I am highly indebted to my Professor who gave me such an interesting project and who helped me in every way possible to complete the project. I owe my deepest sense of gratitude to my parents who influenced me and helped me to complete this project. I would also like to thank the library staff who helped me finding the reference texts.
Child marriage in India, according to Indian law, is a marriage where either the woman is below age 18 or the man is below age 21. Most child marriages involve underage women, many of whom are in poor socio-economic conditions. Child marriages are prevalent in India. Estimates vary widely between sources as to the extent and scale of child marriages. The International Centre for Research on Women-UNICEF publications have estimated India’s child marriage rate to be 47% from small sample surveys of 1998, while the United Nations reports it to be 30% in 2005. The Census of India has counted and reported married women by age, with proportion of females in child marriage falling in each 10 year census period since 1981. In its 2001 census report, India stated zero married girls below age 10, 1.4 million married girls out of 59.2 million girls in the age 10-14, and 11.3 million married girls out of 46.3 million girls in the age 15-19 (which includes 18-19 age groups).
Since 2001, child marriage rates in India have fallen another 46%, reaching an overall nationwide average 7% child marriage rates by 2009. Jharkhand is the state with highest child marriage rates in India (14.1%), while Kerala is the only state where child marriage rates have increased in recent years, particularly in its Muslim community. Rural rates of child marriages were three times higher than urban India rates in 2009. Child marriage was outlawed in 1929, under Indian law. However, in the British colonial times, the legal minimum age of marriage was set at 15 for girls and 18 for boys. Under protests from Muslim organizations in the undivided British India, a personal law Shariat Act was passed in 1937 that allowed child marriages with consent from girl’s guardian. After independence and adoption of Indian constitution in 1950, the child marriage act has undergone several revisions.
The minimum legal age for marriage, since 1978, has been 18 for women and 21 for men. The child marriage prevention laws have been challenged in Indian courts, with some Muslim Indian organizations seeking no minimum age and that the age matter is left to their personal law. Child marriage is an active political subject as well as a subject of continuing cases under review in the highest courts of India. The children are forced into the institution of marriage without knowing about its significance in the long run. Though parents are of the opinion that they involve their children in such rituals because it is an age old custom and it will also secure the future of their children but the reality is not so. Though in some cases parents believe in such superstitions and dogmas in other cases greed is the most significant factor.
How can a girl’s future become secured if she gets married to a man who is 60 years of age while the girl herself is barely 14 or 15? Only their parent’s future will be secured with the amount of money the man and his family pay in return of the girl. This heinous crime cannot be termed as marriage it is simply selling of the girl child. The man will molest her at a tender age and at the same time he will kiss death pretty soon. The girl will end up being so horrified with the custom of marriage that she will dare not enter the institution again. A whole future filled with frustration and anger will result thereby. The sad news is that the institution of child marriage is still present in India in a number of villages and districts. Though the government has taken strict actions and child marriage has been declared as a big crime, still this practise is prevalent till today.
Definition of child marriage
The definition of child marriage was last updated by India with its The Prohibition of Child Marriage Act of 2006, which applies only (a) to Hindus, Christians, Jains, Buddhists and those who are non-Muslims of India, and (b) outside the state of Jammu and Kashmir. For Muslims of India, child marriage definition and regulations based on Sharia and Nikah has been claimed as a personal law subject. For all others, The Prohibition of Child Marriage Act of 2006 defines “child marriage” means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person – if a male, it is 21 years of age, and if a female, 18 years of age.
UNICEF defines child marriage as a formal marriage or informal union before 18 years of age. UN Women has proposed that child marriage be defined as a forced marriage because they believe children under age 18 are incapable of giving a legally valid consent.
