Introduction
The menace of child marriage has been deeply rooted in the Indian society, primarily emanating from male patriarchy and parochialism which considers daughters as ‘paraya dhan’ and a burden on the family. It is discharged by marrying off the daughters at an extremely tender age. The State has, in the aftermath of Phulmonee’s case[i] which pertained to unfortunate death of a 10 year old girl due to brain hemorrhage resulting from forced sexual intercourse, intervened over time to control this societal evil with several legislations including The Hindu Marriage Act, 1955 [HMA], The Child Marriage Restraint Act, 1929 [CMRA], The Prohibition of Child Marriage Act, 2006 [PCMA] but not without umpteen inconsistencies giving rise to various important questions of law, a few of which shall be dealt with during the course of the paper. Court on its own motion ( Lajja Devi) v State[ii] is one such case which not only deals with the issue of Child Marriage but also brings forth certain other complexities which it entails especially when the marriage is against the wishes of the parents.
The case clubs a bundle of similar petitions and was referred to a larger bench of the Delhi High Court. Lajja devi, the mother of the girl who eloped with a man when she was aged thirteen years, wrote a letter to the court after which the court took up as a writ petition. The FIR was lodged based on the information so received and the man, with whom the girl was found living with and married, was arrested for kidnapping. The girl confessed under Section 164 of Crimial Procedure Code, that she left her parental house out of her own free will. Further, she refused to stay with her parents apprehending forced marriage with another man and was accordingly sheltered in Nari Niketan. The husband’s family also wanted her custody while her husband was in judicial custody.[iii]
The paper evaluates women rights jurisprudence through five contemporary legal issues that have been insufficiently dealt with in Lajja Devi and have arisen post the passage of Prevention of Children from Sexual Offences Act, 2012 [POCSO]. Part I discusses the infirmities of the judgment and, firstly, evaluates the legal standing of the ruling Delhi High Court in Lajja Devi on whether the marriage of a boy of less than twenty one years of age with a girl of less than eighteen years is a valid marriage and can the custody of the said girl be given to the husband and concludes that the judgment, howsoever well intentioned in curbing the menace child marriages by holding them voidable after PCMA is bad in law. Secondly, it highlights the missed opportunity of the court in bringing emancipation of minors into Indian jurisprudence and suggests the circumstances under which such emancipation be allowed, keeping in mind the principle of best interests of the child and tries to answer whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody.
Thirdly, whether the minor can be kept in the protective custody of the State if the answer of issue two is in affirmative. Part II of the paper discusses the progressive steps towards women rights. Firstly, it shows that the repercussions of the judgment with respect to ruling on marital rape of minors under eighteen voids the immunity accorded to husbands for such acts after passage of Criminal Amendment Bill, 2013. Lastly, the paper highlights the impact of POCSO in tackling the root problems with child marriage of early pregnancy, damage to physical, mental and reproductive health and shall act as an effective deterrent against the child marriage by virtue of enhanced and severe punishment.[iv] It also suggests recommendations of amendments to close the gaping anomalies and bring it closer to what Law ought to be.
Part I
Whether a marriage between a boy of less than 21 years of age with a girl of less than 18 years is a valid marriage and can the custody of the said girl be given to the husband?
This question was sought to be clarified by the full bench as three other division bench orders of the Delhi High Court[v] had upheld the validity of aforesaid marriages which was differed by the division bench of Lajja devi[vi] as the material difference that PCMA makes child marriage is that it makes it a cognizable and non- bailable offence,[vii] punishable up to two years[viii] had not been taken into account.
