Author: Vanya Francis, II year of B.A.,LL.B.(Hons.) from Hidayatullah National Law University, Raipur.
INTRODUCTION
Statistics reveal that child marriage is prevalent in India as if it is some usual socio-cultural practice. According to The International Centre for Research on Women, a UNICEF publication, India’s child marriage rate is approximately 47% from sample surveys of 1998.[1] In 2005, the United Nations reported the rate at 30%.[2] India’s 2001 census report stated that there were zero married girls below the age of 10, 1.4 million married girls out of 59.2 million girls aged 10-14, and 11.3 million married girls out of 46.3 million girls aged 15-19.[3]Jharkhand has emerged as the state with highest child marriage rates in India (14.1%), while Kerala is the only state where child marriage rates have increased in recent years.
Irrespective of the laws prohibiting child marriage and programmes promoting education and skill learning for children, especially for young girls, many people are still resorting to this age-old social evil. This practice is most prevalent among those families which are socially and economically weaker and often see daughters as a mere financial burden on themselves. Many a time, people also take the advantage of their law, deeming it to be having a much superior authority over other secular laws, and become a part of this social menace. This article will address the interplay of Muslim personal law and the secular law in the matter of child marriage.
SECULAR LAW PROHIBITING CHILD MARRIAGE
The foremost legislation to prohibit child marriage was The Child Marriage Restraint Act, 1929. But due to its flaws and ineffectiveness, the Government of India decided to initiate stricter, much-revised and reformed legislation- The Prohibition of Child Marriage Act, 2006 (PCMA). The change in its name was enough to reflect the intent of the Government that it no longer just wanted to restrict child marriages, but altogether prohibit this practice in India.
This Act kept the ages of adult males and females the same as the 1929 Act but made some significant changes to further protect the children. According to The Prohibition of Child Marriage Act, 2006, child marriage is defined as when either of the contracting parties to the marriage is a child.[4] The Act provides for the definition of a child as a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.[5]
In brief, the Act provides for certain essentials to facilitate the prohibition of child marriages. First, minor boys and girls forced into child marriages have the recourse of voiding their marriage up to two years after reaching adulthood[6], and in certain circumstances, marriages of minors can be null and void before they reach adulthood.[7] Second, all valuables, money, and gifts must be returned if the marriage is nullified. In such a case, the girl must be provided with a place of residency until she marries or becomes an adult.[8] Third, children born out of child marriages are considered legitimate, and the courts are expected to give parental custody with the children's best interests in mind.[9] Fourth, any male over 18 years of age who enters into a marriage with a minor or anyone who directs or conducts a child marriage ceremony can be punished with up to two years of imprisonment or a fine.[10]
Thus, under this Act, one witness how the Central Government not only aims to prevent child marriages but also prescribes punishment for those who indulge in such practices and forcefully marry off their young underaged children. The Act also goes on to substantiate on the remedies for the children who are a victim of child marriage.
TUSSLE BETWEEN PERSONAL AND SECULAR LAW
Since the pre-British times, people of the Indian subcontinent are regulated by their laws in matters such as marriage, inheritance, succession, divorce, maintenance, etc. Similarly, Muslims are also governed by their laws.
