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Child marriages in India: Developments in the view of the judiciary and legislations

Introduction:

A recent study found that one in five girls and nearly one in six boys are married below the legal age of marriage. The study also found that there has been a significant drop in the statistics of child marriages in India from 1993 to 2023. In 1993, the number of girls being involved in child marriages was 49.4% which is now 22.3% and the boys from 7.1% in 2006 and 2.2% in 2021[1].

In India, the current legislation providing for child marriage is The Prohibition of Child Marriages Act, 2006 which states that the legal age for marriage is 18 for women and 21 for men.

The Prohibition of Child Marriages Act, 2006:

The PCMA was an amendment to the Child Marriage Restraint Act, of 1929. In the Act of 1929, the legal age of marriage was 15 for girls and 18 for men. The Act was amended in 1978 to change the legal age for marriage to 18 and 21 to women and men respectively.

The major problem with the 1978 Act was its enforcement. Although it was punitive, it did not create any space for people to complain or capture child marriages on time. A child marriage after solemnised was considered valid and not void or voidable. The only preventive measure that was created was to order a court injunction to stop child marriage before solemnisation[2].

The current legislation provides that:

  • Child marriages are voidable as per Section 3 of the Act at the option of either party. They provided that the man or woman before filing the petition should not have attained 20 years of age.
  • Female children in child marriages are entitled to maintenance by authorizing the district court to pass an order for maintenance or residence. The maintenance should be either paid by the guardian of the groom or himself if he attains the age of 18. The maintenance should be paid during the decree of annulment of marriage, as per Section 4 of the Act.
  • If child marriage is conducted out of immoral practices such as selling the bride or enticing to keep the child away from legal guardians, or marriage through coercion would be considered void as per Section 12 of the Act.
  • The solemnization, promotion and permitting of child marriage is a penal offence unless there’s reasonable proof that the marriage was not child marriage. However, no woman shall be punished. Section 9 provides that if a man above the age of 18 marries someone underage, he would face rigorous imprisonment of 2 years or a fine. The nature of the punishments is non-bailable and cognizable.

Enforcement:

In the matters of child marriages, the question arises of whether the customary law supersedes the Act. The absence of a uniform civil code allows differential treatment of children resulting in discrimination. Some victims of child marriage are thus entitled to better legal protection under the national law while others may remain out of this protective net[3].

The Hindu Marriage Act, of 1955 stipulates that both parties must be of legal age to consent. A marriage in which consent is acquired by coercion is void and subject to nullity decrees.  Both the bride and the groom must provide their verbal and written agreement to the marriage by Islamic law. According to the Indian Christian Marriage Act of 1872, parental consent is required before marriage if one of the parties to the marriage is a minor. If the father is still alive, the consent of the guardian of the minor, or the mother’s consent in the absence of a guardian, is required[4].

The problem that arises in implementation is that only the parties in the marriage can declare the child marriage voidable, which rarely happens. It should be such that all child marriages are void ab initio. The result of such is that the deterrence purpose of the Act is not justified and becomes purposeless. The officers that are appointed through the provisions of the Act are usually the District magistrates, who on the other hand have so many other responsibilities on their own.

Case laws:

On the protection of the dignity of women, the Supreme Court in the case of  Independent Thought v Union of India[5], a landmark judgement, held that any act of sexual intercourse during child marriage would be considered rape under Section 375 of IPC.

The court in furtherance, held that the Prohibition of Child Marriage Act applies to all and the act will prevail over the Hindu Marriage Act and the Muslim Marriages and Divorce Act.

The apex court in the case of Hardev Singh v Harpreet Kaur[6] held that if at the time of marriage if the bride is above the majority, then no punishment would apply to men marrying if he is 18-21 years old.

The court stated that “male adult above eighteen years of age, contracts a child marriage” to mean “male adult above eighteen years of age marries a child”. Further, it held that there is no requirement for consent if both parties are above the legal age.

In the conflicting case of Shalini @ Janvi V State of Uttar Pradesh[7], the bride’s father was trying to sell her and her grandmother had threatened to kill her. At that time, she was 16 years old and she married a man of her own will. She testified to the court that she married the man wilfully.

