TITLE

Subject – Legal History

Semester 1, Year 2019

SUBMITTED BY:

Abhinav Singh Chauhan (2019/BBA LLB/001)

Abhishek Rai (2019/BBA LLB/002)

SUBMITTED TO:

Mr. Kapil Sharma

(Research Associate cum Teaching Assistant)

TABLE OF CONTENTS
Acknowledgement 3
Introduction 4
Research Methodology 5
Objectives 5
Research Questions 5
Scope and Limitations 5
I. Ancient India and marriges 6
II. Child marriage restraint act 8
Historical background 9
SALIENT FEATURES OF THIS ACT 9
ANALYSIS OF PROHIBITION OF CHILD MARRIAGE ACT 2006 11
MINIMUM AGE AND ANULLMENT OF MARRIAGE- 11
PUNISHMMENT FOR THE OFFENCE- 11
CHILD MARRIAGE IS VOIDABLE IN NATURE 12
REGISTRATION OF MARRIAGE 12
Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 13
CHILD MARRIAGES ARE VOID AB INITIO 13
MINIMUM PUNISHMENT 14
SUO MOTO COGNIZANCE 14
 ACKNOWLEDGEMENT
This project is a subject of extensive research could not have been completed without a few
things. First of all, we would like to express our gratitude to our teacher MR. KAPIL SHARMA
for helping and guiding us towards the completion of this project. We would also like to
thank the administration for the provision of best facilities without which the completion of
this project would have been impossible. We would also like to acknowledge the constant
support of our seniors who showed the right track. Lastly, we would like to thank the
almighty whose blessings helped us to complete this project.
 INTRODUCTION
Marriages in India is something that whole of India prides upon, be it rituals, ceremonies or
parties and gathering it has, but sometimes this marriage is something on which community
should not take pride upon. Imagine yourself in a situation where someone is giving you
something for rest of your and you can’t change it, can’t refuse it and don’t even realize what
actually is happening with you, but after 10-12 years you realise that something with your life
is wrong and you’re unable to do anything about it.

That something is Child marriage, from being glorified in ancient India to being a social
stigma in modern India. Nevertheless the debates about the child marriage are endless and
ambiguous. The current situation of child marriage is that it is illegal preliminary in laws, but
ground realities are a lot different. Still there are people who think that this right for their
child and some are force to do it by pressure of society or community.

Child marriages lead to depression, cervical cancer, sexually transmitted diseases, isolation
and child and maternal mortality. Usually girls get married to a lot of elderly males, and
because of the enormous age gap there will be a distinction in mutual knowledge that results
in girls being dismissed, isolated and depressed. Another result is that girls get infected with
sexually transmitted diseases. They contract diseases such as gonorrhoea, herpes simplex
type 2 virus, HIV and chlamydia. There is also a danger of dying between mom and baby.
Young girls' pelvis are tiny, so they are not capable of bearing kids. Death can also be caused
by poor nutrition, absence of access to social and reproductive facilities, and infectious
diseases. This practice robs their childhood, decreases access to education, exposes them to a
number of sexually transmitted diseases, and even leads to death. Such regressive practice
must be halted.
 RESEARCH METHODOLOGY
We have undertaken a thoroughly descriptive research approach. Information has been taken
from both the primary sources and secondary source, Books, Federal Law Reports,
Legislative Assembly Reports have all been pivotal material for the making of this project.

OBJECTIVES

● To shed light on the customs associated with marriage in ancient India.

● To understand the ideology of people towards marriage.
● To analyse the effect of legislations and awareness to avoid child marriages.

RESEARCH QUESTIONS

● How early is the custom of child marriage and what are the social norms for
marriage?
● To analyse Various problems and legislations associated with child marriage.

SCOPE AND LIMITATIONS

The scope of this project has been kept reasonable. Considering, there are not a lot of
resources available on the child marriages in India and ideologies associated with it. it was
certainly not possible to have a wide ambit and consider everything about the Child marriages
in this project.
 I. ANCIENT INDIA AND MARRIGES

In India have always been a sacrosanct sacrament between two families rather than between
two people as we witness in other parts of the world. In ancient india marriage was seen as a
means to bring two distinct halves of life together. husband and wife were not considered as
two different entities capable of division but were considered two units of a single whole
entity. Entity in which whole humanity could manifest itself and at those times the family
rather than the individuals were believed as a complete social and political. Marriages were
considered as a permanent union which has a power to balance the imbalances that may arise
in life, to grow stronger and more stable rather than being a temporary contract to serve the
physical demand of the moment or to enjoy or nurture the demand of good company for heat
of time and then to not able to sustain the slightest inconvenience.

