Abstract
Marriage might be a sacred institution in one religion while a contract in another. Irrespective of being a contract or holy, marriage is an integral part and practice of India. One day or another majority of the Indians get married. It might be in the early stages of their life or later. The Constitution of India allows all Indians to follow their religions and their customs[1]. Religions in India under their personal laws have their own rituals and prerequisites in order for them to get married under their specific law. And sometimes these personal laws clash with the general laws formulated to prevent child marriage. In this paper, we will be going in-depth into this friction and we will be looking for any solutions if possible.
Keywords
Child marriage, Personal laws, Age of marriage, Fundamental rights, Minimum marriage age, Marriage in India
Introduction
“India has a great heritage and it’s a model for religious harmony where people of different persuasions live peacefully and in harmony. ”
– Dalai Lama
Marriage is when a man and a woman come together, forming a relationship of hubby and woman in order to continue their families. In India, the traditional reason why two people are bound together in holy match is so that they propagate and continue humanity. A father gives away his son to the bride who’s also responsible to maintain the girl for the rest of her life. But there are times when people get their children married at a veritably youthful age in order to avoid spending on their education, conservation, etc substantially girls. This is known as child marriage. And in order to help it, the Indian government has made laws defining minimal age for people to get wedded. This pe- decided age demand on the one hand restricts all children to be married and having a happy life, while on the other hand, it creates disunion with particular laws. This disunion is a moment’s issue as to what are we supposed to cleave to. Following the general law and overlooking the particular laws violates a person’s abecedarian right to their freedom of religion and following particular laws promotes child marriage. So what’s right or wrong in this situation?
Methodology
The analysis is experimental in form, and the exploration is grounded on primary and secondary sources to completely examine the conflicts between marriage age in India. Secondary sources similar to journals, magazines, and websites are employed for exploration, and original accouterments similar as bare acts, constitutions, bills, cases, and regulations as primary coffers.
Review of literature
Edward Westermarck defines marriage in his book” History of Mortal Marriage,” as “a lasting connection between a man and a woman that extends beyond the act of reduplication and continues until the birth of a seed.”
Malinowski says that “marriage is a contractual agreement aimed at producing and minding for children.”
Robert. Lowie describes marriage as “a long-continuing bond between individuals who are permitted to be mates.”
Lundberg explains that “marriage involves a set of rules and scores that determine the rights, liabilities, and boons of hubby and woman in relation to each other.”
Horton and Hunt define marriage as “a socially accepted arrangement in which two or further individuals establish a family.”
According to Anderson and Parker, “marriage is an honored union by society, involving a durable bond between one or further males and one or further ladies, intended to grease sexual intercourse for the purpose of gravidity.[2]”
Legal standpoint
The right to marriage is part of the 20th century right to life. Article 21 of the Constitution of India which states that “no person shall be deprived of life or liberty except in accordance with law”. [3]This right was respected according to the Universal Declaration of Human Rights of 1948. 16 from the same countries “1. Men and Women of full age without any limitation due to race, nation or religion, have the right to marry and to set up a family. They’re entitled to equal rights as to marriage, during the marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full concurrence of the intending consorts.
3. The family is the natural and abecedarian group unit of society and is entitled to protection by society and the state.”
Marriage might be covered under fundamental rights, but this doesn’t mean that people as guardians of their minor children are entitled to get them wedded.
Some get their children married to reduce their burden or earn income. Others somtimes do so because they believe it will safeguard their daughters’ futures or cover them from being a victim of commodities in their teenagers. morals and conceptions around gender places, as well as the socio-profitable threat of gestation apart of marriage, also encourages practice.[4]
Child marriage robs girls of their non age and poses significant pitfalls to their well-being. Girls who are married before the age of 18 are more exposed to domestic violence and are less likely to continue their education. They face worse profitability and health issues compared to their peers, immortalizing a cycle that negatively affects their own children and placing strain on a country’s capability to give quality health and education services.
Child misters frequently witness adolescent gravidity, which carry an advanced threat of complications during gestation and parturition. also, the practice can insulate girls from their family and musketeers, significantly impacting their internal health
Method
In order to avoid child marriages to happen in India, certain laws have been enacted.
The Child Marriage Restraint Act
also known as the Sarda Act, was introduced on April 1, 1930, as a legal measure to eradicate the practice of child marriage. Initially, it was implemented throughout the nation, except some states like Hyderabad and Jammu and Kashmir. This act set the minimum age for marriage at 18 for males and 14 for females.
After India gained independence in 1949, the minimum age for females was increased to 15. Subsequently, in 1978, amendments were made to raise the minimum age for both males and females to 18 and 21 years, respectively. The act prescribed penalties for those who violated its provisions. If a male between 18 and 21 years of age married a child, the punishment could include imprisonment for up to 15 days, a fine of 1,000 rupees, or both. For males above 21 years of age, the penalty could be imprisonment for up to three months along with a possible fine.
