Child Marriage

Section 6, and it answers half the objection. Notwithstanding that a child marriage has been annulled by a decree of nullity, every child begotten or conceived of it before the decree, whether born before or after the commencement of the Act, is DEEMED TO BE A LEGITIMATE CHILD FOR ALL PURPOSES.

The reliefs on annulment

Section 4, maintenance and residence. While granting a decree under section 3 the district court may make an interim or final order directing the MALE contracting party, or where he is a minor his PARENT OR GUARDIAN, to pay maintenance to the female party UNTIL HER REMARRIAGE. The quantum is determined having regard to the needs of the child, the LIFESTYLE she enjoyed during the marriage and the means of the paying party, and may be monthly or a lump sum. Where the petitioner is the female party, the court may also make an order as to her RESIDENCE until her remarriage.

Section 5, the children. Where there are children of the marriage, the district court shall make an appropriate order for CUSTODY, the WELFARE AND BEST INTERESTS of the child being the PARAMOUNT consideration; may give the other party access; and may order maintenance for the child by a party to the marriage or their parents or guardians.

Sections 7 and 8. The court may add to, modify or revoke an order under section 4 or 5 on a change of circumstances, even after final disposal; and the district court having jurisdiction includes the court where the defendant or the child resides, where the marriage was solemnised, where the parties last resided together, or where the petitioner resides on the date of presentation.

Note what section 4 does NOT say. It gives maintenance to the FEMALE party only. A male who was a child at the time of the marriage may annul it but has no corresponding claim, which is a deliberate asymmetry under article 15(3).

The offences

Section 9. A MALE ADULT ABOVE EIGHTEEN who contracts a child marriage: rigorous imprisonment up to TWO YEARS, or a fine up to ONE LAKH RUPEES, or both. Note the scope: it punishes the adult male, and not a female adult who marries a male child.

Section 10. Whoever PERFORMS, CONDUCTS, DIRECTS OR ABETS any child marriage: rigorous imprisonment up to two years and a fine up to one lakh rupees, UNLESS he proves that he had reasons to believe that the marriage was not a child marriage.

Section 11. Any person having charge of the child, as parent, guardian or in any other capacity, LAWFUL OR UNLAWFUL, including a member of an organisation, who does any act to promote the marriage, permits it to be solemnised, or NEGLIGENTLY FAILS TO PREVENT it, INCLUDING ATTENDING OR PARTICIPATING in it: rigorous imprisonment up to two years and a fine up to one lakh rupees. Proviso: NO WOMAN shall be punishable with imprisonment. And sub-section (2) raises a PRESUMPTION that where a minor child has contracted a marriage, the person having charge of the child NEGLIGENTLY FAILED TO PREVENT it, unless the contrary is proved.

Section 11 is the operative provision. It reaches the family, it reaches the guests, and it presumes the parent's negligence. Section 9 reaches the groom, and section 10 the priest and the organiser.

Section 15. Notwithstanding the criminal procedure law, every offence under the Act is COGNIZABLE AND NON-BAILABLE.

When the marriage IS void

Section 12, three situations plus one. Where a child, being a minor, is TAKEN OR ENTICED out of the keeping of the lawful guardian; or is by FORCE COMPELLED or by any DECEITFUL MEANS INDUCED to go from any place; or is SOLD for the purpose of marriage and made to go through a form of marriage, or is married and thereafter sold or trafficked or used for immoral purposes, such marriage is NULL AND VOID.

Section 14, the fourth. Any child marriage solemnised in contravention of an INJUNCTION ORDER under section 13, whether interim or final, is VOID AB INITIO.

So the rule to state. A child marriage is VOIDABLE as a general rule; it is VOID where the child was taken, compelled, sold or trafficked, or where it was performed in breach of an injunction.

Prevention: the injunction and the officer

Section 13, the injunction. On the application of the Child Marriage Prohibition Officer, or on a complaint or information from ANY PERSON, a Judicial Magistrate of the first class or a Metropolitan Magistrate who is satisfied that a child marriage has been ARRANGED OR IS ABOUT TO BE SOLEMNISED shall issue an injunction against any person, including a member of an organisation, prohibiting it. A complaint may be made by any person with personal knowledge or reason to believe, and by a NON-GOVERNMENTAL ORGANISATION with reasonable information. The Magistrate may take SUO MOTU cognizance on any reliable report or information. And for preventing MASS CHILD MARRIAGES on days such as Akshaya Trithiya the District Magistrate is deemed to be the Child Marriage Prohibition Officer with all his powers.