The primary function of marriage was for the continuance of the race by procreation of the
children and to ensure that the cultural heritage is being transmitted as marriage was regarded
as a sacred religious union that can sustain adversaries arising in life.

The the age of marriage between the both sexes very considerably with chang in province,
time caste and age. a boy was expected to marry after he has finished his vedic study is which
varied from 12, 24, 36 and 48 years of age of as much time as necessary who master one veda
or a certain portion of that veda. Hence, the common age of a boy to marry was around 20
years. Angiras said that the age of the bride should be 2, 3 or 5 years less than the age of
groom, i.e., the girls were to be married before the age of 15 years. Nevertheless this trend of
marriage flourished during the vedic age and countinued till 5th century BC, after that the
writers of dharmashutras started advising that the girls should not be unmarried after they
have attained the puberty. During the age of commentaries, the right time of marrying girls
was after she had attained the age of 8 years and before she hit puberty. The relative age of
bridegroom and bride was not fixed during this period as it was in smritis. Manu Smriti
recommended that a man of a 30 years shall marry maiden of 12 years who pleases him, or a
man of age 24 shall marry a girl of 8 years of age. Bhishma says in Anushasana Parva of
Mahabharata that a person of 30 years of age should marry a girl of ten years of age, called
Nagnika1. the aim for this early marriage was to ensure that the founding stone is based on
the innocent or rather naive attraction and affection before the mind being affected by Kama
desires. it was further recommended by manu that after the appearance of puberty the
unmarried girl should wait for 3 years on the 4th year he should look for husband herself and
not to wait for the for her kinsmen to select one for her the offspring of search girl do not lose
their respective respect nor does union with search a girl become disgraceful.
The customs and practices till 1800 AD did not permit, for unknown reasons, the girls to
remain in their parental home for more than 6 to 8 years after their birth. A father who could
get his daughter marrird in her 9th year was considered lucky and worthy of the favours of
god.2
The british period was afraid of social reformers many reform were introduced in the 19th
century and the centre for those forms were women. The scenario at that time was that the
practice of marriage long ago before the puberty was a prevalent custom amongst Hindus.
The major problems with this early age marriage was that the marriage was done between the
age of 5 to 10, this deprived girls of any opportunity to seek any education and denied
altogether in a way the matter of selecting there partners for the rest of their life.
In 19th century Madras government band the marriage of girls below 12 years of age and
passed a legislation to prevent unequal marriages of men over 45 years of age and girls below
14. Another legislation was passed in Baroda that fixed the minimum age of marriage for
boys at 16 and for girls at 12.

1
The one who wears onlyba single piece of cloth
2
Mukundrama, The Bengal in the 16th Century (Chandi, translated into English by J N Das Gupta)
 II. CHILD MARRIAGE RESTRAINT ACT

During British regime in India the child marriage restraint act 1929 was introduced in the
imperial legislative council of India. This act was popularly known as Sarda act as it was
sponsored by Harbilas Sarda. It applied to all of British India, this act fixed the age of
marriage for girls at 16 years and for boys it was 18 this age was later amended to 18 for girls
and 21 for boys. Despite the strong opposition from the British authorities this legislation was
passed by the British Indian government which mainly consists of Indians, however, it lacked
implementation from the British government as British government feared the loss of support
from their loyal Hindu and Muslim communities in India that did not wanted this act.

Before this act, there were many bills addressing question on the age of consent were
introduced but they were subsequently defeated. In the 1927, Rai Sahib Hariblas sarda
introduce Hindu child marriage bill in the central legislative assembly. Under the global
pressure the social reformers in India in the national freedom fighters, government referred
the bill to a select committee named as the age of consent committee. The first social reform
taken up by the women in India was the child marriage restraint act.

