HISTORY RESEARCH WORK ON CHILD MARRIAGES IN INADIA

SUBMITTED TO- DR. NAZIMA MUNSHI

SUBMITTED BY: SANKALP SRIVASTAVA

ROLLNO.-B024

FYBALLB [DIV B] SEM. 2

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HISTORY OF CHILD MARRIAGE IN INDIA

In the earliest known history of India from 200 BC to 700 AD, young women and men rejoiced a
liberal concept of love and they had the freedom to choose a partner and enter into romantic
relationships with each other without any fear of scandal. However, from Middle Age, as states
and government developed, the political system elaborated and modified the Indian society
gradually. It transformed the lifestyle and opinion of its people from a simple to more complex
form, restricting significantly the notion of liberty. Women lost their rights and had to obey rules
and respect the code be behaviour. They were now subject to family discipline and the honour of
their clan. Since young women were considered irresponsible and irrational in love, parents
married them early before they got caught into any scandal. Though, age at which the girl was to
be married differed and it was rare for girls younger than 12 to be married in antiquity.
Nevertheless, girl brides became younger towards the Medieval period, and it became
increasingly common for girls as young as six or eight to be married as Indian society. The prime
concern of negotiating the marriage was to find out the compatibility between the two families. It
was believed during those times that if two persons know each other right from childhood it
enhanced understanding and affection. Hence, parents decided on the marriages of their children
at a very early age although the daughter stayed with her parents until she attained the age of
puberty

Indian society is historically based on a patriarchy, and this gender inequality still exists. A
woman’s primary role in society is supposed to be her relation to men (daughter, wife, mother,
etc.) Their primary aspiration in life is designated as marriage. As a result of these sexist
expectations, young girls entering a marriage are expected to put their husband’s and father’s
wishes before her own desires and discomfort. Girls are rarely given the voice or opportunity to
protest an arranged marriage. As in all patriarchies, a man’s worth revolves around his
masculinity, which involves his ability to control women, particularly his wife and daughters.
Until marriage, a daughter’s chastity and protection is a determinant of her father’s honor and
masculinity. Failing to have a “pure” daughter shames her father and can even result in exclusion

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from community. This can motivate men to marry their daughter’s off early in order to transfer
this responsibility to their new son-in-law and his family.

COMPARATIVE STUDY WITH – SOUTH AFRICA

INTRODUCTION

The global campaign, led by the consortium Girls Not Brides and the African Union Campaign
to End Child Marriage, has put child marriage in Africa in the spotlight. Girls Not Brides
estimates that 15 of the 20 countries with the highest rates of child marriages in the world come
from Africa. In sub-Saharan Africa it is estimated that 39 per cent of girls are married before
their 18th birthday; while 13 percent are married by their 15th birthday. Child brides are most
likely to be found in rural areas, among the poorest and most illiterate segments of the
population. Among other factors, child marriage in Africa has been linked to harmful practices
(to be discussed later) that are embedded in culture. This is compounded by the fact that in many
African communities drifting from tradition could mean exclusion from the community. Law
reform to end child marriage, therefore, is a difficult task since it presents a potential conflict
between children's rights and cultural rights. According to the United Nations Children's Fund
(UNICEF), the fastest progress in reducing child marriage in Africa has been in the northern
region, with Southern Africa lagging behind. Yet, all Southern African countries are state parties
to the major international and regional instruments that condemn child marriage.

Against this background, a number of Southern African countries have recently developed
national initiatives aimed at ending child marriages. For example, in 2015 the Constitutional
Court in Zimbabwe outlawed child marriages concluded under any law. In the same year, South
Africa, through the South African Law Reform Commission, proposed criminalising both forced
and child marriages as a result of, among others, harmful cultural practices. Much more
recently, in 2017, Malawi amended its constitutional provision and unequivocally set the
marriageable age of both women and men at 18 years.

