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Elephant in the room

This Article is authored by Advocate Anil Malhotra.

A Bill proposing to increase age of marriage for woman from 18 to 21 years was introduced in the Lok Sabha and then referred to a Parliamentary Standing Committee. The Prohibition of Child Marriage (Amendment) Bill, 2021 seeks to amend of child to mean “a male or female who has not completed 21 years of age.” It seeks to override personal laws of Hindus, Muslims, Christians and Parsis, as also the secular Special Marriage Act, 1954. By amending the definition of child in Section 2(a) of the Prohibition of Child Marriage Act, 2006, (PCMA), the Bill seeks to make the minimum age of marriage same for both men and women i.e. 21 years of age. A child marriage can be declared null and void by a Court, when either party to the marriage files a petition under the PCMA. This amendment is stated to be notwithstanding personal laws and customs of religious communities.

Presently, Hindu Marriage Act, 1955 (HMA) whilst prescribing the age of marriage for a bridegroom as 21 years and the bride as 18 years at the time of marriage, neither renders the marriage illegal or avoidable in case of marriage of minors. Hence, the marriage in violation of age condition does not affect the validity of the marriage. However, Section 18 HMA, prescribes a punishment for child marriages which may extend to 2 years rigorous imprisonment or with fine upto one lakh rupees or with both. Likewise, Muslim personal laws too, do not invalidate child marriages. Consequently, both under Hindu and Muslim personal laws, the child marriage remains valid. In this perspective, the laudable piecemeal amendment of PCMA to render child marriages void will be an exercise in futility, as both Hindu and Muslim communities governed by personal laws would have legislative protection for child marriages. Unless specific amendments are also made in Hindu and Muslim personal laws explicitly, making violation of age of marriage a condition to make the marriage illegal, the exercise is incomplete. Hence, making child marriages illegal and void under the PCMA alone or changing the age of marriage, achieves no goal or commendable object. It will become a dead letter in the statue book and as a ship set to sail without a course. The wholesome solution then may be to remain as it is or incorporate similar amendments in other existing laws for harmonious views.

The elephant in the room is the application of the child marriage law to Hindu and Muslim communities, as it may be interpreted to mean abrogation of their personal laws. Article 25 of Constitution guarantees freedom of conscience and free profession, practice and propagation of religion. Thus, will personal laws be whittled down. A sweeping statement in the PCMA amendment making child marriages “void” by reinforcing its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage, will only upset the apple cart but not overturn it. The PCMA is considered to be a special legislation to prevent child marriages. Its overriding general Hindu and Muslim laws with a sweeping clause, without amending Hindu and Muslim marriage personal laws, will only generate conflict.

It is also propounded that increasing minimum age of marriage may push many marriages to the brink of illegality and may adversely affect vulnerable sections of society. Till now, the HMA turns a blind eye to violation of age of marriage. Hence, by making marriage under 21 years invalid under PCMA, we are intending to deprive protection of personal laws and criminalize those who violate age of marriage. The Majority Act, 1875 fixes age of majority at 18. The minimum age of voting is 18. The Protection of Children from Sexual Offences Act, 2012 (POCSO) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA) define the child as someone below 18. The Right of Children to Free and Compulsory Education Act, 2009 defines a child between ages of 6 and 14 years. The Child Labour (Prohibition and Regulation) Act, 1986 prohibits engagement of adolescents under 18 years of age in hazardous occupations. Thus, clipping the definition of a child for marriage singularly ought not to deprive rights, enabled by other laws. The end cannot defeat the means.


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