Although this act was considered as the victory of women and other social groups but the act
itself was a failure. In the year 1931 census that was made available to the public the number
of wives under 15 had increased from 8.5 million to 12 million but the number of husband
under the age of 15 has gone from 3 to more than 5 million. However, during the British
colonial rule this rule remained dormant, as this was largely due to the fact that the
government did nothing to spread awareness of it as britishers didn't want to upset
communities which opposed this act. Thus this infamous "Dual Policy" prevented any
significant social reform.
 HISTORICAL BACKGROUND

In view of the felt ineffectiveness of the Child Marriage Restraint Act, 1929, there was a
growing need felt for more strict and stringent laws to be enacted with respect to child
marriages. The punishments and penalties within the Act were not sufficient to prevent the
menace.

In its 1995-1996 Annual Report the National Commission for Women recommended that the
Government must appoint the Child Marriage Prevention Officers immediately3

Upon consultation with the State Governments and Union Territory Administrations with
regards to the above mentioned reports, the Central Government decided to accept almost all
the recommendations by repealing and re-enacting an improved law. The Prohibition of Child
Marriage Bill was a result of this effort. The Bill passed both the Houses of Parliament
received the Presidential Assent on 10th January, 2007. This gave birth to the present day
Prohibition of Child Marriage Act, 20064 endeavour to check the danger of child marriage
and to remedy the defects contained within the Child Marriage Restraint Act, 1929, the
Government enacted the Prohibition of Child Marriage Act, 2006. This Act was an
improvement on the prior CMRA, 1929 and might unquestionably be said to be a positive
step towards battling this genuine rights violation against children.

SALIENT FEATURES OF THIS ACT

The Prohibition of Child Marriage Act, 2006 (hereinafter called PCMA) was in numerous
way stark departures from the former Child Marriage Restraint Act, 1929. Some of the key
features of this included Act -

● Child marriage restraint act 1929 declared marriage to be voidable at the option of the
minor getting married, there was no provision of annulling it. PCMA didn’t go far to

3
'The Prohibition Of Child Marriage Act, 2006' (Google Books, 2019) <https://books.google.co.in/books?
id=uHFLYimaEEgC&pg=PA1&lpg=PA1&dq=national+commissi#v=onepage&q=national
%20commissi&f=false> accessed 21 August 2019.
4
The Prohibition of Child Marriage Act, 2006 (6 of 2007)
 that of CMRA. Though still not making it void ab initio It only made person who was
minor at the the time of marriage being provided with an option to annul the marriage
after two years of attaining majority i.e. for boys age of majority is 21 years so they
can annul his marriage in case of child marriage is 23 years whereas for girl age of
majority is 18 years, so she can annul her marriage till the age of 20 years in case of
child marriage which is 2 years after attaining majority.
● There is a provision included apart from the two individual included in the child
marriage i.e. for the child born out of marriage. It includes issue related to custody
and the maintenance of the child born out of such marriage. Also the child born
through this marriage will have value in the eyes of the law i.e. it will be considered
as legitimate
● Offences have been made non-bailable and cognizable.
● District court has also got a role in this act. It can make changes related to the law
related to the female petitioner maintenance and even the custody of the child from
the marriage.
● Period of sentence has increased to two years along with increase in fine extending to
Rs one lakh.
 ANALYSIS OF PROHIBITION OF CHILD MARRIAGE ACT 2006

MINIMUM AGE AND ANULLMENT OF MARRIAGE-

This is one of the things prevailing from the Child Marriage Restraint Act, 1928 .In the
year 1978 there was a change in the CMRA related to the age of majority of both boys
and girl. Age of majority of boys was increased from 18 to 21 and that of girls was
increased from 15 to 18 without any rationale behind this change, clearly showing the
inequality between the two genders. Also in PCMA 2006 there has been a change related
to the annulment of the marriage i.e. after a marriage can be annulled after 2 years of
attaining majority for both the genders. For male he can annul his marriage till the age of
23 and for a girl it is 20 i.e. for both of them it is 2 years after their respective age of
majority which again shows the irrationality behind the decision. This is a huge disparity
as the girl is still young at the age of 20 with very less knowledge related to means of her
survival in case of annulment of the marriage. Also she is very young to take decisions
for herself.