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In view of these initiatives this article examines how the selected country South Africa seeks to
address the conflict between cultural practices that lead to child marriage and the protection of
children's rights. It also highlights both the theoretical and the practical problems that law
reformers face in regulating cultural practices, as well as the gaps in the reforms that need to be
addressed.

CURRENT SCENARIO OF CHILD MARRIAGE IN INDIA

UNICEF had released a report stating that the number of girls getting married in India had
halved. Despite this drop, nearly 1.5 million girls in India get married before they turn 18. Child
marriage remains a social evil that India has seemingly had a hard time eradicating.

The legal age of marriage in India is 18 for women and 21 for men. Last year the Supreme Court
ruled that sex with an underage wife constituted rape.Certain influential politicians and
lawmakers in Madhya Pradesh continue to condone and support such the pernicious practice of
child marriage.

At one mass wedding ceremony in the Biaora Kalan village, approximately 69 couples, largely
within the age bracket of 12-16, got married.

What was even more shocking was the presence of leaders from both the ruling and opposition
parties at these mass wedding ceremonies. These leaders reportedly even blessed the couples.
The district administration estimates that nearly 1000 minor couples were married off.

Making matter worse, no calls to report and prevent child marriages were made to the helpline
number issued by the State women and child development department in the district. Local
police and administrators assert that even if they stop a marriage, the parents often take the
children away to another place and marry them off. The practice reportedly has the patronage of
influential politicians in the district.

The idea of lawmakers or potential legislators supporting such a brazen violation of the law and
go against a child’s interests is shocking.

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Going by the National Family Health Survey-4 statistics, nearly half the women between 20-24
years of age get married before the age of 18 (age of consent) in Rajgarh district. More than 60%
of the men between 25 and 29 years of age get married before the age of 21, while nearly 7% of
women between 15-19 become mothers or get pregnant.

Even with these statistics in the public domain, the administration seems helpless in dealing with
the situation on the ground.

Good news, however, came from Bhopal where the local police prevented three child marriages
thanks to the helpline set up by the State government. However faint, this is still a silver lining.

“When a girl is forced to marry as a child, she faces immediate and lifelong consequences. Her
odds of finishing school decrease while her odds of being abused by her husband and suffering
complications during pregnancy increase. There are also huge societal consequences and a
higher risk of intergenerational cycles of poverty,” said Anju Malhotra, UNICEF’s Principal
Gender Advisor, in a statement released by the agency last month. Child marriages have also
been a major driver in increasing the frequency of HIV/AIDS, delicate pregnancies, and other
such health implications.

Under the Prohibition of Child Marriage Act (PCMA), 2006, the marriage between a man above
18 years of age with a woman below 18 years of age, is punishable with imprisonment of two
years, a fine of up to Rs 1,00,000, or both.

If the male is an adult and the bride is a minor; the former can be prosecuted. Parents or
guardians encouraging, organising, abetting, forcing, conducting and even attending these
wedding ceremonies are liable for prosecution and punishment under both PCMA and the
Protection of Children from Sexual Offences (POSCO) Act. However, it is important to note that
if the State government goes by the letter of the law, it must prosecute those politicians who
attended these mass wedding ceremonies.

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Although child marriage is a non-bailable offence, the act recognised it as “voidable”, but valid.
Despite the enactment of the PCMA, this practice is not automatically void under India’s civil
laws. Under the current provisions of PCMA, the onus is on the child bride to declare her
marriage null and void within two years of attaining majority (20 years of age). If she does not
approach the courts and issue her declaration by then, the marriage stands. Considering the social
structure within which these minors exist, it is impractical to expect them to go against their
parents.

Karnataka, however, addressed this lacuna by inserting a provision in the Act for the state, which
declared that every child marriage, whether solemnised before or after the commencement of this
new provision of the law, will be treated invalid from the very outset. The apex court lauded the
Karnataka government for taking such a step and asked other states to follow suit.

Access to better education for young girls, greater impetus on spreading awareness against the
debilitating effects of child marriage by government agencies, and extensive work on the ground
by local non-profits have worked wonders.