The rationale provided by the courts was that, Section 11 of HMA[ix] declares that void marriages are those, which are in contravention of only section 5 (i), (iv) and (v) and not section 5 (iii)[x] and section 12 (1) (b) declares marriages voidable, inter alia other conditions, in contravention of section 5(ii), therefore, marriages in contravention of section 5(iii) i.e. solemnized between a man of less than 21 years or girl of less than 18 years is neither void nor voidable as declaring it such would be in contravention to the intention of legislature which specifically ruled out the voidability of section 5 (iii).[xi]
But this reasoning has been specifically rejected by full bench of Madras High Court[xii] which was a departure from the position held by a string of cases,[xiii] by which marriage of a child was treated all along as valid. Even Hindu Minority and Guardianship Act provided for husband to be the natural guardian of a wife. The purpose, as discussed in that judgment, for enacting the PCMA has been to surpass all barriers of personal laws as the act is secular in nature.[xiv] It observed that under this Act all child marriages are prohibited. Section 3 of this Act[xv] makes them voidable at the option of the child and if a female within two years from the date of attaining 18 years and a male 21 years, do not file a petition for annulling the marriage, then it shall be considered as a valid marriage. “Parliament was cognizant of the provisions of Sections 5, 11, 12 and 18 of the HMA at the time of enactment of PCMA and intended to allow it to override those aforementioned inconsistent provisions of HMA along with the personal law which is manifest clearly from the statement of Objects and Reasons of the PCMA.”[xvi]
Although the in court in Lajja Devi has taken the stand taken by the Madras High Court, which to my mind is close to what the law on this matter should be, however, it is unfortunately not the correct position in law and suffers from its own lacunae. The court discussed Jitender Kumar Sharma v. State and Another[xvii] in which the court took view of PCMA too and held that a marriage has to be primarily judged from the standpoint of personal law. Therefore, a Hindu marriage, not void under the HMA, would continue that way provided that the provisions of Section 12 of the PCMA[xviii] have not been violated.
Therefore, the contention comes down to whether the provisions of personal law should be applied to declare such a marriage as valid or whether PCMA would over ride HMA. But former position will be severely hampered if the ruling of the courts in both the cases that PCMA is a secular law is true. Then all child marriages, regardless of them being protected under the shelter of personal law, will be voidable.
It is submitted that PCMA is not a secular law for two reasons. Firstly, the act nowhere mentions that it intends to over ride all personal laws. The courts in both Jitender Kumar and Lajja Devi has interpreted it as such and, if I may say so, have gone overboard by reading a excessively into the object of the act and its applicability to ‘all citizens of India’, which in no way means that it gets precedence over personal laws. Secondly, the judgment itself mentions that the status of such a marriage under Muslim Personal Law was kept outside the ambit of the case as it recognizes marriages as valid of those minors who have attained puberty.[xix] This is self contradictory as on one hand, the judgment claims the PCMA to be secular and on the other hand reduces the extent of its applicability on Muslim personal law. Hence it cannot be taken as a ratio and consequently it is not a secular law and the rationale of Jitender Kumar holds and marriage has to be primarily be judged from the standpoint of personal law.
Furthermore, there has been ‘tacit’ endorsement of the legislature manifested by various provisions of several statutes including section 375 IPC,[xx] Indian Majority Act, 1875 which even though lays down eighteen years as the age of majority but excludes, inter alia, marriage divorce and adoption as these matters are governed by the personal law and panoply of others.[xxi] Therefore child marriage continues to be valid under HMA and the Delhi High Court erred in establishing the correct position of Law by not taking into consideration the aforementioned contentions.
However, it is submitted that what the court upheld is a step closer to what law ought to be. To bring it in conformity with United Nation Convention on Rights of Child, It is recommended that the legislature needs to amend all the acts which gives tacit endorsement to child marriage.[xxii] Further, HMA and PCMA should be amended to make all marriages under the age of sixteen to be void ab initio and between sixteen to eighteen as voidable at the option of parties,[xxiii] prospectively,[xxiv] Common marriage age for both males and females, as there is no scientific reason for this difference,[xxv] compulsory registration of marriages[xxvi] without which marriage cannot be solemnized, creation of rehabilitation fund for providing food, health, education and shelter, for the victims of child marriages and “coordination of officials of Panchayat, Tehsil, District and State levels, social groups, NGOs and agencies.”[xxvii]
Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?
Section 6(c) of the Hindu Minority and Guardianship Act, 1956[HMG] prescribes husband as the natural guardian of a married woman. As established earlier, since marriage under HMA is valid as of now, it was argued in Lajja Devi that the husband has primary right over custody of the girl, despite him himself being a minor, if at all. The court rejected this argument by citing a further provision i.e. section 13 of HMG.[xxviii] It lays down that determination of custody is dependent on the interest of the child which is paramount.[xxix] Guardianship is not a matter of entitlement as prescribed by the HMG but a creature of judicial discretion which balances several odds to determine the rightful guardian keeping welfare of the child in mind.
The severe repercussions of child marriage are not hidden. It impacts the mental, physical and reproductive health of the girl who is, more often than not, forced into sexual intercourse at a very tender age, even bearing a child when her body barely supports it. It perpetuates gender inequality stemming from deprivation of education. It even results in higher mortality rates. The girl is not mature which leads to degradation of her status and her being submissive, It being a cause of domestic violence.[xxx] Hence, it is clear that giving custody of a minor girl to the Husband’s family is, not necessarily in the best interest of the girl.