The small sample surveys have different methods of estimating overall child marriages in India, some using multi-year basis data. For example, NFHS-3 data for 2005 mentioned in above table, used a survey of women aged 20–24, where they were asked if they were married before they were 18. The NFHS-3 also surveyed older women, up to the age of 49, asking the same question. The survey found that many more 40-49 were married before they turned 18, than 20-24 age women who were interviewed. In 1970s, the minimum legal age of marriage, in India, for women was 15.
The states with highest observed marriage rates for under-18 girls in 2009, according to a Registrar General of India report, were Jharkhand (14.1%), West Bengal (13.6%), Bihar (9.3%), Uttar Pradesh (8.9%) and Assam (8.8%). According to this report, despite sharp reductions in child marriage rates since 1991, still 7% of women passing the age of 18 in India were married as of 2009. UNICEF India has played a significant role in highlighting the Indian child marriage rate prevalence data from its 1990s study. According to 2011 nationwide census of India, the average age of marriage for women in India is 21. In the age group 15-19, 69.6% of all women surveyed in India had never been married.
WHY DOES CHILD MARRIAGE HAPPEN?
Child marriage is a traditional practice that in many places happens simply because it has happened for generations – and straying from tradition could mean exclusion from the community. In study sites, pressure to abide by societal norms was also cited as a reason for the persistence of early marriage. While these norms were clearly internalized by parents, neighbours and others in the community also exerted overt pressure on parents to get their daughters married at a young age. Such pressure included enquiring from parents why they were not getting their daughters married, passing unpleasant comments about the unmarried girl and her parents or bringing them proposals for marriage. But as Graça Machel, widow of Nelson Mandela, says, traditions are made by people – we can change them.
Institution of patriarchy
In many communities where child marriage is practised, girls are not valued as much as boys – they are seen as a burden. The challenge will be to change parents’ attitudes and emphasise that girls who avoid early marriage and stay in school will likely be able to make a greater contribution to their family and their community in the long term. It is important to view the phenomenon of child marriage within the context of patriarchy. “Patriarchy has a strong hold on Indian Society. It operates at all levels on the basis of sex, age and caste and contributes in lowering the status of women in every possible manner.
Stratification and differentiation on the basis of gender are integral features of Patriarchy in India” Gender differences are reflected in the sexual division of labour between the productive and reproductive activities. The collective effect of patriarchy reinforces the subordination of women in the name of care, protection and welfare and makes them dependent on men throughout their lives. Child marriages for women, comparative seniority of husbands, and patrilocal residence upon marriage are thus the attributes of the patriarchal institution.
Poverty (Dowry & economic determinants)
Where poverty is acute, giving a daughter in marriage allows parents to reduce family expenses by ensuring they have one less person to feed, clothe and educate. In communities where a dowry or ‘bride price’ is paid, it is often welcome income for poor families; in those where the bride’s family pay the groom a dowry, they often have to pay less money if the bride is young and uneducated. Apart from religious considerations, the other reason for child marriages among the higher caste is dowry. Traditionally, dowry was not prevalent among lower castes, most of whom followed the opposite custom of bride price.
Most Brahmans also did not practice dowry, but in recent years this custom has extended itself among both higher and some lower castes. Even non-Hindu communities have not escaped from its evil influence. “It has been found that quantum of dowry increases with the age and educational level of the perspective brides. Some upper castes parents prefer to keep their daughters uneducated and marry them off young to avoid heavy dowry demand” Parents who are poor and have more than one daughter often arrange the marriage of all their daughters collectively, in one ceremony, to reduce marriage costs. To avoid more expenditure by marrying her at a later age, parents prefer to marry her off at an earlier age. Therefore, the system of dowry perpetuates child marriages.
Many parents marry off their daughters young because they feel it is in her best interest, often to ensure her safety in areas where girls are at high risk of physical or sexual assault. Parents of a child entering into a child marriage are often poor and use the marriage as a way to make her future better, especially in areas with little economic opportunities. Dowry is a practice in India where the bride’s family transfers wealth to the groom; in many cases, it is a demand and condition of marriage from the groom’s family. Dowry is found among all religious faiths in India, and the amount of dowry demanded and given by the bride’s family has been correlated to the age of girl. Nagi, in 1993, suggested that the practice of dowry creates a fear and pressure to avoid late marriages, and encourages early marriage.
