Child marriage a social evil, it should be made void, says Supreme Court

NEW DELHI: Terming child marriage as social evil which endangers life and health of a girl child, the Supreme Court on Friday said that such marriages should be declared as void and stringent punishment should be prescribed against family members who promote and perform such marriages.

Although Prohibition of Child Marriage Act (PCMA) bars child marriages but such marriage is held to be valid and can be annulled by court only at the option of contracting party being a child. It says every child marriage shall be voidable at the option of the contracting party who was a child at the time of the marriage, virtually giving legal approval to the institution of child marriage till its validity is challenged.

Only the state of Karnataka has amended the PCMA and declared any marriage of a child, a female aged below 18 years and a male below 21 years, as void.

Favouring amendment in law to declare child marriage illegal, a bench of Justices Madan B Lokur and Deepak Gupta said that other states must follow Karnataka to declare child marriages void. "This is how the law should have been throughout the country. Where the marriage is void, there cannot be a husband or a wife and I have no doubt that protection of Exception 2 to Section 375 IPC cannot be availed of by those persons, who claim to be husband of child brides pursuant to a marriage which is illegal and void."

"It would be wise for all the state Legislatures to adopt the route taken by Karnataka to void child marriages and thereby ensure that sexual intercourse between a girl child and her husband is a punishable offence under the POCSO Act and the IPC," the bench said.

The court also suggested that penal provision should be made stringent to punish family members who force a child into matrimonial alliances. The court held that child marriage would continue in the country till harsher punishment is prescribed against people who abet and perform such marriages.

Under Section 9 of the PCMA, if a male adult above 18 years of age contracts a child marriage, he can be sentenced to rigorous imprisonment up to 2 years or fine which may extend up to one lakh rupees or both. However, no minimum sentence is provided even under this Act. The Act also prescribes same punishment for parents and other persons who perform,conduct, direct or abet a child marriage. Interestingly, the Act says that no woman shall be punishable with imprisonment

Terming the punishment as neither sufficiently punitive nor deterrent, the bench said, "Therefore, the PCMA has been breached with impunity. I think the time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage, including child marriage. More stringent punishments should be provided and some minimum punishment should definitely be provided especially to those mature adults who promote such marriages and who perform, conduct, direct or abet any such marriage. Otherwise, this legislation will never act as a sufficient deterrent to prevent or even reduce child marriages," it said.

The court said that Act was being misused because women who promoted child marriages had been kept out of the penal provision. "It is obvious that a woman would be placed in the forefront by any person who gets a child marriage conducted. Such a woman cannot be sentenced to undergo imprisonment and at the most, a fine can be levied," it said.