However, a lot more work is required, particularly when it comes to the question of annulment of
these marriages. Although states like Karnataka have addressed the problem legally, what they
haven’t quite manage to achieve is ensure the safety of the girl child in such situations.

Having said that, the example of a “collaborative policing” strategy initiated by Rema
Rajeshwari, the former Superintendent of the Police of Mahabubnagar District in Telangana,
under the Balyaniki Raksha initiative (started in June 2016) offers a potential model for tackling
child marriage.

Collaborative policing is nothing but taking the help of all the concerned departments. Most of
the time, the first distress call is received by the local sub-inspector. SHOs are more sensitive
towards this issue. However, police alone cannot stop the child marriages. So, the services were
integrated.

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In addition to holding a series of meetings and awareness sessions about not just child marriage,
but any sort of abuse they suffer, with the various state departments working on the ground, the
local police also conducted community outreach programs attended by over 2400 priests, pastors,
and maulanas. At these sessions, these local religious figures were told that they would go to jail
and suffer other legal consequences for conducting these wedding ceremonies.

Such awareness programs resulted in a significant number of calls coming into the local police
stations about potential child marriage ceremonies, and reduced the number of child marriages
by nearly 65% over a span of two years, reports The News Minute.

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BOOK REVIEW

NAME OF THE BOOK: CHILD MARRIAGE IN INDIA SOCIO LEGAL

AND HUMAN RIGHT DIMENSION

AUTHOR: JAYA SAGADE

PUBLISHED BY: OXFORD

PUBLISHED IN: 2005

EDITION: 2ND

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LAWS RELATED TO CHILD MARRIAGE IN INDIA

The Child Marriage (Restraint) Act, 1929

This was the first of its kind legislation regulating the “child marriage” by prescribing the
required age of marriage for both the parties to the marriage across India. This act aims to
restrain the child marriage.

In the case of Sushila Gothala vs. State of Rajasthan the court stated that the minimum required
age for marriage is 18 years for girls and 21 years for boys.

Provisions of the Prohibition of Child Marriage Act, 2006

As a result of the ineffectiveness of Child Marriage Restraint Act, 1929, a new legislation to
replace it was enacted in the form of Prohibition of Child Marriage Act, 2006. The Act envisages
preventing child marriages with enhanced punishments of rigorous imprisonment for two years
and/or fine of INR 1 lakh. It defines a child to mean a male below 21 years and female below 18
years. A minor is defined as a person who has not attained the age of majority as per the Majority
Act. There are provisions for maintenance of the girl child. The husband is liable to pay the
maintenance in case he is a major. In case the husband is a minor, his parents would be liable to
pay the maintenance. The legal status of a child marriage is voidable at the option of the parties.
However, 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. The Act also provides for the appointment of a Child
Marriage Prohibition officer whose duties are to prevent child marriages and spread awareness
regarding the same.

Inconsistencies between different personal laws and secular law

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Prohibition of Child Marriage Act, 2006

Under PCMA, the marriageable age for a female is 18 years and for a male, it is 21 years. A
decree of nullity can be obtained by a girl who has entered into a child marriage within 2 years of
attaining the age of 18 years.

Hindu Marriage Act, 1956

Under the Hindu Marriage Act, only the parties to a child marriage are punishable even if they
did not consent to the union. There are no provisions for punishing the parents or people who
solemnised the marriage. A girl can get the marriage annulled only if she was married off before
attaining the age of 15 and she challenges the marriage before turning 18. There is no express
provision to prohibit child marriage per se.

Muslim Personal Law

Muslim law is not codified in India. Therefore, its provisions are based on the interpretation of
Quran by scholars. Under the Muslim law, there is no bar to child marriage. A guardian has a
right to get a child married. However, the couple has ‘option of puberty’ known as khayar-ul-
bulugh where they can repudiate the marriage after attaining puberty. However, they must do so
before turning 18 and only if the marriage has not been consummated. The age of marriage under
Muslim law is the age of puberty which is 15 years. However, marriage before the age of 7 even
if contracted by a lawful guardian, is void ab initio.