Section 13's remaining sub-sections. No injunction is to be issued without giving notice and an opportunity to show cause, except where the Magistrate is satisfied that an ex parte injunction is necessary; the injunction may be rescinded or altered on application; and disobedience is punishable with imprisonment up to two years or a fine up to one lakh rupees or both, with the proviso that NO WOMAN shall be punishable with imprisonment.

Section 16, the officer. The State Government SHALL by notification appoint a Child Marriage Prohibition Officer for the whole State or a specified part; may request a respectable member of the locality with a record of social service, an officer of the gram panchayat or municipality, a government or public sector officer, or an office bearer of a non-governmental organisation to ASSIST him, who is BOUND to act accordingly. His duties are to PREVENT the solemnisation of child marriages by taking such action as he may deem fit, including approaching the court; to collect evidence for the effective prosecution of persons contravening the Act; to advise individuals or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages; to create AWARENESS of the evil which results from child marriages; to sensitise the community; to furnish periodical returns and statistics; and to discharge such other functions as the State Government may prescribe.

Sections 17 to 19. The Officer is deemed a PUBLIC SERVANT; no suit, prosecution or other proceeding lies against him for anything done in good faith; and the State Government may make rules, laid before the State Legislature.

Sections 1, 20 and 21. Extent to the whole of India and to all citizens of India beyond India, with an exception for the Renoncants of Puducherry; amendment of section 18 of the Hindu Marriage Act 1955 to raise the punishment for contravening the age condition to two years or one lakh rupees or both; and repeal of the Child Marriage Restraint Act 1929, with pending proceedings continuing under the repealed Act.

The interaction with the other statutes

With POCSO and the criminal law. Independent Thought v. Union of India read down Exception 2 to section 375 of the Penal Code so that a husband is protected only where the wife is EIGHTEEN or above, which is why Exception 2 to section 63 of the Bharatiya Nyaya Sanhita now says eighteen. So intercourse within a child marriage where the wife is below eighteen is rape, and POCSO applies irrespective of the marriage.

With the Juvenile Justice Act. Section 2(14)(xii) makes a child at IMMINENT RISK OF MARRIAGE before the age of marriage a child in need of care and protection, so the Child Welfare Committee may act alongside the Magistrate's injunction.

With the personal laws. A Hindu marriage in breach of the age condition in section 5(iii) of the Hindu Marriage Act 1955 is neither void nor voidable under that Act; only the punishment applies, as raised by section 20 of this Act. The Special Marriage Act 1954 makes the age a condition of a valid marriage. Muslim personal law has traditionally recognised marriage at puberty, and the interaction of that with this Act has been litigated in the High Courts. State the position and do not resolve it.

And with the age itself. A Bill to raise the age of marriage for women from eighteen to twenty-one was introduced and referred to a Standing Committee; the age in section 2(a) remains eighteen for a female and twenty-one for a male. Say so, with the date if you know it, and do not assert a change.

A worked example

A girl of sixteen is married to a man of twenty-six. The priest, her parents and about two hundred guests attend. Two years later, at eighteen, she wants out. She has a one-year-old child.

Is the marriage void? No, unless section 12 applies, that is unless she was taken or enticed from her guardian, compelled by force, induced by deceit, or sold. On these facts it is VOIDABLE under section 3.

Who may petition, and when? Only she, under the proviso to section 3(1), and at any time before she completes TWO YEARS after attaining majority, so before she is twenty.

What can she get? Section 4: maintenance from her husband until her REMARRIAGE, fixed by reference to her needs, the lifestyle she enjoyed during the marriage and his means, monthly or in a lump sum; and an order as to her RESIDENCE until remarriage, because she is the petitioner. Section 5: custody of the child, the child's welfare being paramount, with access to the father and maintenance for the child.

Her child's status. Section 6: legitimate FOR ALL PURPOSES, notwithstanding the decree of nullity.

Who committed an offence? The husband, under section 9, being a male adult above eighteen who contracted a child marriage: up to two years and one lakh rupees. The priest and the organisers, under section 10, unless they prove they had reason to believe it was not a child marriage. Her parents, under section 11, with the section 11(2) presumption that they negligently failed to prevent it; and the guests, because section 11 includes ATTENDING OR PARTICIPATING. Her mother may be fined but not imprisoned, by the proviso.

What should have happened before. Section 13: on the information of any person, or of a non-governmental organisation, the Magistrate should have issued an INJUNCTION, and a marriage in breach of it would have been VOID AB INITIO under section 14. Section 2(14)(xii) of the Juvenile Justice Act would also have made her a child in need of care and protection.

