CHILD MARRIAGE

Early marriages were rampant in India and there was little concern for the plight and
suffering of girls on account of early marriage leading to early consummation, pre mature
childbirth, infant mortality and maternal mortality.

Rukhmabai case

She, married at 11 in 1874, refused to live with her husband and faced a court case. She
contested the demand, asserting that a marriage made when she couldn't consent shouldn't
bind her. Despite a court order, she stood firm, eventually settling with her husband after
paying Rs. 2000 to avoid forced reconciliation. Her case challenged traditional norms and
emphasized consent and women's agency.

Phulmonee Case

In 1890, eleven years old Phulmonee died of haemorrhage and excessive bleeding caused

by her twenty-nine years old husband who had forcible sexual intercourse with her. Since
Phulmonee was eleven years of age, her husband was exonerated of charges of marital rape
and murder. However, this case pushed the colonial government to raise the age of consent
for marriage of girls to twelve.

The first relevant legislation regulating marriage was the ‘Civil Marriage Act’ or the ‘Special
Marriage Act, 1872’, which laid down the minimum age of fourteen years. However, it
served little purpose as the said law was hardly used.

On February1, 1927 - Rai Saheb Harbilas Sarda introduced a Bill (popularly called the Sarda
Bill) to restrain the solemnization of child marriages among Hindus by declaring such
marriages invalid

International Covenants

Convention on the Rights of the Child (CRC) 1989

Article 1 – Definition of a child – A child is recognized as every human being under eighteen
years old unless national laws recognize an earlier age of majority.

Article 36 - State Parties shall protect the child against all other forms of exploitation
prejudicial to any aspects of the child’s welfare.
In Manish Singh v. State Govt. of NCT and Ors. (AIR 2006 Del. 37), the Delhi High court
reiterated that ‘marriages solemnized in contravention of age prescribed under S5(iii) of
Hindu Marriage Act,1955 are neither void nor voidable’. This is based on public policy and
the legislature was conscious of the fact that if marriages, performed in contravention of the
age restrictions, are made void or voidable, it could lead to serious consequences and
exploitation of women.

Supreme Court in Lila Gupta v Laxmi Narain (AIR 1978 SC 1351) held “...the CMRA was
enacted to carry forward the reformist movement of prohibiting child marriages and while it
made marriage in contravention of the provisions of the CMRA punishable, simultaneously it
did not render the marriage void. It would thus appear that voidness of marriage unless
statutorily provided for is not to be readily inferred.”

Pitfalls of Child Marriage Restrain Act,1929

The CMRA is silent about the legal effect of child marriages. The Act does not explicitly
state whether these underage marriages are “void” or “voidable”, therefore by inference such
underage marriages, once solemnized becomes legal.

Sec 9 of the CMRA provides that cognizance of an offence could be taken only within one
year from the date of solemnization of the marriage. After one year, the law itself
decriminalizes the solemnization of child marriage. Decriminalization of the offences after
one year from the date of the solemnization of the marriage does not promote the policy and
purpose of CMRA.

The Prohibition of Child Marriage Act, 2006

The main elements of the PCMA are Prevention, Protection and Prosecution.

(i) Prevention: The Act seeks to prevent child marriages by making solemnization,
abetment, promotion of marriage or negligently failing to prevent such marriages a
cognizable and a non-bailable offence. The law appoints certain authorities who
would prevent child marriages and ensure that the law is implemented.
Sec 16 appoints Child Marriage Prohibition Officers(CMPOs) in every state to stop
child marriages, protect the victims and prosecute the offenders of child marriages.
The CMPO has the responsibility to prevent solemnization of child marriages, to
advice and counsel residents of the locality against promoting, helping, aiding or
 allowing solemnization of marriages ,to create awareness about the negative
outcomes of child marriages and to sensitize people on child marriages.
(ii) Protection: The law seeks to protect victims of child marriage by making child
marriage voidable by giving choice to children in the marriage to seek annulment of
marriage and it also provides for maintenance and residence of the female
contracting parties. Sec 5 and 6 provides a legal status to all children born out of
child marriages and makes provisions for their custody and maintenance
respectively.
(iii) Prosecution of Offenders: Sec 9 of the Act provides punishments for males above
18 marrying a girl child; such males are punishable with rigorous imprisonment up
to two years and shall be liable to a fine up to Rs one lakh rupees. Sec 10 provides
the aforementioned punishment to anyone who performs, conducts, directs or abets
any child marriage. Sec 11(1) provides that no woman shall be imprisoned in this
regard.