The sanctity or authority of personal law is such that it often overrides secular laws on similar issues. For example, before the Shah Bano case[11], divorced Muslim women could not seek maintenance from their husband beyond the iddat period. There was no uniformity in the remedy available to women in terms of maintenance. The way Hindu women were protected by The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956 or other secular laws, Muslim women were being heavily discriminated against at the hands of their laws and were therefore deprived of seeking maintenance. But the Shah Bano judgement filled them with a sense of optimism, which was ultimately protested against by the Muslim Board as it was adamant in strictly following the rules of maintenance given in the Shariat.[12]
Similar reservations have been witnessed by the Muslim Community against The Prohibition of Child Marriage Act, 2006. Time and again, they have protested against the Act for violating their right to practice their religion. And owing to the similar cause, the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act) was enacted wherein marriage and the dissolution of marriage, where the parties are Muslim, would be based on Muslim Personal Law. The Muslim Personal Law holds that their law in India does not provide for any specific minimum age for marriage. It states that a girl becomes of marriageable age when she attains puberty or completes 15 years of age. There is a presumption that a minor attains the age of puberty when she becomes 15 years old. A girl, who has not attained puberty, or who is not of sound mind, can be contracted into marriage by her wali (guardian). The only remedy the law provides to the girl is through the Dissolution of Muslim Marriages Act, 1939. Section 2 (vii) states that if a minor girl under the age of 15 years is married under Muslim law, she can obtain a decree of dissolution of marriage before she attains the age of 18 years provided that the marriage has not been consummated.[13]
Even though the PCMA is a secular law, it stands in conflict with the Muslim Personal Law. As per the latter, a girl can marry at the age she attains puberty, which is presumably 15 years as affirmed by the Delhi High Court in Mrs Tahra Begum v. State of Delhi & Ors.[14] On the other hand, under PCMA, the minimum age of marriage for a girl is 18 years. While enacting the PCMA in 2006, the legislature should have amended the Muslim Personal Law to resolve the inconsistency between the two. However, by not doing so, it created a lot of dilemma as to which law will hold a superior authority. Therefore, in the case of Independent Thought vs Union of India, the Apex Court held that the separate and contradictory provisions of the personal laws make a mockery of The Prohibition of Child Marriage Act, 2006. Due to this loophole in legality, even the highly progressive and educated states like Kerala succumb to such social mal-practices of child marriage.
VARIOUS JUDGEMENTS ON THE MATTER
The Delhi High Court has actively ruled that The Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs every citizen of India. The ruling stated that an under-age marriage, where either the man or woman is over 16 years old, would not be a void marriage but a voidable one, which would become valid if no steps are taken by such a court as has the option[s] to order otherwise. In case either of the parties is less than 18 years old, the marriage is void, given the age of consent is 18 in India, sex with minors under the age of 18 is a statutory crime under Section 376 of Indian Penal Code.
The Punjab & Haryana High Court, in Mohd. Samim v. State of Haryana[15] held that the Shariat Act is special, whereas, the PCMA is a general Act. The general provisions would yield to specific provisions, and the Special Act would have predominance over the general Act. Thus, it is legally feasible in India for a Muslim girl below 18 to get married, as the marriages are governed by Muslim Personal Laws. However, the Gujarat High Court has stated that the PCMA applies to Muslims too.[16] Similarly, the Madras High Court in M. Mohamed Abbas v. Government of Tamil Nadu[17] held that the PCMA is not against the Muslim religion and would not be detrimental to the Muslim community because the Act would enable Muslim girls to get proper education, empowerment and also the opportunity of understanding how to lead proper marital life like other girls, and therefore cannot be held to be an act against the Muslim community in general.
This tussle between the two laws and the dilemma faced by various courts was finally put to a halt by the Supreme Court in the case of independent Thought vs Union of India.[18] Justices M B Lokur and Deepak Gupta pronounced that only one remedy is provided to the girls who are married off before they turn 15 years old, under the Dissolution of Muslim Marriage Act, 1939. Section 2 (vii) of the said Act states that such a girl is required to repudiate her marriage before she attains majority and she can only repudiate the marriage if the marriage has not been consummated. So, in case the marriage has been consummated, even if the husband has forcible sex with such a girl, she will be deprived of her right to get the marriage annulled.
Elaborating on the anomaly, the bench said even in a marriage which is void under PCMA, the girl will have to obtain a decree for dissolution of her marriage, that too before she attains the age of majority and only if the marriage has not been consummated.
In his concluding statement, Justice Gupta remarked that the PCMA is a secular Act applicable to all. It is a special Act dealing with children, the provisions of this Act will prevail over the provisions of the personal laws, insofar as children are concerned.