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Indian Christian Marriage Act (ICMA)

ICMA provides that a preliminary notice is to be issued 14 days prior to the marriage if the
marriage is to be contracted between minors. After the expiration of the said period, the parties
can go on with the marriage without the consent of their guardians.

Other personal laws

Under Parsi Marriage and Divorce Act (PMDA), a child marriage is invalid. However, the Act is
silent regarding age where the provisions for an invalid marriage are listed. Jewish law in India is
uncodified. Under it, the marriageable age is the age of puberty which is fixed at 12 years.

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CASE SUMMARY

(COURT ON ITS OWN MOTION(LAJJA DEVI AND ORS. V. STATE AND

ORS), 2012)i

1. After the aforesaid reference was made, as some other petitions involving same questions
came up for adjudication, they were also directed to be listed along with Writ Petition (Crl.)

2. the letter was treated as a Writ Petition and was placed before the appropriate Bench on 14th
March, 2008 whereupon notice was issued to the State directing it to file the Status Report.

She was sent to Nirmal Chhaya injudicial custody.

The Court sent the petitioner No. 1 to Nari Niketan till the time she attained the age of majority
vide orders dated 31.5.2010 at the same time the petitioner No. 2 was allowed to meet her twice
a week at least for two hours on each occasion vide orders dated 29.10.2011 As per the school
leaving certificate she completed the age of 18 years on 3.3.2011 She was released from Nari
Niketan and she decided to join the company of the petitioner No. 2 and has been living with
him.

1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less
than 21 year could be said to be valid marriage and the custody of the said girl be given to the
husband (if he is not in custody)'

2) Whether a minor can be said to have reached the age of discretion and thereby walk away
from the lawful guardianship of her parents and refuse to go in their custody'

13. We would like to mention that the reason for referring the aforesaid questions for
consideration by Larger Bench arose on account of three Division Bench judgments of this Court
wherein view was taken that marriage of a minor girl would neither be void nor voidable under
the Hindu Marriage Act, 1955 (hereinafter referred to as the HM Act).

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Whether a marriage contracted by a boy with a female of less than 18 years and a female of less
than 21 year could be said to be valid marriage and the custody of the said girl be given to the
husband (if he is not in custody)'

Provided that no order under this section 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.

(b) According to Section 2(a) of the Prohibition of Child Marriage Act, 2006, a 'child' means a
person who, if a male, has not completed twenty-one years of age, and if female, has not
completed eighteen years of age.

Section 9 of the said Act provides for punishment for a male adult above 18 years of age
contracting a child marriage punishable with rigorous imprisonment which may extend to two
years or with fine which may extend to Rs.

(d) The offence carries a punishment which may extend up to 2 years and clearly the offence
would be bailable and non-cognizable.

According to Section 2(a) of the Act, "child" means a person, who, if a male, has not completed
twenty-one years of age, and if a female, has not completed eighteen years of age and according
to Section 2(b) of the Act, "child marriage" means a marriage to which either of the contracting
parties is a child.

The Court had no occasion to refer to the provisions of Section 12 of the Act.

The ratio laid down in these cases is not applicable.

The said judgment is also of no help to the present petitioners.

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I have found that provisions of Section 12 of the Act would apply with full rigour in the present
case and the marriage which has been solemnised by petitioner No. 2 with petitioner No. 1, who
is child and a minor, is unsustainable in the eyes of law and is declared as void.

Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the
Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973,
an offence shall be cognizable and non-bailable.

I hold that the person who has performed or abetted the child marriage of petitioner No. 1, is also
equally liable and for that purpose, I direct the State to take appropriate action by lodging the
case against the persons who are responsible for the performance of the child marriage in the
present case.

