Shakti Deb (KIIT Law School) has posted A Critical Analysis of Child Marriage Law in India with Special Reference to Hindu Law. The abstract follows.
Child Marriage is considered to be a violation of human rights, according to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls. In many parts of the world especially underdeveloped countries parents give consent to child marriages hoping that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families, the daughter is married off at an young age to relieve the family from her economic responsibilities.
Many factors are responsible for this practice, the most common ones are poverty, protection of girls, family honour and the provision of stability during unstable social periods, lack of opportunities for girls, lack of awareness about adverse health consequences another big problem is the lack of awareness of law and also inadequate implementation of the existing laws.
Prevention of Child Marriages is imperative not merely from the child and human rights perspective but also in the interest of meeting several national goals and Millennium Development Goals.
The word ‘Child Marriage’ is itself contradictory in itself as one would wonder how marriage and child could go together. But it is a sad reality that even to this day Child Marriages are being solemnized much to the chagrin of laws restraining such marriages.
Now that the legislature has come up with the Prohibition of Child Marriage Act, 2006 which had replaced the Child Marriage Restraint Act 1929. It becomes much more imperative to revisit the various laws passed by the legislature in the past and contextualizing it with respect to the new act intended to prohibit the practice of child marriage. This research paper basically deals with the proposed amendments in the new act and drawing a comparison with earlier laws as well as to analyze and predict the consequences of the new law on the Child Marriage. The approach here for the purpose of our study is critical and in some parts analytical supplemented by case laws.
The Hindu Marriage Act, 1955 lays down minimum age of eighteen for bride and twenty one for bridegroom as a condition for marriage ,however this has not been given as a ground for void or voidable marriage if such condition is violated. The only remedy provided under Hindu Marriage Act 1955 is under section 18. Hence after perusal of Child Marriage Restraint Act,1928 and Hindu Marriage Act, 1955 it becomes clear that the validity of the marriage is not affected in any way even if the marriage was in contravention of minimum age prescribed.
When the Hindu Marriage Act, 1955 brought out some revolutionary changes then it was argued that “Personal law in case of citizens of this country is essentially secular in character, and cannot be treated as a part of Hindu religion properly so called.” Reformers also urged that Hindu law was never “Sanatana” or static and had undergone changes from time to time. A question arises here that if that was the intention why no provision giving the party the option to opt out of marriage by getting it declared void was introduced when the same was provided for in the proposed Hindu Code Bill, 1948.
Regarding the “age of consent” the Indian Penal Code,1860 has recognized the minimum marriageable age for a girl to be 15 years. However at the same time marriageable age as prescribed under the Child Marriage Restraint Act,1929 is 18 years. Here it is clear that there is an ambiguity and contradiction as regards ‘the age of consent’ in the Hindu Marriage Act, 1955 and the Indian Penal Code,1860.
Through this research I want to find out the dual approach of Indian Law in regarding Child Marriage which declares such marriage to be voidable but in other sense such marriages are held to be a valid marriage. I had analysed the main legal issues related to child marriage and tried to find out how such marriages are held to be a valid marriage.