The prohibition of Child Marriage Act, 2006: A good law yet ineffective

The social evil of child marriage is prevalent in the Indian society since time immemorial. Various social reformers from time to time raised their voice against this social evil. It was only during the colonial rule in the year 1929, upon the recommendation of Joshi Committee Report, a piece of legislation called the “Child Marriage Restraint Act, 1929” was passed with the solemn object to eliminate the social evil which had the potentialities of dangers to the life and health of a female child as they could not withstand the stress and strains of married life.

With the passage of time various pitfalls in the existing legislation came into fore, the earlier legislation Child Marriage Restraint Act, 1929 was replaced by the prohibition of Child Marriage Act, 2006 inter-alia to increase punishment for the offenders. However, the abhorrent practice of child marriages continues to thrive across the country even after the enactment of “The Prohibition of Child Marriage Act” (PCMA) in 2006. Child marriages remain prevalent in major states including West Bengal, Bihar, Tripura and Jharkhand.

According to a study conducted by National Family Health Survey (NFHS-5) in 2021, close to 23.3% of women between the age group of 20 to 24 years old were found to be married before they turned 18. Most of these marriages are found to be held in rural and remote villages of India. The stark reality that is revealed in this report is despite the law of the land clearly prohibiting child marriages, the practice still remains a part of our social practice.

The continuance of the practice means there is an absence of fear among people regarding law and its repercussions or are ignorant that our country by law prohibits child marriages. PCMA though is an ideal law prescribed to stop the occurrence of child marriages but seems to be lacking in thorough implementation at the ground level. Or, possibly people accept child marriages as part of prevailing custom of a specific community or region.

However, when we take a closer look at PCMA we find though the law in itself is not at fault but the provisions prescribed within the law makes it difficult to execute the noble intentions of the law.

For instance, Section 3 of PCMA puts the onus of filing a petition to annul the child marriage on the “contracting parties” who was a child at the time of marriage. The petition needs to be filed in a District Court by the contracting party through a legal guardian or child marriage prohibition officer (CMPO). Also, the petition needs to be filed before the petitioner (child) completes two years after attaining majority age.

This provision though theoretically is very well intentioned but fails the execution test as the “contracting party” usually a child is under a lot of pressure from her parents and her immediate relatives, which the child can hardly ignore or shrug off and petition for annulling the marriage.

Furthermore, Section 13 of PCMA states that the CMPO on receiving information from any person can petition before a First Class Judicial Magistrate for an injunction to stop a child marriage from being solemnized. This is again a well-intentioned provision but is filled with flaws to be brought into practice. Although Section 16 of PCMA prescribes appointment of CMPOs, there is no clarity whether these are to be appointed in every district or not. In a petition filed by the NGO “Independent Thought” praying for implementation of the provision concerning appointment of CMPO in a uniform and rationale manner, the Supreme Court in November 2018 had issued notice to the central government on the issue. However, the issue still hangs fire as some states like Karnataka have appointed high number of CMPOs, while other states are lagging behind.

In this background, it becomes difficult for people to benefit from the legal provisions and get justice for the victims. It is imperative for the state governments to appoint CMPOs to fulfill a key component of PCMA that is crucial to prevent and stop child marriages.

Child marriages generally take place in remote areas or in under-privileged communities that stay far away from urban areas which house the first class magistrates. The distance between the urban areas and the location of the child marriage makes it practically difficult for people to inform the CMPOs with all the required documentary evidence and detailed information for filing the petition for a court injunction. Many child marriages in the under-privileged communities are held without any documentary evidence like invitation cards or elaborate arrangements due to lack of financial resources. This makes it difficult for informers to collect evidence to be produced before the court for injunction.

In the context of informing the district authorities regarding a prospective child marriage, another moot point needs to be addressed is that there is no clear incentive for the informant to work for the noble cause. At present, local informants lack motivation to inform the CMPOs or other government authorities regarding any impending child marriage.

Apart from these issues, the Act does not explicitly make child marriages “void” at the outset but instead calls to make it “voidable” through legal recourse. This is possibly one of the key reasons why many are misled to believe, child marriage is a legally acceptable practice.

From the outset, it is pertinent to make provisions that would make applicability of the law more pragmatic. Union government and the state governments must incorporate measures within the functional framework of PCMA to ease the access to legal provisions and benefit from the law.

Here it is noteworthy that Nobel Peace Laureate Kailash Satyarthi’s Children’s Foundation (KSCF) calls to financially incentivize informants who would be of much help in preventing and stopping child marriages, merits a serious consideration. It is important to note and understand that child marriage is a criminal offence which is cognizable and non-bailable under the law.

Financial incentive is likely to persuade a prospective informant to break the inertia and make an effort to stop child marriages by sharing information with the concerned authorities.

In this background, the appeal by Kailash Satyarthi for a nationwide campaign to abolish child marriage from our country comes as a ray of light. We hope that this campaign will bear fruits in the coming days. And as we celebrate our 75 years of Independence, our children, who are married off at an early age will get an opportunity to get educated and dream for a vibrant future. All the legal provisions must be fulfilled so that the real perpetrators in child marriages are punished and the evil practice is abolished forever.

Author: Advocate Jagjit Singh Chhabra, Supreme Court lawyer

(Disclaimer: The veiws expressed are of the author and do not represent the views of DNA India.)