PUNISHMMENT FOR THE OFFENCE-

There has been an increase in the part of punishment In CMRA 2006 to that of PCMA
1928. There is a provision for rigorous punishment extending upto 2 years and fine
extending up to Rs 1 lakh but again there is a loophole as there is no data related to what
should be the minimum punishment ,which leads to huge gap between the punishment
awarded and maximum punishment present, which makes one think about the law.In
most situation the cases are not reported and in the one in which it is reported the
punishment given sometimes does not justifies the crime committed. In the year 2012,
169 cases were registered under the Act and 40 persons were convicted under the Act 5. In
the year 2011, there were 113 cases registered in total under the Act and 76 persons were
convicted6. There is clearly no doubt that there has been a weak foundation in part of
5
Press Information Bureau, ‘Cases registered under Prohibition of Child Marriage Act, 2006’ (MWCD, 11
August 2014) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=108460 > accessed 19 August 2019
6
ibid
 implementation of law. There is a major issue in the reporting of the matter. The police
cannot take suo moto cognizance of the offence committed under its jurisdiction. They
have to wait for the offence to be reported to take action. Upon successful solemnisation
it continues to be a valid marriage and the police take no action to it. Also the socio
cultural environment there make people once before reporting as they fear that their name
may be disclosed and they may be threatened as there is serious repercussions and no
protection.

CHILD MARRIAGE IS VOIDABLE IN NATURE

PCMA 2006 has made a change to the marriage condition compared to that CMRA 1928
related to annulment of child marriage. It has child marriage voidable but not void ab
initio which again raises a question. This is a paradoxical situation that if none of the
party make a complain regarding the marriage aand moves to the court for its annulment
then the marriage is solemnised and legal in the eyes of law.

REGISTRATION OF MARRIAGE
The PCMA 2006 has made no statement regarding the registration of the marriage. As it
makes changes regarding the annulment of marriage by making the marriage voidable
but by not making registration compulsory does not make the changes successful. As
there is no proof regarding the marriage happening in form of registration the aggrieved
party cannot go and ask for annulment to the court regarding the child marriage thus the
law fails in its own deficiency of rule. The compulsory marriage is still undergoing the
developmental phase but there is no legislation through centre which make sure regarding
the registration of marriages.

In the year 2006, the landmark judgement of Seema vs. Ashwini Kumar 7 delivered by the
Supreme Court of India was an important step towards making marriages compulsory
registration in India. This was in the backdrop of light being thrown upon the fact that in
many cases some unscrupulous people were denying the existence of their marriage itself
and in the absence of any proof, it was extremely difficult to prove the same.

“The National Commission of women made it clear in their affidavit that their needs to
be clear change in law by making registration of marriages compulsory.They also said it
will help in addressing various critical issues like-

7
2006 (2) SCC 578
 ● Prevention of child marriage.
● Prevent of bigamy/polygamy.
● Prevention of marriages without the consent of the parties.
● In some way helping the widow women after the death of their husband claim
their rights of inheritance.”8

Prohibition of Child Marriage (Karnataka Amendment) Act, 2016

There has been a recent amendment in the PCMA 2006 by the government of India. It made
revolutionary changes which was the need of the hour which includes-

● Child marriages has been made void ab initio which in earlier was voidable
● Police can take action suo moto cognizance under the given act for the offence which
is an addition to this section.
● There has been an inclusion of the term minimum punishment which was missing
earlier. There is an inclusion of one year of rigorous punishment.

CHILD MARRIAGES ARE VOID AB INITIO

This is one of the changes that was welcomed as it was required for the welfare of the society
and people being exploited because of absence of this clause because-

● .Earlier it was voidable that means if the marriage is solemnised and none of the
parties goes to the court for annulment of the marriage then the marriage stands valid
in the eyes of law .The female gender was being exploited in this as they were minor
with very little knowledge of the law, with no stand in their opinion in choosing their
partner.
● Very less case went for being annulled as by the time girl turns major they have
atleast one child in most case. With little or no education and financial help they are
compelled to live with their partner in abusive society as they feel that they are
vulnerable outside of marriage as they lack social and financial security
● Time provided for cases in which marriages can be annulled for child marriage was
two years after attaining the age of majority. Which was again an irrational decision
backed with no theory as for women the age of majority is 18 years that means by 20
they have they the option of getting their marriage annulled which is not correct

8
Ibid para 5
 because they are still very young at 20 with very less or no security and not being
completely mature whereas it was 23 age for boys to get their marriage annulled.

