Law and Social Transformation

VISAKH V SUGATHAN
2ND LL.M

"മാറ്റുവിൻ ചട്ടങ്ങളെ സ്വയമല്ലെങ്കിൽ മാറ്റുമതുകളീ നിങ്ങളേ താൻ1"

Introduction
Dicey traced the interconnection between law and the evolution of public opinion
and social policy through the nineteenth century. He showed how a liberal state,
under the influence of Bentham and his followers, had developed the legislative
machinery to remove the many inequalities and archaic formalities of an
antiquated legal system, thereby forging the weapon new political philosophies
could use as an instrument of social reform. Thus dicey- who through his law of
constitution greatly retarded and complicated the development of administrative
law, vital though it is to the functioning of the modern state- saw the growing
importance of statutory legislation as an instrument of legal and social change 2.
Laws are rules and regulations laid down by the ruling or superior authority to
regulate people's actions. Social change can profoundly impact the development
and reform of laws. As societies evolve and values change, the legal system often
adapts to reflect these shifts. The law plays a crucial role in facilitating and
regulating social change. Depending on how it is applied and interpreted, it can
promote and hinder social change. So, we can't stick to a single concept of
whether law influences social change or social change impacts law 3.
Sometimes, law influences social changes; when we go through the famous
judgement of the Indian Young Lawyers’ Association v State of Kerala 4, social
changes influence law: In a fast-moving society, law cannot be static. Law also
1
‘"Poem by Kumaranasan (Malayalam) in 1970’.
2
AV Dicey, Introduction to the Law of Constitution (1885).
3
W FRIEDMANN, LAW AND SOCIAL CHANGE, vol Second Indian Reprint 2012.
4
Indian Young Lawyers’ Association v State of Kerala [2018] Supreme Court Of India WP (C) 373/2006, SCC
Observer.
needs to be changed. These are not parallel; somewhere, it is similar, and
somewhere, they are perpendicular. In A.K Gopalan v. State of Madras, 5 Justice
Krishna Iyer states that “man is desired of doing so many things in a society, but in
a community, he needs to control his feelings to respect the rights of others.
Most women's issues were seen in the 19th century, which came under the
spotlight, and reforms began. During the mid-colonial era, efforts were being
made to counter the growing influence of European culture in India. So, this paper
tries to find out how the law influenced social change during the 19 th century by
imposing the Child Marriage Restraint Act of 1929.

Law as a social change on child marriage.

Who could picture a five-year-old girl getting married? Your skin may start to
sweat just thinking about it. Sadly, such heinous things have happened. In the
past, there were a lot of terrible and unneeded reasons why a girl child might be
married off. The girl is not educated and is made to assimilate into a household
she knows nothing about after getting married. She then has to deal with an early
pregnancy issue. How can she serve as a mother when she is still illiterate,
uneducated, and lacks fundamental morals and values? The scenario is much
more likely given how recreational sex was at the time.
Child marriage in India has been a perennial problem. Girls are the primary victims
of this practice. Child marriage has a lasting impact on them. They are deprived of
autonomy and face many other issues, such as early pregnancies(and health
problems arising), illiteracy, social-financial dependence, etc. Hence, the Child
Marriage Restraint Act was enacted in 1929 to avoid this. This Act laid down the
legal marriage age for men (21 years) and women (18 years).
So, this paper examines the changes in the concept of child marriage.

History of Child Marriage.