P.C can be granted by this Court because in that eventuality police protection has to be granted to
a fugitive of law."

The Inspector of Police, (HCP No. 907/11 decided on 3.10.2011), which is a judgment by the
Full Bench of the Madras High Court.

"(1) Whether a marriage contracted by a person with a female of less than 18 years could be said
to be valid marriage and the custody of the said girl be given to the husband (if he is not in
custody)'

20. The Full Bench of the Madras High Court referred to the provisions of HM Act as well as
PCM Act.

Irrespective of personal laws, under this Act child marriages are prohibited.

The PCM Act, being a special law, will have overriding effect over the HM Act to the extent of
any inconsistency between the two enactments.

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If, within two years from the date of attaining eighteen years in the case of a female and twenty-
one years in the case of a male, a petition is not filed before the District Court under Section 3(1)
of the Prohibition of Child Marriage Act for annulling the marriage, the marriage shall become a
full-fledged valid marriage.

We hold that though such a voidable marriage subsists and though some rights and liabilities
emanate out of the same, until it is either accepted expressly or impliedly by the child after
attaining the eligible age or annulled by a court of law, such voidable marriage, cannot be either
stated to be or equated to a 'Valid marriage' strict sensu as per the classification referred to
above."

The Division Bench was of the view that the validity of marriage is primarily to be judged from
the standpoint of personal law applicable to the parties to the marriage.

The Full Bench of Madras High Court has undertaken indepth discussion of this evil of child
marriage in India.

8. It cannot be disputed that the aforesaid marriage is in violation of provisions of the Prohibition
of Child Marriage Act, 2006 inasmuch as Chandni is minor and in below the age of 18 years.

(ii) Young girls who lack status, power and maturity are often subjected to domestic violence,
sexual abuse and social isolation.

Studies indicate that women who marry at young ages are more likely to believe that it is
sometimes acceptable for a husband to beat his wife, and are more likely to experience domestic
violence themselves.

As would be seen hereafter, the legislature has still not made adequate and effective provisions in
the laws to make such a marriage as void.

(v) To empower the district Court to add to, modify or revoke any order relating to Maintenance
of the female petitioner and her residence and custody or Maintenance of children, etc.

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(vii) To empower the Courts to issue injunction prohibiting solemnsation of marriages in
contravention of the provisions of the proposed legislation.

The term "child" in Section 2(a) means a person who, if a male, has not completed twenty-one
years of age, and if a female, has not completed eighteen years of age.

Sub-section (4) protects a female child, who was married, and stipulates that the
district court can pass an interim or final order directing payment of Maintenance to her.

The said right of the Hindu females to ask for divorce, does not mean that a petition before the
district court cannot be filed under Section 3 of the PCM Act.

PCM Act as noticed above is a secular law and is a latter enactment, which specifically deals
with the problem of child marriages.

PCM Act being a "special Act" and being a subsequent legislation, to this extent and in case
there is any conflict, will override the provisions of HMA Act or for that matter any personal
law.

As noticed below, a Division Bench of this Court in W.P (Crl.) 1003/2010 decided on
11.08.2010 Jitender Kumar Sharma v. State, has been held that PCM Act is a secular law.

The legislature even made the child marriage a punishable offence by incorporating provision for
prosecution and imprisonment of certain persons.

PCM Act, which is a secular law, treats this marriage as voidable except those events which are
covered by Section 12 of the PCM Act.

We cannot hold child marriage as a nullity or void.

The next question that follows is as to whether the provisions of personal law, i.e, Hindu
Marriage Act should be applied to declare such a marriage as valid or the provisions of PCM Act
would prevail over the HM Act.

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By keeping a lower age of consent for marital intercourse, it seems that the legislature has
legitimized the concept of child marriage.

The provisions containing legal validity provide an assurance to the parents and guardians that
the legal rights of the married minors are secured.

35. even after the passing of the new Act i.e the Prohibition of Child Marriage Act 2006, certain
loopholes still remain, the legislations are weak as they do not actually prohibit child marriage.

