeither
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. Consequently Section 3(1) and 3(3) of the PCMA 2006 should be
amended to incorporate the changes outlined in paras (i) and (ii) above and will
read as under:-
“3(1) (i) Any marriage of a child below 16 years of age solemnized after the
commencement of this Act will be null and void and may, on a petition be presented by
either party thereto against the other party be so declared by a decree of nullity. (ii) Every
marriage of a child between the ages of 16 and 18, whether solemnized before or after the
commencement of this Act, shall be voidable at the option of the contracting party who
was a child at the time of the marriage.” Section 3(3) should be amended to read as under:
“(3) The petition under Section 3(1)(ii) may be filed at any time till the person contracting
a child marriage attains 20 years of age.”
4. 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. The 172 nd Report of the Law Commission had
recommended increasing the age of consent for all girls to 16.
5. Registration of marriages within a stipulated period, ofall the communities, viz.
Hindu, Muslim, Christians, etc. should be made mandatory by the Government.
6. Other acts like the Hindu Marriage Act should also be amended to ensure that the
provisions in the said acts are the same as and do not contradict the Prohibition of
Child Marriage Act, 2006.
32
Section 16 of Child marriage Act,1955 and Section 6 of Prohibition of Child Marriage Act, 2006