The act also specified penalties for individuals involved in performing or organizing child marriage ceremonies. They could face imprisonment for up to three months and a potential fine unless they could prove that the marriage they conducted was not a child marriage. Furthermore, parents or guardians who consented to or facilitated a child’s participation in a marriage could face imprisonment for up to three months or a potential fine.
The act underwent amendments in 1940 and 1978 to progressively raise the age limits for both male and female children involved in marriage.[5]
The Prohibition of Child Marriage Act (PCMA)
Enacted by the Government of India in response to a plea made at the Supreme Court (Writ Petition (C) 212/2003). It was introduced in 2006 and came into effect on November 1, 2007, with the purpose to address the shortcomings of the previous Child Marriage Restraint Act and to emphasize the prevention and prohibition of child marriage, instead of merely restraining it.
The Prohibition of Child Marriage Act made significant changes to provide further protection for children and streamline the process of taking action against child marriages. The age limits for adult males and females remained the same, but new provisions were introduced. Minors who were forced into child marriages now have the option to void their marriages within two years after reaching adulthood. In certain circumstances, marriages of minors can be declared null and void even before they reach adulthood. If a marriage is nullified, all valuables, money, and gifts exchanged during the marriage must be returned, and the girl must be provided with a place of residence until she marries or reaches adulthood.
Children born from child marriages are considered legitimate, and the courts are expected to prioritize the best interests of the children when determining parental custody. The act also imposes penalties for those involved in child marriages. Any male above 18 years of age who enters into a marriage with a minor, or anyone who organizes or conducts a child marriage ceremony, can be sentenced to up to two years of imprisonment or be fined.
The Prohibition of Child Marriage Act aimed to strengthen the legal framework and provide better safeguards for children at risk of child marriage in India.
Muslim institutes in India have contended that laws enacted by the Indian Government, such as the 2006 child marriage law, do not apply to Muslims due to the argument that marriage falls under personal law jurisdiction.[6] However, the Delhi High Court and other higher courts in India, have disagreed. The Delhi Court, for instance, has ruled that the Prohibition of Child Marriage Act, 2006 supersedes all personal laws and applies to every citizen of India provided it is a general law. The court determined that if either the man or woman involved in an underage marriage is over 16 years old, the marriage would be voidable, meaning it would be considered valid if no action is taken by the court to order otherwise or by the parties on attaining the age of majority. However, if either party is below 18 years of age, the marriage is considered void, as the legal age of consent in India is 18, and sexual activity with a minor is a statutory crime under Section 376 of the Indian Penal Code. Various other high courts in India, including the Gujarat High Court, Karnataka High Court, and Madras High Court, have also ruled that the Prohibition of Child Marriage Act supersedes any personal laws, including Muslim personal law.
When there is a conflict between the Prohibition of Child Marriage Act and the Mohammedan Law, which allows a Muslim girl to marry upon reaching puberty at the age of 15, the Supreme Court of India has announced that it will examine the matter. In a previous 2018 judgment in the Hadiya Akhila and Safin Jahan case, the Supreme Court recognized that attaining puberty is a requirement for a valid Muslim marriage.[7]
In India, the legal age of marriage is 18 years for women and 21 years for men. However, there is a question regarding the conflict between the age of marriage given in the Prohibition of Child Marriage Act and the provisions of Muslim Law which deems the age of marriage to be 15 i.e. attainment of puberty.
The Supreme Court will review and determine how to reconcile the conflicting provisions of these laws. The court’s decision will provide clarity on the matter and establish which law will prevail in such cases of conflict between personal law and general laws.
The legal question was brought up by a girl who had entered into a marriage at the age of 16 with a Muslim boy. However, the Allahabad High Court declined to dismiss the First Information Report (FIR) filed against him for alleged kidnapping and ordered that the girl be placed in a shelter home. The court deemed the marriage as invalid on the grounds that she was a minor at the time.[8]
During the hearing, advocate Dushyant Parashar argued that this case raises an important legal question regarding conflicts between personal laws, such as the provision in Muslim personal law that allows a Muslim girl to marry a boy she chooses upon reaching puberty (at the age of 15), and acts of Parliament like the Prohibition of Child Marriage Act 2006 and the Indian Majority Act 1875. The question at hand is which law will prevail when personal religious rights are involved.
According to a medical report, the Supreme Court was hearing an appeal filed by the girl, who was 16 years old at the time. The appeal challenged the order of the high court in July 2019, which had dismissed her petition against a trial court’s decision to send her to a shelter home in Ayodhya.
The high court had rejected her plea by stating that since she was a “minor,” her case would be handled in accordance with the Juvenile Justice (Care and Protection) Act, 2015. It was noted that she did not want to join the shelter home.
Advocate Anandita Pujari, representing an intervenor in the case, expressed a similar viewpoint. She highlighted the need for clarity and uniformity in addressing conflicts between personal laws and acts of Parliament.
The bench acknowledged that the question of law is significant and stated that it will address the matter. Advocate Dushyant Parashar expressed his willingness to help on this issue, with the help of which the court will render its verdict.