5
Gopalan v State of Madras, Supreme Court Of India AIR 1950 SC 27, AILL INDIA RECORD.
Child marriage is the practice where underage kids, i.e., girls below the age of 18
and boys below the age of 21, get married with or without their consent (mostly
without). This is usually a forced affair where parents, due to some difficulty, get
their children married. This practice has been prevalent in India since the pre-
colonial era when young women did not have the same status as men and were
often considered a burden to the family, as a result of which, they were forced to
marry.
Lower-caste families used to get tempted to marry their daughters to an upper
caste boy in return for their own financial and personal gains. Girls marrying at the
age of 8 or 9 was typical. Another form of marriage that was prevalent during
these days was parents fixing their child’s wedding at a future date.
The Western mindset came into the picture with the advent of the Europeans.
However, the Europeans used this as an agenda to expand their dominance,
influencing the people's minds that it was because of the new changes that were
taking place. Indian social reformers like Raja Ram Mohan Roy defended Indian
culture. Due to their contribution, women actively participated in the National
Freedom Struggle and helped India gain independence. However, even after
attaining independence, these social evils still prevailed on a large scale.
It was the British era in India when the need to end this practice of child marriage
was felt the most. But Indians were already dealing with pushing the British away
from the country, so pressing for the need to end child marriages seemed
daunting. The death of an 11-year-old girl child after getting raped by her adult
husband was the trigger. This incident was one of the factors that led to a call for
regulating child marriage in India. However, as the British ruled the country, they
were more concerned about their interests than listening to us Indians. Hence,
despite staunch opposition from the British and after rejecting several Bills and
memorandums, Rai Sahib Haribilas Sharda introduced his Hindu Child Marriage
Bill in 1927. This Bill was referred to a committee known as the Joshi Committee in
1929. On the recommendations of this Committee, the Bill was passed by the
Imperial Legislative Council of India in 1929. This Act was known as the Child
Marriage Restraint Act and the Sharda Act of 1929. The main feature of this Act
was to increase the legal marriage age. For the boys, it was 18 years, while for the
girls, it was 14. Further, the punishment for a male adult above 21 years of age
marrying a minor child was three months of imprisonment and a fine, whereas,
for a male adult below 21 years, the punishment was 15 days and a penalty up to
Rs. 1000.
Various bills addressing the question of child marriage were introduced in the
Indian legislature and were defeated.
1) The All-Indian Women Conference.
2) Women Indian Association
3) National Council of Women in India.
Through their members, they developed and articulated the arguments favour
raising the age for marriage and consent before the Joshi committee. Muslim
woman presented their views in favour of the Joshi committee, although they
would face opposition from ulemas.
Joshi committee presented its report on 20 th June 1929, passed by the imperia
legislature council on 28th September 1929, and became law on 1st April 1930 after
the approval from Lord Irving.

Objective Of The Child Marriage Restrain Act

 To eradicate the evil of child marriage
 Danger to the life and health of the female child, who could not withstand
the stress and strain of married life.
 To avoid the early death of mothers(minors).
Approximately one in four girls in India is married before she reaches the age of
18 years. It is well known that when girls are married at an early age, they have
less opportunity to mature physically and psychologically. They have not been
prepared to deal with the challenges of married life. They experience violence,
sexual exploitation or domestic servitude by their husband and in-laws. They
cannot defend themselves against physical and mental abuse in the marital home.
Further, child marriages have a telling impact on reproductive health care,
nutrition, infant care and safe sex. Women endure pregnancy at risk of repeated
miscarriages and delivery complications and give birth to underweight babies.

Significance Of The Child Marriage Restrain Act

The Child Marriage Act was India's first social reform issue by organised women
groups. The groups pressured many politicians, holding placards and shouting
slogans. This legislation would show the world that India is serious about social
transformation. Although this was a victory for the women's movement in India,
the act remained a dead letter during the colonial period of British rule in India.
As per Jawarharlal Nehru, the British colonial government did nothing to
propagate awareness, especially in small towns and villages in India. In his
autobiography, Nehru stated that this was mainly because the British didn’t want
to earn the displeasure of command elements among the Hindus and Muslims. In
1930, these communal groups were the only parties in India supporting British
rules. The British government did not wish it to lose its support. Hence, they
avoided implementing this and similar social reforms and focused on preventing
the Indian freedom movement.

Limitations of this Act

 No court can take cognizance of any offence under this Act after the expiry
of one year from the date the violation is alleged to have been committed.
Later on, amendment girl was fixed with 18 and boy 21 by the implication of
new legislation
 Punishment under the Act was rigorous imprisonment, which may extend
to two years and shall be liable to a fine of one lakh rupees.
 Further, this Act does not altogether abolish the practice of child marriage.
The Act nowhere mentions child marriage as void. It only makes child
marriage voidable after it is declared so. Till then, the practice is valid.
 The Act further violates the child rights provisions under Article 21 of the
Indian Constitution. Also, it violates Article 16(2) of the Convention on
Elimination of Discrimination against Women (CEDAW), which states that a
child marriage shall not have legal effect.
Later, in 1978, an Amendment to this Act was introduced. The Amendment was
passed to increase the age of marriage for boys to 21 years and girls to 18 years.
This Act was the first social reform in India dealing with the issue of child
marriage. Hence, this Act looked promising.

Prohibition of Child Marriage Act, 2006

The Child Marriage Restraint Act of 1929 was the first of many reforms; however,
this Act never really flourished as it was during the British Raj, so no one bothered
to create awareness about it. Hence, this Act was repealed.
The Supreme Court 2006 asked the Law Commission to help with issues
concerning child marriages in India. Before the Law Commission, the main task
was to recommend a single uniform definition of a child to decide the legal age.
The Law Commission, in its 205th Report 2008, came up with specific
recommendations. Child marriage below 18 years shall be prohibited; below 16
years, the marriage shall be void, and it is mandatory to register the marriage.
The Supreme Court, apart from requesting the Law Commission for specific
recommendations, came up with a new legislation.