The court held that the marriage is not void under PCMA as she wilfully married the guy and she was neither abducted or kidnapped. It stated that :

“She hails from a disturbed and broken family. It is under such circumstances; she got married to Anil and wants to live with him as his wife. She has neither been kidnapped nor abducted. In such circumstances, it would be against the interests of substantial justice to rule that petitioner No.1 had been kidnapped or abducted by accused Anil/petitioner No.2”

The primary issue of most cases is whether the consent of a minor child is significant. The court in the case of “Ranjeet Singh vs State of Punjab and Ors” analysed the facts as the bride ran away from home and married a man of her own volition. The high court held that the consent of a minor in a case of child marriage is insignificant. However, she refused to go back to her parent’s house. Therefore the court directed to stay at her husband’s house but if she wishes to go back to her parent’s house, such should be allowed until she attains a majority.

The pattern of prosecuting men for child marriages solely rely on the testimonies given by the brides. It will be challenging to take back the allegation and then try to reach a compromise if she is accused of sexual assault. As a result, the girl’s evidence and oral declarations are crucial in situations when her parents can pressure her to make up a case against her husband. Consent should be taken into account as a mitigating element in situations involving allegations of statutory rape, and the judiciary should have more opportunities to clear young men who have eloped with adolescents who are near to reaching adulthood on their own free will.

The Prohibition Of Child Marriage (Amendment) Bill, 2021 :

The bill was passed in the Lok Sabha in December 2021. The key highlights are:

  • The bill amends the Act in the provisions of legal age. The minimum age of marriage for both men and women is said to be 21.
  • The bill also ensures that upon enforcement, it will override any other law, custom and practice.
  • For annulment of marriages, the parties are entitled to file an application for 5 years (23 years) of attaining majority as opposed to 2 years[8].

 

The conflict that comes to light is the fundamental right to marry after attaining majority. The Indian Majority Act stipulates that a person attaining the age of 18 is a major. There is no clear rule on which of the two Acts should be followed in the instances of marriage. The Supreme Court has held that the right to marry is a fundamental right under Article 21 of the Constitution[9]. In another case, it was held that when two adults consensually choose each other as life partners, it is a manifestation of their choice, which is recognised under Articles 19 and 21 of the Constitution[10].   If this Bill were passed, it would be legal to have sexual relations but illegal to marry for those between the ages of 18 and 21 years as consensual intercourse is not prohibited by law.

Conclusion:

There is a slow decrease in the number of child marriages day to day but the evil still exists. The conflict of the age of majority should be addressed by the lawmakers. If for example, marriage under muslim law is a contract and the legal age to enter into a contract is 18. But if the Act stipulates 21 as the age of marriage, the provisions of law contradict each other.

The implementation of the PCMA is still something that should be worked upon. Most people do not recognize child marriage as an offence and aren’t aware enough to oppose it. Unless the contracting parties contend it, the marriage is valid as per the Act. It is highly important to understand the health and overall implications child marriage has on the young population. Child marriages should be prohibited irrespective of customary practices.

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Written by- Sanjana Ravichandran

[1] Anuradha Mascarenhas, One in 5 girls in India still married below legal age, finds new study, INDIANEXPRESS (Dec 17,2023) https://indianexpress.com/article/cities/pune/one-5-girls-india-married-legal-age-find-new-study-9070841/ .

[2] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf

[3] Sangeeta Banerjee and Gayatri Sharma, The Status of Child Marriage in India: A Guide for NGOs and CSOs on Using the Law to End Child Marriages in India, GIRLSNOTBRIDES (June,2022) https://www.girlsnotbrides.org/documents/1783/Child_marriage_in_India_law_guide_and_directory.pdf

[4] Enakshi Ganguly Thukral and Bharti Ali, Child Marriage in India: Achievements, Gaps and Challenges, OHCHR, https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/ForcedMarriage/NGO/HAQCentreForChildRights1.pdf

[5] 2017 SCC 10 800

[6] AIR 2020 SC 37

[7] 2019 SCC ONLINE ALL 4310

[8] The Prohibition of Child Marriage (Amendment) Bill, 2021, PRSINDIA (https://prsindia.org/billtrack/the-prohibition-of-child-marriage-amendment-bill-2021)

[9]  Shafin Jahan vs Ashokan and Others, (2018) 16 SCC 368

[10]  Shakti Vahini vs Union of India and Others, (2018) 7 SCC 192

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Article 21 Of The Constitution Of India Provides Inherent Right To Every Individual In Exercising Personal Choices, Especially In Matters Relating To Marriage: High Court of Delhi 

Title: MD NEMAT ALI AND ANOTHER v. THE STATE AND OTHERS 

Decided on: 17th October 2023 

W.P.(CRL) 3045/2023 

Coram: HON’BLE MR. JUSTICE SAURABH BANERJE 

Introduction  

Delhi high court has directed to give protection to a major couple who are under threat for getting married against the will of their families on the basis of Article 21 of the Constitution of India, which gives Protection to Life and Personal Liberty to all persons whereby it is the inherent right of every individual to exercise personal choices, especially in matters relating to marriage. 