The bench informed that it will thoroughly examine all aspects of the case after reviewing the affidavit submitted by the girl.
On September 10th, 2019, the Supreme Court agreed to consider the plea of the Muslim girl who was directed to reside in a shelter home for women.
In her plea to the Supreme Court, the girl stated that according to the Mohammedan Law, once a girl reaches the age of puberty (which is considered to be 15 years), she becomes capable and mature enough to make decisions for her life and has all the right to marry whomever she chooses.
The Supreme Court agreed her plea and issued a notice to the Uttar Pradesh government, seeking its response on the matter.
The girl argued in her plea that the high court failed to recognize that her ‘nikah’ (marriage) is in accordance with Mohammedan Law(personal laws) and that her right to life and liberty should be protected at all costs. According to her plea, she is in love with the man she is married to and they performed all the necessary ‘nikah’ ceremonies in June 2019 in accordance with the Mohammedan Law. Following the police complaint lodged by her father, the girl provided her statement before a magistrate, stating that she had willingly married the man and desired to live with him. However, the trial court ordered that she be placed under the care and protection of the child welfare committee until she reaches the age of 18. Looking at a previous 2018 SC judgment, the plea has said the girl may be allowed to lead conjugal life with her husband. The plea said that the “high court ought to have appreciated the statement of the girl made under section 164 CrPC, wherein the girl has explicitly expressed her desire to stay with her husband and further has explicitly stated that she married out of her free will and none of the family members of her husband has enticed her”.
Suggestions
The government’s proposal to raise the minimum age of marriage for young women from 18 to 21 has raised concerns about its impact on women’s empowerment in India. While the intention behind this move is to address issues related to early motherhood, nutrition, and maternal mortality, it is important to consider the broader implications.
Early marriage in India is deeply rooted in social norms that associate women’s honor, safety from sexual violence, dowry practices, and prevention of elopement with early marriage. Raising the minimum age alone is unlikely to address these complex social norms and beliefs.
Implementing such a change would potentially criminalize the families of the majority of women (63%) who currently get married before the age of 21, particularly those from poor and marginalized communities. This could have unintended consequences and further marginalize these communities.[9]
In the case of Shoukat Hussain and Fauzia, who approached the high court seeking protection for their marriage, the court ruled in their favor. The couple argued that the girl’s family objected to the marriage due to differences in caste and the age gap between them.[10]
Justice Alka Sarin, in granting protection to the couple, stated that under Muslim personal law, the girl and the boy are considered to be of marriageable age. This implies that the court recognized their right to marry based on their personal law, despite objections raised by the girl’s family.
It’s important to note that personal laws in India can vary based on religious communities, and the court’s decision, in this case, was specific to the context of Muslim personal law.
There is no clear suggestion as to what can be done on an individual level to prevent this clash. We can only wait for the higher courts to come to a point where both problems can be addressed effectively.
Conclusion
By now, it is evident that there is a visible conflict between preventing child marriages and upholding the freedom to profess our religions. The question that now arises is whether violating personal laws will bring a change big enough to effectively stop child marriage in India. If yes then there should not be any issue in doing so. But on the other hand, if that children are being wed to each other then what is the problem in letting the personal laws prevail?
This might bring up the question that doing so will give people an open license to get their children married. If this happens then we need to prove that the general laws are indeed effective.
But until then the conflict will continue
AAHANA MALIK
CHRIST DEEMED TO BE UNIVERSITY DELHI NCR
[1]: Articles 25-28, Constitution.
(January 21, 2020), https://blog.ipleaders.in/right-to-freedom-of-religion-articles-25-28/
[2] MARRIAGE IN INDIA,(February 14, 2015), By Shivani Gupta, HNLU Raipur
[3] The Constitution of India
[4] Child marriage threatens the lives, well-being and futures of girls around the world.
[5] The Child Marriage Restraint Act, 1929, Ministry of women and child development
[6] Muzaffar Ali Sajjad And Ors. vs State Of Andhra Pradesh on 9 November, 2001 Andhra Pradesh High Court, India
[7] https://economictimes.indiatimes.com/news/india/in-case-of-conflict-between-personal-law-and-act-of-parliament-which-will-hold-the-field-sc-to-examine/articleshow/98824172.cms?from=mdr
[8] In case of conflict between personal law and act of Parliament, which will hold the field? SC to examine
SECTIONS – Ibid
[9] 5 Reasons Changing The Minimum Age Of Marriage Is A Bad Move Gender Justice Asmita Ghosh (10 Nov, 2020)
https://www.oxfamindia.org/blog/5-reasons-changing-minimum-age-marriage-bad-move
[10] HC grants protection to 17-year-old girl & her spouse as Muslim personal law allows marriage after age 15. Prohibition of Child Marriage Act is silent on personal laws,APOORVA MANDHANI(13 February, 2021 11:30 am IST)
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Very well put in a systematic and easy-to-read manner! 😀