Shattered Innocence | The Critical Fight to Prohibit Child Marriages

Child marriage is a severe violation of human rights that severely impacts the psychological and physical well-being of children, especially girls. These young girls are often forced into early pregnancies, face significant social isolation, and are deprived of educational and vocational opportunities, thereby perpetuating the cycle of poverty. The immense burden of domestic work and the pressure to prove fertility further constrains their decision-making and limits their life choices. While boys are also affected, the prevalence and intensity of child marriage are disproportionately higher for girls, making them a uniquely vulnerable group that requires urgent attention and protection.

What is the purpose behind the Prohibition of Child Marriage Act, 2006?

The purpose behind the Prohibition of Child Marriage Act, 2006, (hereinafter referred to as the “Act”) is to prohibit the solemnisation of child marriages. There should not be a marriage of a child at a tender age as he/she is neither psychologically nor physically fit to get married.

Who is a child under the Act?

A child is someone who is under 21 years of age if they are a boy, and under 18 years of age if they are a girl.

What is child marriage?

Child marriage means a marriage where either of the persons getting married is a child.

What if a child marriage has been solemnized?

Every child marriage is voidable at the option of the contracting party who was a child at the time of the marriage.

Can a child file a petition to annul his/her marriage?

A petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage. If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer. This petition can be filed at any time but before the child filing the petition completes 2 years of attaining majority. Thereafter, the district court has the power to make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money.

 Can a female contracting party to a child marriage be granted maintenance and residence?

The district court can make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage. The quantum of maintenance payable will be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party. The amount of maintenance may be directed to be paid monthly or in lump sum and a suitable order can also be made as to the residence of the female contracting party until her remarriage.

What about custody and maintenance of children of child marriages?

The district court has the power to make an appropriate order for the custody of children born out of child marriage. While making an order for the custody of a child, the welfare and best interests of the child has to be given paramount consideration by the district court. An order for custody of a child may also include appropriate directions for giving to the other party access to the child in such a manner as may best serve the interests of the child. An appropriate order may also be passed for providing maintenance to the child by a party to the marriage or their parents or guardians.

 What is the legitimacy of children born of child marriages?

Every child begotten or conceived of child marriage before a child marriage has been annulled by a decree of nullity, is deemed to be a legitimate child for all purposes.

 Which court will have jurisdiction to grant the decree of nullity, maintenance and residence to female contracting party, custody and maintenance of children of child marriages?

The district court having jurisdiction over the place where the defendant or the child resides, or where the marriage was solemnized or where the parties last resided together or the petitioner is residing on the date of presentation of the petition, has the power to grant the decree of nullity; maintenance and residence to female contracting party; custody and maintenance of children of child marriages.

What is the punishment for male adult marrying a child?

Whoever, being a male adult above 18 years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees or with both.

What is the punishment for solemnizing a child marriage?

Whoever performs, conducts, directs or abets any child marriage will be punishable with rigorous imprisonment which may extend to 2 years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

What is the punishment for promoting or permitting solemnization of child marriages?

When a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, who does any act to promote the marriage or permits it to be solemnized, will be punishable with rigorous imprisonment which may extend to 2 years and will also be liable to fine which may extend up to one lakh rupees but no woman shall be punishable with imprisonment.

When can the marriage of a minor child be termed as void?

Where a minor is taken or enticed out of the keeping of the lawful guardian; or by force compelled, or by any deceitful means induced to go from any place; or is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

What are the powers of the court for prohibiting child marriages?

If on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of the Act has been arranged or is about to be solemnised, such Magistrate has the power to issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. The Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suo motu cognizance on the basis of any reliable report or information.

What are the powers of the District Magistrate?

For preventing solemnization of mass child marriages on certain days such as Akshaya Tritiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer. The District Magistrate shall also have additional powers to stop or prevent solemnization of child marriages and he has the power to take all appropriate measures and use the minimum force required.

Who are the Child Marriage Prohibition Officers?

The State Government appoints the Child Marriage Prohibition Officers having jurisdiction over the area or areas as specified by the Government. Such an Officer’s duties are to prevent solemnisation of child marriages by taking such action as he may deem fit; to collect evidence for the effective prosecution of persons contravening the provisions of the Act; to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnization of child marriages; to create awareness of the evil which results from child marriages; to sensitize the community on the issue of child marriages; to furnish such periodical returns and statistics as the State Government may direct, etc.

What was held in Association for Social Justice & Research v. Union of India?

In Association for Social Justice & Research v. Union of India, 2010 SCC OnLine Del 1964, it was held that girls who get married at an early age are often more susceptible to the health risks associated with early sexual initiation and childbearing, including HIV and obstetric fistula. Young girls who lack status, power and maturity are often subjected to domestic violence, sexual abuse and social isolation. Early marriage almost always deprives girls of their education or meaningful work, which contributes to persistent poverty. Child marriage perpetuates an unrelenting cycle of gender inequality, sickness and poverty. Getting the girls married at an early age when they are not physically mature, leads to highest rates of maternal and child mortality. Early marriage has also been linked to wife abandonment and increased levels of divorce or separation and child brides also face the risk of being widowed by their husbands who are often considerably older. In these instances, the wife is likely to suffer additional discrimination as in many cultures divorced, abandoned or widowed women suffer a loss of status, and may be ostracized by society and denied property rights.

How can child marriages be combated?

To effectively combat child marriage in India, a multifaceted approach is essential. This includes stringent enforcement of existing laws, such as the Prohibition of Child Marriage Act, alongside community education and awareness programs to shift cultural norms and perceptions. Empowering girls through education and economic opportunities is crucial, as it provides them with the knowledge and resources to resist early marriage. Collaboration between government agencies, NGOs, and local communities can strengthen support systems for at-risk children. Additionally, addressing underlying socio-economic factors, such as poverty and gender inequality, will help create an environment where child marriage is neither a necessity nor an option.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and he is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.