Facts of the case  

The petitioners are majors who got married to each other on 06.10.2023 according to Muslim rites and ceremonies. The Nikah Nama was duly registered by a Quazi in accordance with Muslim law. Respondent no.4 and 5 threatened the petitioners & petitioner no.1’s family members of dire consequences as the marriage was solemnized against the wishes of respondent no.4 and 5. A petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. has been filed by the petitioners seeking issuance of a writ in the nature of mandamus directing respondent nos.2 and 3 to provide protection to the petitioners against life and liberty threats given by respondent no.4 and 5 (father and uncle of the petitioner no.2). 

Court Analysis and Decision 

The court finds that the petitioners in the present case are both major and are well within their rights to marry each other. Respondents no. 4 and 5, though family members of petitioner no.2, cannot be allowed to threaten the life and liberty of the petitioners, who do not require any social approval for their personal decisions and choices. Article 21 of The Constitution of India gives Protection of Life and Personal Liberty to all persons whereby it is the inherent right of every individual to exercise personal choices, especially in matters relating to marriage. Thus, the petitioners are well and truly entitled for protection under Article 21 of The Constitution of India. Accordingly, the petition was allowed, and the petitioners are free to call or get in touch with the officers of Jahangir Puri Police Station, Delhi, as and when the need arises. The station house officer and Beat Constable concerned were directed to take all possible steps to provide adequate assistance and protection to the petitioners, in accordance with law. 

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Written by- K R Bhuvanashri 

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The Discretionary Authority of Granting Bail on Medical Considerations Under the PMLA Must Be carried out With Caution: The Delhi High Court

Title: SANJAY JAIN (IN JC) v. ENFORCEMENT DIRECTORATE

BAIL APPLN. 3807/2022

Judgment on – 05.06.2023

CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN

Introduction

“The independence of a person accused or found guilty of an offense can be curtailed according to the procedure prescribed by law; nevertheless, right to health is also recognized as an important facet of Article 21 of the constitution; simply because a person is under trial or, for that matter, a convict, placed in jail, this facet of right to life cannot be curtailed; it remains an obligation of the state to provide adequate and successful healthcare to every person lodged in jail.”

 The Delhi High Court decided on Monday that the right to grant bail on medical excuses under the PMLA is optional and must be employed prudently after establishing satisfaction that requisite conditions exist leading to the use of such a decision.

Facts of the Case

The court was considering a bail petition filed by Sanjay Jain, who was charged with money laundering. The standard bail plea was handled by his wife. During the usual bail hearing, Jain’s wife filed a declaration on May 22 asking for temporary relief on medicinal and humanitarian fronts for three months, claiming that his health was critical. According to the wife’s statement, the 57-year-old had several pre-existing conditions, including hypertension, depression and anxiety, diabetes, and damaged mitral valve prolapse. It was also reported that his health had deteriorated in jail and that he was unable to receive medical care.

While declining to grant Jain temporary release, the court did order the Director of AIIMS to promptly form a Medical Board of Doctors to evaluate Jain’s medical condition.

According to section 45 of the PMLA, not every condition enables a defendant to grant bail for medical reasons, and the term used in the provision’s first proviso is that a person can be freed on release if he is “sick” or “infirm.”

Courts Analysis and Decision

Merely, the petitioner’s health must take precedence, and it is his fundamental right to adequate and effective treatment while incarcerated. However, if specialized or sustained treatment and care is required due to the petitioner’s medical condition and is not possible while incarcerated, the petitioner will be eligible for the benefit of interim bail under the first proviso to Section 45(1) of the PMLA, the court said. Justice Mahajan stated that appointments for Jain’s diagnostic procedures were booked roughly five months to one year later, indicating that government Hospitals are overcrowded and unable to handle the medical concerns he encountered while in jail.