36. Mr. Deep Ray of NALSAR University of Law, Hyderabad has pointed out the following
three loopholes in his article "Child Marriage and the Law".

It is in keeping with the social reality that such marriages are not declared void.

Social customs and personal laws of different religious groups in India allows marriage of minor
girls and the Prohibition Child Marriage Act, 2006 does not mention whether it prohibit all the
underage marriages that are sanctioned by religious laws.

We would also hasten to add that there is no challenge to the validity of the provisions and
declaration by the legislature of such a marriage as voidable even when it is treated as violation
of human rights and also punishable as criminal offence as proper or not, cannot be gone into in
these proceedings.

In the behalf, we would like to point out that the Law Commission has made certain
recommendations to improve the laws related to child marriage.

(a) In the case of a boy or an unmarried girl-the father, and after him, the mother: provided that
the custody of a minor who has not completed the age of five years shall ordinarily be with the
mother;

It was submitted that the husband, even if a minor, would be the guardian of his wife.

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(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or
her guardianship will not be for the welfare of the minor."

There would be many other factors which the Court will have to keep in mind, particularly in
those cases where the girl, though minor, eloped with the boy (whether below or above 21 years
of age) and she does not want to go back to her parents.

We are of the opinion that there cannot be a straight forward answer to the second part of this
question and depending upon the circumstances the Court will have to decide in an appropriate
manner as to whom the custody of the said girl child is to be given. Go to

Consent below the age of 16 years is immaterial, except when the rape is committed by a male
who is married to the girl.

The Court while deciding, should also keep in mind that such marriages are voidable and the girl
has the right to approach the Court under Section 3 of the PCM Act to get the marriage declared
void till she attains the age of 20 years.

56. In the Writ Petition, the question is only of validity of marriage and guardianship.

The marriage becomes valid now.

The Writ Petition is disposed of in the aforesaid terms.

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ARTICLE REVIEW

NAME OF THE ARTICLE: MARRIAGE PATTERN IN SOUTH AFRICA:

METHODOLOGICAL AND SUBSTANTIVE ISSUES

AUTHOR: DEBBIE BUDDLENDER, NTEBALENG CHOBOKOANE

PUBLISHED BY: POPULATION ASSOCIATION OF SOUTH AFRICA

YEAR: 2004

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COMPARATIVE STUDY WITH SOUTH AFRICA

PREVALENCE OF CHILD MARRIAGE IN SOUTH AFRICA

In South Africa much public attention on child marriage has been focused on the customary
practice of ukuthwala. Ukuthwala is the mock abduction of an unmarried woman or girl for the
purpose of a customary marriage. Unfortunately there is no data available to indicate the
relationship between ukuthwala and child marriage, and the prevalence of the practice. Media
and other reports indicate that the practice is commonly practised in the rural parts of the Eastern
Cape and KwaZulu-Natal. However, it is important to emphasize the fact that as a legitimate
traditional practice that may lead to a valid customary marriage, children who have not reached
the marriageable age were not involved in the practice. However, the fact that the marriageable
age according to custom is the age of puberty, which is usually attained before the age of 18
years, means that ukuthwala leads to child marriage. In addition, the laws that govern customary
marriages, namely, the Recognition of Customary Marriage Act (RCMA), read together with the
Marriages Act which allows minors to get married provided they have the necessary consent,
arguably may be contributors to the challenge to ending child marriages in South Africa.

CHILD MARRIAGE AND CULTURAL PRACTICES IN SOUTH AFRICA

South Africa, by prescribing the marriageable age to be 18 years for both girls and boys under
the Recognition of Customary Marriages Act, arguably has outlawed all customary marriages of
children under the age of 18 years. However, the Recognition of Customary Marriages Act, read
with the Marriage Act, allows persons below the age of 18 to get married provided they have the
necessary consent. This position sends conflicting messages in respect of efforts to end child
marriages linked to customary practices in South Africa. In addition, statutory rape, namely,
consensual sex with a child below the age of 16 years, assault, rape and kidnapping, all implicit
in the modern-day practice of ukuthwala, are criminally sanctioned in terms of the Sexual
Offences Act.