Validity of Child Marriage

Voidable Marriage

• S.3 declares every child marriage whether solemnized before or after the
commencement of the Act as ‘voidable’ at the option of the party who was a child at
the time of the marriage.

Sec 3(3) allows for a petition to be filed declaring the marriage void within 2 years of the
child attaining majority under the Indian Majority Act, 1875 .This means that boy and/or girl
who was a minor at the time of his/her marriage has the option of approaching the courts to
declare the marriage null and void within two years of attaining majority. However, since a
girl is supposed to attain majority at the age of 18 years and a boy at the age of 21 years, the
girl can file a petition till she becomes 20 years of age and a boy till he becomes 23 years of
age.

Void Marriage

Sec 13 of PCMA allows a Judicial Magistrate of the first class or a Metropolitan Magistrate
to issue injunction orders to prevent solemnization of a prospective child marriage and any
‘child marriage’ solemnized in contravention of such an injunction or order, whether interim
or final, is void ab initio (S.14 PCMA).
(v) Restoration, Maintenance and Residence to the Female Contracting Party to Child
Marriage

The PCMA provides for the maintenance to the female contracting party until her
remarriage, (irrespective of the party who has approached the court for nullity) by the adult
male contracting party to the child marriage or his parent or guardian. The court may also
pass a suitable order providing for the residence of the female contracting party.

Rights of Children born out of Child Marriage

All children born are legitimate, including those born in void or voidable marriages. Upon
declaration of nullity of marriage, the courts are expected to give appropriate orders for
custody and maintenance respectively for any child born in such marriages, taking best
interests of the child into consideration.

THE GAPS IN THE ACT

 The PCMA declares child marriage as voidable which is based on an assumption that
girls on attaining majority will approach the courts for nullity of child marriage. It has
been seen that very often child marriages once solemnized and consummated, it is
very difficult (if not impossible) for girls to deny and step out of those marriages and
therefore, it is in keeping with this social reality that such marriages are not declared
void.
 The legislation is silent on the aspect of claiming maintenance by the minor under
S.125 of the Cr.P.C.
 The Act does not enable the minor himself or herself to get the child marriage
declared void on his own.
 The petition of nullity envisages the parties to the marriage to file such a petition, the
parent/guardian or friend have no ‘locus standi’ to file a petition on his or her behalf.
Allowing parents to file a petition on behalf of their minor child may potentially
create another social problem to the detriment of the girl child who was married.

VALIDITY OF CHILD MARRIAGE

• S.5 (iii) HMA,1955 stipulates minimum marriageable age as 18 years and 21 years for
Hindu females and males respectively. However, violation of this condition does not
render marriage as void or voidable.
 • A child marriage is voidable at the option of the party who was child at the time of
marriage under S. 3 PCMA and void under S.12 PCMA.

• In absence of an express ‘over riding’ clause in PCMA, coexistence of both the

legislations viz. HMA and PCMA stipulating contradictory legal consequences of
child marriage, have led to inconsistent judicial decisions regarding the legal status of
child marriage.

Jitendra Kumar Sharma v. State and Another

the validity of child marriage is to be judged from the standpoint of the personal laws that
govern the parties to the marriage. A marriage performed in derogation of S.5 (iii) of HMA,
remains a valid marriage provided the provisions of S.12 of PCMA are not violated.

A ‘void marriage’ within the meaning of S.11 HMA is void from its very inception i.e. void
ab initio and the court only makes a declaration to that effect. However, a ‘voidable marriage’
under S.12 of HMA is annulled by a decree of nullity on any one or more of the grounds
enumerated provided therein i.e. marriage remains valid till the court passes the decree of
nullity. Prior to PCMA, neither HMA nor CMRA declared a child marriage as void or
voidable, therefore courts also conveniently pronounced such marriages as valid.

T. Shiva Kumar v. The Inspector of Police, Thiruvallur Town Police Station,

Thiruvallur District and Others

S.2 (a) of PCMA is in pari materia with S.5 (iii) of HMA. A ‘void marriage’ within the
meaning of S.11 HMA is void from its very inception i.e. void ab initio and the court only
makes a declaration to that effect. However, a ‘voidable marriage’ under S.12 of HMA is
annulled by a decree of nullity on any one or more of the grounds enumerated provided
therein i.e. marriage remains valid till the court passes the decree of nullity. Prior to PCMA,
neither HMA nor CMRA declared a child marriage as void or voidable, therefore
courts also conveniently pronounced such marriages as valid.