Nevertheless, there is no medical consensus on record indicating how critical is the need for the applicant to undergo CT angioplasty for his heart disease and MRI LS spine and whether, as a result of the postponement of the said testing and subsequent delay in treatment, the petitioner’s life could be jeopardized,” it said. “In lieu of the conclusions of the experts, it is hard for this Court to conclude that there is a case for grant of interim bail on medical grounds,” the court added. “The Court can’t assume the role of a doctor and make its own assessment of the petitioner’s health on the medical grounds.”

The judge ordered the Jail Superintendent to turn over all of Jain’s medical records to the Medical Board of Doctors and allowed the wife to turn over pertinent medical data to the governing body with a duplicate to the Special Counsel for ED. The Jail Superintendent received further instructions to make sure that Jain appears before the Medical Board on June 7 at the date and place specified by the Board. “Upon review of medical documentation and testing of the applicant, the Medical Board will submit its report to this Court before or on 10.06.2023, the court ordered.”

Judgment

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Under Article 21, the right to food includes the right to food that is hygienic: Gujarat High Court rejects an application to reopen the meat markets in Surat.

Patel Dharmeshbhai Naranbhai v. Dharmendrabhai Pravinbhai Fofani.

Date :  11/04/2023

CIVIL APPLICATION NO. 10 of 2023 In R/WRIT PETITION (PIL) NO. 133 of 2021

Presided by: HONOURABLE MR. JUSTICE N.V.ANJARIA and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA

 Facts

In light of various writ petitions filed before the Supreme Court relating to illegal slaughter houses, their impact on the animals, public health and environment and for enforcement of various laws including food safety and standards laws, closure of illegal slaughter houses operating in contravention of the statutory provisions, the animal transport norms and for formation of State Level Committees to oversee the implementation of these and related laws, the Supreme Court passed various orders in the public interest litigation, and issued directions to Central Pollution Control Board to initiate action against all slaughter houses which are not meeting with the norms and complying with the abattoir rules.

According to the Supreme Court’s directives, unstamped meat stores and establishments that sold or slaughtered it without a licence were subject to closure by the authorities on the grounds that they were run in violation of numerous legal requirements. In light of the aforementioned facts, applications were submitted to the court asking for a ruling authorising the reopening of chicken meat markets in Surat.

Issue

Whether the closing of meat markets violates Article 19(1)(g) of the Constitution and amounts to a restriction on the freedom to free trade?

Judgement

The Court cited the provisions of the Food Safety & Standards Act, 2006, and the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (the “Food Act”), stating that meat is one of the foods covered by the Act and that “Meat and Meat Products” are the subject of Regulation 2.5 of the Food Safety and Standards Regulations, 2011. The rules stipulate that food business owners who manufacture, process, store, and sell meat and meat products must adhere to particular hygienic and sanitary procedures. Before being granted a licence to operate, the abattoir must first get a No Objection Certificate (‘NOC’) from the local authority.

According to the court, the applicants’ shops were shut down because they didn’t follow the rules of the applicable legislation, and permission to reopen the meat shops couldn’t be given because the shop owners continued to break the rules. The Court further stated that any basic right under Article 19(1) is subject to the reasonable limitations set forth in Subparagraphs (2) through (6). According to the statement, the provisions of the Food Act apply to the meat industry and meat shops. The regulatory and hygienic measures included in the said act for meat shops and slaughterhouses shall function as reasonable limitations on the freedom of the vendors of meat and slaughterhouse owners to conduct business.

The Court said that the freedom to trade or right to do business have to yield the public health norms and the restrictive compulsions needed to be enforced in larger public good. The right to free trade in food items like meat, or any such food must be sub-serving to public health and food safety requirements…. 

The Court also made reference to the consumer’s right to food safety, stating that this right is compatible with Article 21 of the Constitution just as the right to food is. The Court further declared that the State authorities must fulfil their commitment to assure such safe food by putting the food safety standards and other regulatory measures outlined in the various statutes into practise and enforcement. Therefore, it would be difficult to allow all the meat markets and slaughterhouses that have been shut down by the authorities due to their failure to adhere to the licencing and regulatory standards, food and safety requirements, and pollution control requirements to reopen on large grounds.

Thus, the Court dismissed the applications and observed that meat shop owners, meat vendors or slaughter house owners ensuring the compliance of regulatory norms should be permitted to reopen their shops and establishments and run their business…. 

JUDGEMENT REVIEWED BY AMIT ARAVIND

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