Poverty in India has been cited as a cause of early marriages. Child marriages of girls are a way out of desperate economic conditions, and way to reduce the expenses of a poor family. In some parts of India, the existence of personal laws for Muslims is a cause of child marriages. For example, in Kerala, 3400 girls of 13-18 ages were married in 2012 in the district of Malappuram. Of these, 2800 were Muslim (82%). Efforts to stop this practice with law enforcement have been protested and challenged in courts by Indian Union Muslim League and other Islamic organizations, with the petition that setting a minimum age for marriage of Muslim girls challenges their religious rights.
What is the impact of Child Marriage?
Child marriage has lasting consequences on girls, which last well beyond adolescence. Women married in their teens or earlier, struggle with the health effects of getting pregnant too young and too often. Early marriages followed by teen pregnancy also significantly increase birth complications and social isolation. In poor countries, early pregnancy limits or eliminates their education options. This affects their economic independence. Girls in child marriages are more likely to suffer from domestic violence, child sexual abuse, and marital rape.
Child marriage often means the end of education for girls. It is closely linked to girls dropping out of school, denying children their right to the education they need for their personal development, their preparation for adulthood, and their ability to contribute to their family and community. Out of school and in marriage, child brides are denied the ability to learn the skills that could help them earn an income and lift them and their children out of poverty. Married girls who would like to continue schooling may be both practically and legally excluded from doing so. Child marriage is a major barrier to progress on girls’ education. Over sixty per cent of child brides in developing countries have had no formal education. Many girls aren’t in education because schools are inaccessible or expensive, because of the traditional role girls are expected to play in the household, or simply because parents don’t see the value of education for their daughters.
Child marriage and a lack of education for girls are both underpinned by girls’ low status. Little or no schooling strongly correlates with being married at a young age. Conversely, attending school and having higher levels of education protect girls from the possibility of early marriage. In many countries, educating girls often is less of a priority than educating boys. When a woman’s most important role is considered to be that of a wife, mother and homemaker, schooling girls and preparing them for the jobs may be given short shrift. And even when poor families want to send their daughters to school, they often lack access to nearby, quality schools and the ability to pay school fees. It is usually safer and economically more rewarding to spend limited resources on educating sons than daughters. This boxes families into early marriage as the only viable option for girls.
Child marriage can have devastating consequences for a girl’s health. It encourages the initiation of sexual activity at an age when girls’ bodies are still developing and when they know little about their sexual and reproductive health. Neither physically or emotionally ready to give birth, child brides face higher risk of death in childbirth and are particularly vulnerable to pregnancy-related injuries such as obstetric fistula. It is extremely difficult for child brides to assert their wishes and needs to their usually older husbands, particularly when it comes to negotiating safe sexual practices and the use of family planning methods.
Child brides often face intense social pressure to prove their fertility. When a girl marries as a child, the health of her children suffers too. The children of child brides are at substantially greater risk of perinatal infant mortality and morbidity, and stillbirths and new-born deaths are 50% higher in mothers younger than 20 years than in women who give birth later. There is little doubt that reducing child marriage will help to ensure more children survive into adulthood.
Poverty is one of the main drivers of child marriage. Child brides are more likely to be poor and to remain poor. Where poverty is acute, giving a daughter in marriage allows parents to reduce family expenses by ensuring they have one less person to feed, clothe and educate. In communities where economic transactions are integral to the marriage process, a dowry or ‘bride price’ is often welcome income for poor families. Child marriage traps girls and their families in a cycle of poverty. Girls who marry young do not receive the educational and economic opportunities that help lift them and their families out of poverty and their children are more likely to undergo the same fate.