But the situation gets complicated in which the girl elopes with a guy out of her own free will and does not wish to go back to her parental home. Under such circumstances, the court has held that there cannot be any strait jacket formula rather it should be left at the facts and circumstances of each case including the condition that the “husband would not be allowed to consummate the marriage.”[xxxi] It is submitted that for the reasons so mentioned, the court has rightly reserved the final discretion with itself. However, when we compare marriage laws for minors in other countries like in the United States of America, where the age of majority and laws relating to marriage are different in each state, a minor can only get married with the consent of their parents or lawful guardian and by appearing before the court if they have crossed the minimum marriageable age. This gives them all rights that adults enjoy except voting and the right to purchase alcohol. Such emancipation is revoked once the marriage is revoked and the minor is again in the custody of their lawful guardian. Such a provision would be a welcome move in India as it would give a minor who is willing to enter wedlock, the right to do so and also enjoy other rights, such as, the right to enter into a contract. This would go a long way in promoting their independence, especially in case of women, who would not have to be subject to their husband’s decisions and custody. The feasibility of such a provision should be dealt with, by the Law Commission of India as it could go a long way in strengthening the prevalent law that does give the court discretion to validate the marriage of a minor.
The Court in Lajja Devi tried to club the second as well as the third issue, whether a minor girl can be kept in the protective custody of the State if emancipated and answer them together as the satisfaction of the third issue was contingent on the second. What has happened is that the court substantially digressed from the second issue which actually was about the reaching of age of discretion by minor which was narrowed down to a particular instance of guardianship claims of the husband. Due to which, the court somehow forgot to answer the third issue completely that is whether a minor girl can be kept in protective custody of the state.
While answering such a question it needs to be kept in mind that the age of discretion to leave the lawful guardianship will extend not only in cases of determining custody of girl in child marriage, but also in other instances where the child consciously decides to leave owing to circumstances such as torture, exploitation among others. Therefore, the either court or legislature has to decide minimum age before which such discretion cannot be applied under no circumstances except proved misconduct by guardians. Further, if it is proved or the child has reached the age of discretion, then it is incumbent upon the state to not deny protective custody.
Part II
Progression towards women rights
Whether the FIR under sec 376 (rape) IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
Lajja Devi recognizes the anomaly created between section 375 (d) of Indian Penal Code [IPC][xxxii] and PCMA. Even though the age of consent after the new amendment bill has been raised to 18 years, but the IPC does not penalizes a man who engages in sexual intercourse with his wife or even commits rape above the age of fifteen years. This exception for marital rape creates problem for implementation of PCMA which is a step towards rooting out child marriage as a whole. The issue of age of consent wasn’t for intercourse deliberated upon as it was outside the ambit of this judgment.
It is submitted that the judgment has barred the exception to marital rape under the age of eighteen years. The court had to decide on whether the FIR under section 376 can be quashed if the under aged girl by her own free will has chosen to leave and live with the boy. It has been held by the court, by giving a restricted interpretation to the section to subsequently mean, and it shall be argued, that there is no exception to marital rape below the age of eighteen years.
The court held while deciding whether or not to quash the FIR that there exist no strait jacket formula when it comes to cases where the girl herself has eloped with the boy as it involves, generally, inter-religion, inter-caste and other social-cultural prejudices from the families putting the courts in a predicament. It observed that “interest of the boy and the girl, their level of understanding and maturity, whether they understand the consequences, the attitude of the families” should be the determining factor. It averred that freedom of a girl to choose who she wants to live with should be given due consideration and putting her in special homes for extended period of time amounts to confinement.[xxxiii]
Following up on the reasoning the court has made its stand aptly clear that if the girl is under sixteen years of age, the consent does not matter even if she is married and charge sheet cannot be quashed. Under rare circumstances when the girl subsequently after attaining majority reiterates her consent only then the court within its power can quash the proceedings.
It has to be kept in mind that the judgment was passed when the age of consent was sixteen years i.e. before the passage of Criminal Law Amendment Act, 2013 which raised the age of consent to eighteen years.[xxxiv] Therefore when the court stipulates the reiteration of consent after attaining majority, the new minimum age of consent has to be considered which is eighteen years. Consequently, the blanket exception of marital rape (on wives above the age of fifteen years) does not apply to the minors under the age of eighteen who have the right to approach the court for justice.
