Validity of child marriage under Hindu Law in view of Prohibition of

child marriage act, 2006

A child or minor’s marriage is a perfectly valid marriage. Although sec
5(3) of Hindu marriage Act Provides that at the time of marriage the
boy should be of 21 years of age and girl of 18 years, yet a marriage
in contravention of this condition is neither void or voidable. The act
only provide for some punishment (sec 18) for such marriage.
However, Prohibition of child marriage Act, 2006, which came into
force on 1-11-2007, provides for the prohibition of solemnization of
child marriage and for matters connected therewith. Under the act,
child marriage is voidable at the option of the contracting party to
the marriage, who was a child at the time of the marriage. ‘Child
marriage means a marriage to which either of the contracting parties
is a child. A Child means a person who, if a male has not completed
at the age of 21 years of age, and if a female, has not completed 18
years of age.
A petition for annulling a child marriage by a decree of nullity may be
filed in the district court (a family court In an area where such court
exists)by contracting party to the marriage who was a child at the
time of the marriage. While granting a decree of nullity, the court
may also order to the male contracting party or his guardian to pay
maintenance and make provision for residence for female
contracting party till her marriage.
Under the act, marriage of a minor child is void in certain situations.
Promoting or permitting solemnization of child marriage (by parent
or guardian or any other person organization in any other capacity,
Lawful or unlawful is punishable with imprisonment up to 2 years
and fine up to rupees 1 lakh. Courts can issue injunctions prohibiting
solemnization of marriages in contravention of the provisions of this
act.
The act has also amended the Hindu marriage act, 1955. In the hindu
marriage act, in sec 18, for clause (a), the following clause shall be
substituted ‘(a) in the case of contravention of the condition
specified in sec 5(3), with rigorous imprisonment which may extend
to 1 Lakh rupees, or with both.
The “ineffective” child marriage Restraint Act , 1929 has been
repealed by the 2006 Act.
Marriage of the girl (even minor) without her consent and against
her wishes is a voidable marriage under sec 12(1)(c). It is Important
to note that [****no consent****] do not invalidate the marriage as
absence of consent is obtained by force example at gunpoint or
Fraud for example misrepresentation as to husband), then the
marriage can be avoided.
[***PROHIBITION OF CHILD MARRIAGE ACT , 2006***]
With a view to restraining solemnization of child marriage the child
marriage restraint Act 1929 was enacted. The act was amended
subsequently in order to raise the limit of the male and female
persons for the purpose of marriage. The act though restrains
solemnization of marriage makes this act punishable but does not
declare them to be void or invalid.
In the changing times there is a growing demand for making stricter
provisions about the punishments to make the law more effective in
order to eradicate the evil practice of child marriages in the country.
This will enhance the health and status of women.
[***Features of the prohibition of child marriage act, 2006***]
[ol]
[li]child marriage to be voidable at the option of contracting party
being a child (sec 3)[/li] [li]Decree of nullity (sec 3) [/li] [li] Provision
for maintenance and residence to female contracting party to child
marriage (sec 4). [/li] [li]Custody and maintenance of children of child
marriages (sec 5). [/li] [li] Legitimacy of children born of child
marriages (sec 6). [/li] [li] District court is empowered , under sec 7,
to add to , modify or revoke any order relating to maintenance of the
female petitioner & her residence (under sec 4) and custody or
maintenance of children, etc. (under sec 5).[/i] [li] Punishment for
male adult marrying a child (sec 9).[/li] [li] punishment for promoting
or permitting solemnization of marriage (sec 10, 11) [/li] [li] Marriage
of a minor child to be void in certain circumstances (sec 12). [/li] [li]
Power of court to issue injunction prohibiting child marriage (sec 13).
[/li] [li] Offences to be cognizable and non-bailable (sec. 15) [/li] [li]
Child marriage prohibition officers (sec. 16) [/li] [li] Power of state
Govt to make rules (sec . 19)[/li] [li] Amendment of Hindu Marriage
Act 1955 (sec. 20) [/li] [li] Repeal of child marriage Restraint Act,
1929(sec. 21)[/li] [/ol]
ofcourse it is in the name of the act that just prohibits people from
solemnizing the child marriage not completely & strictly imposed a
ban on it by making the marriage completely invalid, but this law is
proven to be weak, which sometimes disabled to fight with the
obnoxious culture of the country. Though child marriage officer has
sufficient powers to prevent solemnization of such marriage, still it
cannot be prevented always. In most of the cases the officer doesn’t
even know about it, maybe if registration of all marriages becomes
compulsory it might be easy to detect such kind of marriages at the
earliest.
The act has often been criticized as a lame horse which should have
been killed in the first place or a toothless tiger. One may ask if such
marriages are not prohibited and are valid marriages , what is the
motive of laying down the law of minimum age of marriage ?it could
be educative or just a judicial remedy to take injunction from the
court to save them after the exploitation of themselves.it being a
secular act, a piece of uniform civil code it would be applicable to all
the citizens of india.