At present, child marriages in India — between a man under 21 years and a woman under 18 —are merely voidable at the behest of the contracting parties.

In a decision that is set to have a major impact on ending child marriages in India, the Ministry of Women and Child Development (WCD) is set to move the Cabinet to make child marriages void.

At present, child marriages in India — between a man under 21 years and a woman under 18 —are merely voidable at the behest of the contracting parties.

The Prohibition of Child Marriage Act (PCMA), 2006, does not invalidate child marriage itself. It only gives the child bride and the groom the option of annulling it if a case is filed in a district court by either of the two contracting parties within two years of becoming adult, or through a guardian in case they are still minors.

“We have circulated a draft Cabinet note that proposes to make child marriage ‘void ab initio’. The note seeks to amend Section 3 of PCMA, under which currently child marriage is only voidable at the option of contracting parties,” an official from WCD Ministry said.

The move, if approved, would correct a glaring anomaly in the law that allowed child marriages to continue despite a Supreme Court judgment of October 2017 ruling that sex with a minor wife amounts to rape, as “under no circumstance can a child below 18 years give consent, express or implied, for sexual intercourse”. Since a child bride lacks the agency to file a criminal complaint of rape against her husband, the only way to ensure that the SC ruling has bearing on ground was through amending the PCMA so as to invalidate child marriage entirely.

A 2014 UNICEF report puts India at sixth spot, among the top-10 countries, regarding high rates of child marriage among women. The report showed that for women in the poorest quintile (20 per cent), the median age at first marriage was 15.4 years. It was found to be 19.7 years for those in the richest quintile.

A report by the National Commission for Protection of Child Rights, using 2011 Census data, showed that 12 million child marriages have been recorded in the country, 7 million boys under 21 years and 5 million girls under 18. This, despite the fact that PCMA prescribes imprisonment up to two years to the groom — above 18 — as also to anyone who performs or abets such a marriage.

The proposed amendment to PCMA will go a long way in ending child marriage in India, and corresponding issues such as early pregnancies, sexual violence, and the denial of right to education and bodily autonomy. However, it still leaves unresolved the issue of marriages contracted under personal laws, unless such laws are also amended.

For instance, the Hindu Marriage Act, 1955, (for Hindus, Buddhists, Sikhs, Jains) and the Dissolution of Muslim Marriages Act, 1939, do not still hold child marriages to be void. Both laws merely allow a girl to seek dissolution of her marriage only if she was married off before the age of 15 years, and she has to apply for dissolution before she is 18 .

Muslim personal law allows girls who have attained puberty, considered to be 15 years, to get married. Both the Indian Christian Marriage Act and the Hindu Marriage Act are lenient enough to allow child marriage to persist.

According to the National Family Health Survey-4 (2015-16), 26 per cent of women in India between 20 and 24 years was married off as a minor. Yet, National Crime Records Bureau data show that in 2016, only 326 cases were registered under the PCMA in the entire country.

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