CONCLUSION
People in India are mostly governed by their law in the matters of marriage, divorce, succession, etc. However, one simply cannot turn a blind eye to the constitutional rights and other secular laws. They cannot be undermined or overshadowed by the personal laws of the parties. It is inevitable that personal laws should be constitutionally valid and cannot altogether override what has been enshrined in the Constitution of India. In a case involving triple talaq in 2017, the Allahabad High Court had noted that personal laws cannot override constitutional fundamental rights.[19]Personal laws cannot be constructed in a manner that they contradict the Constitution.
The Law Commission of India in its 2018 Consultation Paper on Reform of Family Law had stated that personal laws cannot be codified in a way that contradicts the Constitution and the fundamental rights enshrined in it. The Commission also asserted that codifying discriminatory customs, irrespective of how common and acceptable they may be, can lead to the crystallisation of prejudices.[20]
The Supreme Court of India in Independent Thought v. Union of India and Anr recognised that child marriage is discriminatory and constitutes a violation of women’s and girls’ constitutional rights: it limits the equal benefit of the law and denies girls life of dignity and liberty. Child marriage infringes the right to health,[21] reproductive health,[22] survival of pregnancy and childbirth, all of which are recognised as subsets of the fundamental right to life under Article 21 of the Constitution. Therefore, the contention that marriage falls into the sphere of personal law, and thus Muslim Personal Law bodies should have the liberty to deal with such issues is untenable.[23]
[1] Child Marriage Fact and Figures, ICRW available at https://www.icrw.org/child-marriage-facts-and-figures/ (last visited on Dec. 17, 2020).
[2] United Nations Statistics Division, The World’s Women Report, UN SD, ST/ESA/STAT/SER.K/WWW/16/Rev.5 (22 April 2005).
[3]Table C-2 Marital Status by Age and Sex Subtable C0402, India Total Females Married by Age Group, 2001 Census of India, Government of India (2009).
[4] The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 2(b).
[5]The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 2(a).
[6]The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 3(3).
[7]The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 3(2).
[8]The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 3(4).
[9]The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 6.
[10]The Prohibition of Child Marriage Act, 2006, (Act 6 of 2007), s. 10.
[11]Mohd. Ahmed Khan v. Shah Bano Begum, 1985 (3) SCR 844.
[12] Simran, Case Analysis-Mohd Ahmad Khan v/s Shah Bano Begum, Legal Services India available at: http://www.legalserviceindia.com/legal/article-216-case-analysis-mohd-ahmad-khan-v-s-shah-bano-begum.html (last visited on Dec. 17, 2020).
[13]The Dissolution of Muslim Marriages Act, 1939 (Act 8 of 1939), s. 2 (vii).
[14] Tahra Begum v. State of Delhi & Ors, W.P. (Cri.) 446 of 2012 (Del. H.C.) (Unreported).
[15]Mohd. Samim v. State of Haryana,W.P. (Cri.) 532 of 2018 (P&H. H.C.) (Unreported).
[16]5 Circulate To All Judicial ... vs State Of Gujarat, R/CR.MA/8290/2015.
[17]M. Mohamed Abbas v. Government of Tamil Nadu, AIR 2013 Mad 237.
[18]Independent Thought vs Union of India,(2017) 10 SCC 800.
[19]Shayara Bano v. Union of India & Ors. (2017)9 SCC 1.
[20]Law Commission of India, Consultation paper on Reform on Family Law, (August 2018), available at http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf (Last visited on August 02, 2020).
[21]Aschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal & Anr, 1996 SCC (4) 37.
[22]Sandesh Bansal v. Union of India and Ors., (W.P. (C) 9061of 2008)(M.P. H.C.)(Unreported).
[23]Yash More and Shailendra Shukla, India’s Battle against Child Marriage – A Conflict of Laws, The Journal of Indian Law and Society Blog available at: https://jilsblognujs.wordpress.com/2020/08/26/indias-battle-against-child-marriage-a-conflict-of-laws/#_ftn15 (last visited on Dec. 18, 2020).