Married teenage girls with low levels of education suffer greater risk of social isolation, domestic violence and sexual violence from their spouses, than more educated women who marry as adults. Domestic and sexual violence from their husbands has lifelong, devastating mental health consequences for young girls because they are at a formative stage of psychological development. Child brides, particularly in situations such as vani, also face social isolation, emotional abuse and discrimination in the homes of their husbands and in-laws.
Child marriages impact a range of women’s rights such as access to education, freedom of movement, freedom from violence, reproductive rights, and the right to consensual marriage. The consequence of these violations impacts not only the woman, but her children and broader society.
Trafficking and sale of girls
Child marriage also results in the trafficking of children for various purposes, including prostitution, labour and exploitation. Young girls are lured/forced into marriage for the purpose of selling them to other states. Rajib Haldar, Secretary, Prayas, says: ‘Trafficking of married girls’ is rampant in Rajasthan, Uttar Pradesh, Chhattisgarh and even Kerala.”. Also, a survey of victims of trafficking revealed that 71.8 per cent of the respondents were married when they were children (i.e., when they were less than 18 years of age). This suggests that child marriage is among the key factors that make women and children vulnerable to trafficking
Laws against child marriage
The Child Marriage Restraint Act of 1929
The Child Marriage Restraint Act, also called the Sarda Act, was a law to restrict the practice of child marriage. It was enacted on 1 April 1930, extended across the whole nation, with the exceptions of the states of Jammu and Kashmir, and applied to every Indian citizen. Its goal was to eliminate the dangers placed on young girls who could not handle the stress of married life and avoid early deaths. This Act defined a male child as 21 years or younger, a female child as 18 years or younger, and a minor as a child of either sex 18 years or younger. The punishment for a male between 18 and 21 years marrying a child became imprisonment of up to 15 days, a fine of 1,000 rupees, or both.
The punishment for a male above 21 years of age became imprisonment of up to three months and a possible fine. The punishment for anyone who performed or directed a child marriage ceremony became imprisonment of up to three months and a possible fine, unless he could prove the marriage he performed was not a child marriage. The punishment for a parent or guardian of a child taking place in the marriage became imprisonment of up to three months or a possible fine. It was amended in 1940 and 1978 to continue rising the ages of male and female children.
The Prohibition of Child Marriage Act, 2006
In response to the plea (Writ Petition (C) 212/2003) of the Forum for Fact-finding Documentation and Advocacy at the Supreme Court, the Government of India brought the Prohibition of Child Marriage Act (PCMA) in 2006, and it came into effect on 1 November 2007 to address and fix the shortcomings of the Child Marriage Restraint Act. The change in name was meant to reflect the prevention and prohibition of child marriage, rather than restraining it. The previous Act also made it difficult and time consuming to act against child marriages and did not focus on authorities as possible figures for preventing the marriages. This Act kept the ages of adult males and females the same but made some significant changes to further protect the children.
Boys and girls forced into child marriages as minors have the option of voiding their marriage up to two years after reaching adulthood, and in certain circumstances, marriages of minors can be null and void before they reach adulthood. All valuables, money, and gifts must be returned if the marriage is nullified, and the girl must be provided with a place of residency until she marries or becomes an adult. Children born from child marriages are considered legitimate, and the courts are expected to give parental custody with the children’s best interests in mind. Any male over 18 years of age who enters into a marriage with a minor or anyone who directs or conducts a child marriage ceremony can be punished with up to two years of imprisonment or a fine.
Muslim organizations of India have long argued that Indian laws, passed by its parliament, such as the 2006 child marriage law do not apply to Muslims, because marriage is a personal law subject. The Delhi High Court, as well as other state high courts of India, have disagreed. The Delhi Court, for example, ruled that Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs each and every citizen of India. The ruling stated that an under-age marriage, where either the man or woman is over 16 years old, would not be a void marriage but voidable one, which would become valid if no steps are taken by such court has option to order otherwise. In case either of the parties is less than 16 years old, the marriage is void, given the age of consent is 16 in India, sex with minors under the age of 16 is a statutory crime under Section 376 of Indian Penal Code.