And the criminal law. After Independent Thought, intercourse with her while she was below eighteen is rape, and POCSO applies irrespective of the marriage.

What this does NOT mean

It does not mean a child marriage is valid. It is an offence to bring about, punishable for the groom, the officiant, the family and the guests, and it is voidable at the child's option.

It does not mean it is void. Except in the four situations in sections 12 and 14, it subsists unless annulled.

It does not mean the girl loses her children's legitimacy. Section 6 preserves it for all purposes.

And it does not mean the age is the same for both. Section 2(a) says twenty-one for a male and eighteen for a female, and the proposal to equalise them at twenty-one has not been enacted.

Quick revision

Act 6 of 2007, in force 1 November 2007, replacing the Child Marriage Restraint Act 1929. s.2(a) child: male under TWENTY-ONE, female under EIGHTEEN; s.2(b) child marriage, either party a child. s.3 VOIDABLE at the option of the party who was a child; petition to the district court only by that party; through a guardian or next friend WITH the Child Marriage Prohibition Officer if still a minor; at any time before TWO YEARS after attaining majority. s.4 maintenance from the male party or, if he is a minor, his parent or guardian, until REMARRIAGE, by reference to needs, LIFESTYLE and means, and residence for the female petitioner. s.5 custody with welfare paramount, access and maintenance for the child. s.6 children LEGITIMATE FOR ALL PURPOSES despite a decree of nullity. ss.7 and 8 modification, and jurisdiction.

s.9 male adult above eighteen contracting a child marriage, two years and one lakh rupees. s.10 performing, conducting, directing or abetting, with a defence of reasonable belief. s.11 the person having charge, including promoting, permitting, NEGLIGENTLY FAILING TO PREVENT and ATTENDING OR PARTICIPATING, with a PRESUMPTION of negligence and no imprisonment for a woman. s.12 VOID where the child was taken or enticed, compelled by force, induced by deceit, or SOLD or trafficked. s.13 INJUNCTION by a Magistrate on the Officer's application or any person's complaint or a non-governmental organisation's information, or suo motu, with the District Magistrate deemed the Officer for MASS marriages, and up to two years for disobedience. s.14 marriage in breach of an injunction VOID AB INITIO. s.15 offences COGNIZABLE AND NON-BAILABLE. s.16 Child Marriage Prohibition Officers, with power to require assistance and duties of prevention, evidence, counselling, awareness, sensitisation and returns. ss.17 to 21 public servant, good faith, rules, amendment of section 18 of the Hindu Marriage Act, and repeal of the Act of 1929.

Interactions: Independent Thought, so intercourse with a wife below eighteen is rape and POCSO applies; section 2(14)(xii) of the Juvenile Justice Act, imminent risk of marriage; and the personal laws, where a Hindu marriage below the age is neither void nor voidable under the Hindu Marriage Act itself.

Test yourself

1. Define a child and a child marriage under the Act. A child is a male who has not completed twenty-one years and a female who has not completed eighteen; a child marriage is a marriage to which either contracting party is a child.

2. Is a child marriage void or voidable, and who may avoid it? Voidable, at the option of the contracting party who was a child at the time. Only that party may petition the district court, through a guardian or next friend together with the Child Marriage Prohibition Officer if still a minor, at any time before completing two years after attaining majority.

3. In what circumstances is a child marriage void? Under section 12, where the child, being a minor, is taken or enticed out of the keeping of the lawful guardian, is compelled by force or induced by deceitful means to go from any place, or is sold for the purpose of marriage and made to go through a form of marriage, or is married and thereafter sold, trafficked or used for immoral purposes. And under section 14, where the marriage is solemnised in contravention of an injunction issued under section 13, in which case it is void ab initio.

4. Who commits an offence when a child marriage takes place? The male adult above eighteen who contracts it, section 9; whoever performs, conducts, directs or abets it, section 10, unless he proves reasonable belief that it was not a child marriage; and any person having charge of the child who promotes it, permits it, negligently fails to prevent it, or attends or participates in it, section 11, with a presumption of negligence against the person in charge and a proviso that no woman shall be imprisoned.

5. What is the criticism of making a child marriage voidable, and what preserves the girl's position? That an option a girl cannot exercise is no option: she is usually in the husband's household, dependent, often with a child, and the window closes two years after majority. What preserves her position is section 4, maintenance until remarriage and an order as to residence; section 5, custody with welfare paramount; and section 6, which keeps every child of the marriage legitimate for all purposes despite the decree of nullity.