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More recently, the South African Law Reform Commission proposed the Prohibition of Forced
Marriages and Child Marriages Bill, 2015 which seeks to outlaw and criminalise all forced and
child marriages as a result of, among other factors, ukuthwala. The Prohibition of Forced
Marriages and Child Marriages Bill is a response to concerns expressed from the Gender
Directorate. The Gender Directorate argued that children affected by ukuthwala, resulting in their
rights to personal safety and well-being being violated, are at risk of lifelong developmental
burdens, including HIV infection and other physical, emotional and social problems. The
Directorate also stressed that South African values, beliefs and practices must be consistent with
the Constitution, which specifically guarantees the rights of children. Concern was particularly
raised about the impact of ukuthwala on the girl child and the appropriateness and adequacy of
current laws on ukuthwala, and whether the laws uphold the human rights of the girl child, taking
into consideration the principle of the best interests of the child.

With this end in view, the Law Reform Commission produced a report on ukuthwala which
culminated in the Prohibition Bill. As pointed out earlier, the Prohibition Bill is aimed at
criminalising forced marriages and child marriages, including those as a result of ukuthwala. If
the Prohibition Bill becomes law, it will be the first time that such child marriages will be
criminalised in South Africa. Besides criminalising forced marriages and child marriages, the
Prohibition Bill will give effect to international law and the constitutional values of human
dignity. It will require that marriages are entered into freely and without any form of coercion,
and will provide for the prosecution and penalties of persons who commit offences. At the same
time, the Prohibition Bill has a number of shortcomings in that it does not set out the
marriageable age of 18 years without exceptions. The Prohibition Bill also does not repeal
provisions that allow children to get married in both the Marriage Act and the Recognition of
Customary Marriages Act. Finally, the Prohibition Bill does not amend provisions in the
Children's Act that are vague in relation to the minimum age of marriage and the betrothal of
children.

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CONCLUSION AND SUGGESTIONS
Child Marriage is a menace that cannot be curbed without support from the society. There have
been demands to make child marriage void ab initio under the Prohibition of Child Marriages
Act, but Indian society is complicated and complex and making child marriages void will only
jeopardise the rights of women who are victims of child marriage. Mere legislation will not serve
the purpose unless there is support and backing from the society. Uniform Civil Code would also
help in preventing child marriage to some extent.

Law reform to end child marriage, linked to practices embedded in culture, is considered a
difficult task since it presents a potential conflict between children's rights and cultural rights.
South Africa therefore, is to be lauded for their various positive law reforms. These laws present
the potential to be instruments to fight child marriage.

However, an examination of the process leading to these reforms indicates that there are many
aspects central to children's experiences in places where child marriage is most prevalent that
have not been addressed. A crucial, and the most obvious, issue is poverty. It has been widely
observed that poverty is behind most cultural practices such as lobolo (bride wealth), ukuthwala,
kupimbira, and kuvar/ra. If efforts to end child marriage are to be meaningful to the children
affected, it appears obvious that the process of law reform needs to be coupled with practical
ways of addressing factors that perpetuate harmful cultural practices linked to child marriage.

Some practical ways, as proposed by the Girls Not Brides consortium, include mobilising
communities to be agents of change and, more importantly, empowering girls. This bottoms-up
approach, as championed by Channock, will ensure that change is grounded in peoples' reality
and not just imposed on them. In addition, it is also obvious that, in the selected countries, the
factors that lead to child marriage are not unique to the region. Therefore, much more can be
learned from efforts of other countries, particularly in Northern Africa, where UNICEF has
reported good progress in the fight against child marriage, a matter for discussion elsewhere.

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i
Court on its own motion (lajja devi v. state and ors)

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