Legal Action on Legal Confusion
There is a standing legal confusion as to Marital Rape within prohibited Child Marriages in India. Marital rape per se is not a crime in India; but the position with regard to children is confusing. While the exception under the criminal law (section 375, Indian Penal Code, 1860) applicable to adults puts an exception and allows marital rape of a girl child between the age of 15–18 years by her husband; another new and progressive legislation Protection of Children from Sexual Offences Act, 2012 disallows any such sexual relationships and puts such crimes with marriages as an aggravated offense. A Public Interest Litigation filled by Independent Thought – www.ithought.in an organization working on child rights law, is being heard in the Hon’ble Supreme Court of India for declaring the exception allowing marital rape within prohibited child marriages as unconstitutional; Independent Thought vs. Union of India [W.P(civil) 382 of 2013].
The Convention on the Elimination of All Forms of Discrimination against Women, commonly known as CEDAW, is an international bill attempting to end discrimination against women. Article 16, Marriage and Family Life, states that all women, as well as men, have the right to choose their spouse, to have the same responsibilities, and to decide on how many children and the spacing between them. This convention states that child marriage should not have a legal effect, all action must be taken to enforce a minimum age, and that all marriages must be put into an official registry. India signed the convention on 30 July 1980 but made the declaration that, because of the nation’s size and amount of people, it’s impractical to have a registration of marriages.
Child marriage is an age old practice that is still prevalent in India, especially in the state of Rajasthan, Uttar Pradesh, Madhya Pradesh, and Haryana till today. The development and modernization of India and with the implementation of the strict rules of marriageable age to be 18 for girls and 21 for boys has resulted in a considerable downfall in the number of child marriages. Still there is a lack of awareness in small villages where the illegal practice of Child marriage is prevalent. The legal age for marriage in India is 18 years for girls and 21 for boys. Any marriage of a person younger than this is banned under the Child Marriage Prevention Act, 1929. It is an incontrovertible fact that a large number of child marriages are performed in violation of the existing provisions of the law, particularly on ‘Akha Teej’ or ‘Akshaya Tritiya’. When child marriage takes place, the children are too young to understand what marriage means. It is true that there is a large body of social opinion and customary practice that sanctions early marriage. It is a religious tradition in many places in India and therefore difficult to change.
The dire consequences that follow child marriage, particularly for girls are – the child’s education is sacrificed, girls become more vulnerable to domestic violence and due to early pregnancies their health gets much worse. The babies born to girls under 16 are more likely to die during their first year of life. UNICEF describes child marriage as a “gross violation of all categories of child rights.” It is a social evil that has degraded the status of girl child in our society. Child marriage is against the law but the marriage itself is valid once performed, even if the child was as young as 5 years at the time. Police cannot make arrests without applying for a Magistrate’s order. The present provision for simple imprisonment for 3 months and a fine has proved totally inadequate. To stop this menace, the law must make registration of all marriages mandatory.
Stringency of punishment is the next important element in the strategy to tackle this menace. The appointment of anti-child marriage officers in every State, and making it a law that anyone who attends a child marriage has to report it, would help in checking child marriage What is required on the part of the citizens and the government in general is to join hands and raise a movement so wide that every parent could only visualize themselves locked up in jails even if they think of committing such a crime. It is essential on the part of the citizens to remain active. People who witness child marriages should be determined enough to launch a police complaint against the parents of both the bride and groom. It is essential on the part of the government to award the people who inform about the conduction of child marriages and also to enforce harder laws to discourage this practice. Thus by helping two children from entering into such a horrendous affair, you are assuring a brighter future not only for these children but for India as a whole.
1) Jaya Sagade, “Child Marriage in India” Oxford University Press, New Delhi.