Social Change That Took Place After The Introduction Of Prohibition Of

Child Marriage Act 2006

 Firstly, the Act prohibits child marriages in the whole country.

 Section 2(a) of the Act defines a child as a boy who has not completed the
age of 21 years and a girl who has not met the age of 18.
 Section 2(b) states that child marriage is a kind of marriage in which either
of the parties is a child.
 Section 3 states that a child marriage shall be voidable at the option of the
party who was a child at the time of the marriage.
 Maintenance and residence of the girl child till she remarries from the
male’s side.
  Punishment provisions have been increased.
 The punishment for child marriage for a boy below 18 years is two years of
jail time and a fine of Rs. 1 lakh.
 The act also introduces Child Marriage Prohibition officers in the state to
prevent such marriages.
 The Act has maintained the principle of gender equality and granted the
right to get out of a forced marriage to a male child.
The PCA of 2006 added a clause allowing state governments to appoint officers to
prevent child marriage. These officers are authorised to offer victims of child
marriages legal assistance and other required assistance. Additionally, the CMPO
can present such victims before a Judicial Magistrate of the First Class or the Child
Welfare Committee. The kid helpline number is 1098, and the victims can also
report their crimes to the local police station.
The petition to end a child marriage can be filed in court only by the girl or boy
below 18 years old at the time of marriage. However, a guardian, with the help
of CMPO, can file a petition on behalf of the minor child.

This Act has little influence outside of lengthening the penalties for child
marriages. The union of a minor is nevertheless valid. It is voidable at the child's
discretion, which burdens the minor. Parents frequently plan for their children to
marry, so why would they permit their child to rebel and declare the union null
and void? The 1929 Act also mandated that a complaint against child marriage be
filed before a sanction was given. A lot is different about this Act. To make a child
marriage voidable, the case must be reported.

Prohibition of Child Marriage Amendment Bill, 2021.

After 15 years, a provision was introduced to amend the PCA 2006. Seeing the rise
in child marriage cases despite the PCA, the government decided to amend
specific requirements of the Act. A 10-member NITI AAYOG task force put forth
specific recommendations to look into the legal age of marriage on critical
parameters like infant mortality ratio, child sex ratio, fertility ratio of children, etc.
Owing to this, the Prohibition of Child Marriage Amendment Bill of 2021 was
introduced. Key features of this Amendment Bill are:-

 The definition of a child has been changed to a male or female who has
not completed 21 years of age.
 The duration for filing a petition to declare child marriage invalid has
increased from two to five years.
 The Bill further states that the existing enactments like the Indian
Christian Marriage Act of 1872, the Parsi Marriage and Divorce Act 1936,
the Muslim Personal Law (Shariat) Application Act 1937, the Special
Marriage Act of 1954, the Hindu Marriage Act of 1955, and the Foreign
Marriage Act of 1969, despite talking about the age of marriage, do not
provide for a uniform age.
Hence, this Bill seeks to promote gender equality and aims at reducing
miscarriages, early pregnancies, etc.

Conclusion

The main of the Child Marriage Restraint Act was to reduce the evil of child
marriage, the Danger to the life and health of the female child who could not
withstand the stress and strain of married life, and To avoid the early death of
mothers(minor). Although the Britishers enacted the Act, they were not on a path
to implement such legislation; at that time, Indian society was in a hatred path
towards the Britishers, and if they implement this legislation. So if they introduced
this legislation ultimately, local rulers, upper castes in the society, priests, and
Ulemas would object to these and again, it became a burden to the Britishers.

Later, India became a signatory to the International Convention for Women and
Children's Rights, and the interference of the apex court, the new legislation “The
Child Marriage Prohibition Act, was introduced in 2006, which introduced a drastic
social change in Indian society.
Bibliography

Dicey AV, Introduction to the Law of Constitution (1885)

FRIEDMANN W, LAW AND SOCIAL CHANGE, vol Second Indian Reprint 2012

‘"Poem by Kumaranasan (Malayalam) in 1970’

Gopalan v State of Madras, Supreme Court Of India AIR 1950 SC 27, ALL INDIA
RECORD

Indian Young Lawyers’ Association v State of Kerala [2018] Supreme Court Of

India WP (C) 373/2006, SCC Observer