PCMA a special law, whereas, the HMA is a general law regulating the marriages amongst
Hindus. Therefore, PCMA being a special law has an overriding effect over the HMA to the
extent of any inconsistency between these two legislations.

A child marriage though voidable, remains subsisting until it is annulled by a decree of

nullity passed by the court. S.3 (3) PCMA requires a petition for nullity to be filed by the
party (who was child at the time of marriage) to the child marriage, 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. If a petition for nullity is not filed within the limitation period, before the district
court under Section 3 (1) of the PCMA, then such a child marriage becomes a full-fledged
valid marriage.

The decree of nullity passed by the court under S.11 of the HMA is ‘declaratory’ in nature
i.e., a marriage which is void ab initio is only declared as void by a decree of nullity.
Whereas, the decree of nullity passed by the court under Section 12 of the HMA is
‘constitutive’ in nature i.e., the marriage is not void ab initio, rather it requires to be annulled
by a decree of nullity passed by the court. Similarly, under Section 3 of the PCMA also, the
court annuls the marriage by a decree of nullity. Thus, Section 12 of the HMA and Section
3(1) of the PCMA are statutes in pari materia. Therefore, unless there is a positive decree
passed by the competent court annulling the child marriage, the marriage shall be
subsisting.

All rights emanating from a valid marriage will accrue upon the victim of the voidable
marriage at whose option the child marriage can be annulled. Whereas at the same time a
voidable marriage would confer only limited rights upon the other spouse who will be
subject to all legal liabilities towards the other party to the marriage who was minor at the
time of marriage.

A voidable marriage is not invalid but it cannot be construed as a valid marriage stricto
sensu –

All rights emanating from a valid marriage will accrue upon the victim of the voidable
marriage at whose option the child marriage can be annulled. Whereas at the same time a
voidable marriage would confer only limited rights upon the other spouse who will be
subject to all legal liabilities towards the other party to the marriage who was minor at the
time of marriage.

When a marriage is ipso jure void, parties to such a marriage do not acquire the legal status of
husband and wife at all. Therefore, the legislature has consciously used the expressions
‘either party thereto against the other party’ in S. 11 HMA instead of the expressions
'husband' and 'wife'. Similarly, the omitting to use the expressions ‘husband’ and ‘wife’ in
section 12 HMA again manifests the legislative intent not to give the full status of the
husband and wife to the parties to a voidable marriage also.
Husband is the natural guardian of a married minor girl (S.6(c) HMGA,1956) i.e on such
marriage, the husband would replace the father and the mother from the natural guardianship.
Under Section 3 of the PCMA, since the marriage is voidable, the bridegroom of the female
child who had procured the marriage will not attain the status of the husband like that of any
other husband of a valid marriage and, therefore, under Section 6(c) of the Hindu Minority
and Guardianship Act, he cannot be the natural guardian.

When the law aims at eradicating the evil menace of child marriages, declaring the adult male
who marries a female child, as her natural guardian would only defeat the very object of the
Act. Thus, S. 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by
the PCMA.

Another inconsistency is that only the female party to the child marriage can dissolve her
marriage under S.13(2)(iv) of HMA, by repudiating the marriage before attaining eighteen
years of age, whereas under S.3 PCMA, either party who was child at the time of marriage
can seek annulment of marriage. Also, a female party to the child marriage can seek nullity
of marriage during her minority as well as within two years of attaining the age of majority
i.e., till she attains the age of 20 years.

The Amendment Bill seeks to amend the PCMA, 2006 and proposes to introduce the
following changes-

a) substitute the definition of child by the words “child means a person who has not
completed the age of eighteen years” for the words “child means a male, who has not
completed twenty-one years of age, and a female, who has not completed eighteen years of
age” under S. 2(a) of PCMA,2006 .

child marriage below sixteen years of age be declared as a void marriage and a child marriage
solemnized between 16 -18 years as voidable marriage, whereas a child marriage is declared
as voidable under PCMA,2006.

restrict the age of filing petition for annulling a voidable child marriage till the child filing the
petition attain the age of twenty years;

apply the provisions of the PCMA to void marriages also;