But this amendment also comes with few repercussions-

● Husband can dissolve the marriage anytime leaving the girl stating that the marriage
was void ab initio thus making the girl vulnerable.
● The girl might be pregnant or having child still can be abandon by her husband on the
pretext that the marriage is void ab initio.
● As there is still no mentioning regarding the registration of marriage the female
gender is still vulnerable as she has no proof regarding the marriage taking place.

MINIMUM PUNISHMENT
There has been an inclusion of minimum punishment of 1 year of rigorous imprisonment
which is seen as an major step in ensuring that those people who are involved in such
activities are prevented from doing so by making them realize the magnitude of
offence committed by them. Earlier PCMA was not able to make a major impact on
cultural and social norms but by this change it is expected that it will uproot this
cultural norm and place it back into the books of law so that no one who commits the
crime can escape through it. It is important to have a series of cases and examples in
society so that the families who participate in this social evil are compelled to become
fearsome.

SUO MOTO COGNIZANCE

Earlier police had to wait for the case to be reported then they can take action but now police
can take action on its part. This also makes police realise their importance in
curtailing this practice and will eventually ensure that no girl in their jurisdiction is
victimised to this practise.

PROBLEMS FACED IN CHILD MARRIAGE-

 ● HEAVY BURDENS IN LAWS FAMILY-
Women’s work in household involves a lot of activities such as they are engaged in
household for supplementing family income. Mostly the strenuous work on her part
and men control the assets and income thus curtailing the freedom of women.
Looking after the child, being a child she herself has to play the role of an elder. She
has to play multiple roles in the family despite the fact that it is majorly beyond her
capabilities.
● PREGNANCY-
Early marriage cases also include a girl before reaching her maturity giving birth to an
individual. Delaying pregnancy until the girl turns 18 years helps to ensure safe
pregnancy and child birth. Children born to young women are likely to die within a
year. Girls who give birth before the age of 15 are more likely to die in childbirth .
● DESIRE FOR MALE CHILD
Due to the social norms in the backward areas of having a male child, the girl is conceived
numerous times until she gives birth to a male child despite the fact she is young and
her age doesn’t allow as it can have adverse health affects.
● DIFFERENCE IN THE AGE OF BRIDE AND BRIDEGROOM-
Usually in child marriage the female is young to that of male which results in difference in
maturity level . Also as the girl is not independent and small with no opinion of her
own she is majory dominated by her male counterpart making her obey her husband
even if she has a different opinion to it or not.
● VULNERABILITY to HIV Infection-
Girls are physiologically more prone to contracting HIV to that of the male counterpart as her
vagina is still not lined with cervix cells and her cervix may be penetrated easily.
Marriage can also put young girls at the risk of contracting the virus as they male
counterpart are much older and they might engage in unprotected sexual relations
with other partner. Also married adolescent girls inability to negotiate safer sex and
other social pressure represent a critical channel of vulnerability.
 CONCLUSION

Child marriage being a social practice in ancient India followed by people of each stratum
was some kind of duty obligated on people by various texts and commentaries. Those who
didn't or were unable to follow the practice of child marriage, especially the girl's family
were looked down upon by whole society. There are many physical and psychological
problems associated with child marriage, the pressure of family and extended family and
the passion of in laws to get a male child, which leads to complications associated with the
pregnancy of underage child. The child at that tender age can't bear the pressure of having a
family, which is forced upon him, so that society don't look down on his family.
Nevertheless, thing started changing with advent of Child Marriage Restraint Act in the year
1929 by Britishers, but it was not effective as Britishers didn't want it to be in order not to
upset prominent upper classes in which child marriage was prominent. The ineffectiveness
of The Child Marriage Restraint Act was removed by the introduction of the Prohibition of
Child Marriage act in the year 2006 on recommendation of annual report of the year 1995-
96 by National Commission of women which demanded for more stringent law. This act
bought the provisions of minimum age and annulment of marriage with itself. This act also
provided for punishment to offender and registration of marriage compulsory. The
amendment in the year 2016 provided minimum punishment of 1 year an allowed police to
take Suo Moto cognizance of the offence.

Even after such laws the Child marriage marriage is not completely abolished and
is still prevalent, especially in Rajasthan and Haryana. The corruption and
loopholes in the system acts as cherry on the cake, which make it easy to bypass
the law.

Nevertheless no laws can change the society until and unless people want to
change, educating them about child marriage and problems associated with it
may help to eradicate the act completely. vulnerability