Lastly, aforesaid argument is further substantiated by passage of POCSO after the delivery of judgment section 2(d) of the act defines child to be below eighteen years of age. It prohibits and penalizes, under section 7, any act with sexual intent including touching of penis, vagina breasts is termed as sexual assault punishable with up to 5 years of imprisonment.
Section 4 punishes penetrative sexual assault with up to 7 years of imprisonment but the most ground breaking provision is section 5 (j) (i) and (ii) constituting aggravated sexual assault by including the biggest ill effects of child marriage affecting the girl, that is, physically incapacitating child or degradation of mental health or making the girl child pregnant, punishable up to ten years of imprisonment.
What POSCO has effectively done is that it has negated the conjugal rights of a husband after the marriage which is almost inevitable therefore made the marriage itself a deterrent under eighteen years of age and taken into account the well being of girl child and overturned marital rape as an exception for the minors.
Conclusion
The Delhi Court has delivered a progressive judgment to uphold the rights of the girl child. It may have suffered from infirmities in interpreting the correct position of law with respect to child marriages to be voidable by construing PCMA as a secular law instead of looking at them from the standpoint of personal laws but the interpretation is closer to what law ought to be. For that, the legislature has to step in and make the required amendments to several legislations that have been mentioned that give tacit acceptance child marriage, declare child marriage void ab initio, compulsory registration and several other recommendations suggested by this essay.
The court has kept the discretion to award the custody of the child with itself as it varies under different circumstances which have to be factored in by the court. But One of the biggest lead that the court has taken is declaring marital rape exception not applicable for child marriages which is further supported by the coming into existence of POSCO which has diminished the conjugal rights under the child marriage violation of which will result in severe punishment and adequate deterrent. This judgment can prove as a stepping stone for removal of two major injustices faced by the women, child marriage and marital rape.
References
[i] Queens Empress v. Huree Mohan Mythee, XVIII Indian Law Reporter (Calcutta) 49 (1891).
[ii] Court on its own motion ( Lajja Devi) v State And Ors,2013 Cri LJ 3458.
[iii] Id.
[iv] Id.
[v] Neetu Singh v. State and Ors. 1999 (1) JCC (Delhi), Manish Singh v. State Govt. of NCT and Ors (1) CCC (HC) 208, Sunil Kumar v. State NCT of Delhi and Anr. 2007 (2) LRC 56 (Del) (DB).
[vi] Court on its own motion (Lajja Devi v State), Writ Petition (Crl.) No. 338/2008.
[vii] Section 9, PCMA,2006, “ Punishment for male adult marrying a child-Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one Lakh rupees or with both.”
[viii] Section 15, PCMA, 2006, “Offences to be cognizable and non- bailable–Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 od 1974), an offence punishable under this Act shall be cognizable and non bailable.”
[ix] Void marriages. – “Any marriage solemnized after the commencement of this Act shall be null and void and
may, on a petition presented by either party thereto1[against the other party], be so declared by a
decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.”
[x] “The bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage.”
[xi]Supra note 2.
[xii] T. Sivakumar v. The Inspector of Police, AIR 2012 Mad 62,
See also, Amnider Kaur and Anr. v. State of Punjab and Ors, 2010 Crl.L.J. 1154
[xiii] Durga Bai v. Kedarmal Sharma, 1980(Vol. VI) HLR 166, Shankerappa v.Sushilabai, AIR 1984 Kar 112
Smt. Lila Gupta v. Laxmi Narain and others, 1978 SCC (3) 258, Rabindra Prasad v. Sita Dass, AIR 1986 Pat 128, William Rebello v. Angelo Vaz, AIR 1996 Bom 204
[xiv] Id.
[xv] “Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage. Provided that 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.”
[xvi] Supra note 12.
[xvii] Jitender Kumar Sharma v. State and Another, INDLAW DEL 1904
[xviii] “Where a child, being a minor(a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; Or (c) 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”
[xix] Supra note 2, at page 12.
[xx] Sexual intercourse with wife who is under 15 years of age does not amount to rape.
[xxi] 205th Report of the Law commission of India, Proposal to Amend The Prohibition Of Child
Marriage Act, 2006 And Other Allied Laws, (2008).
[xxii] Apart from the ones already mentioned, Dowry Prohibition Act, 1961, Criminal Procedure Code, 1973 and others too mentioned in 205th report of The Law Commission of India at page 40.
[xxiii] Deep Ray, “Child Marriages and the Law”,
(available at: https://www.researchgate.net/publication/228226362_Child_Marriage_and_the_Law , Last accessed: 28th July 2014) “ Child marriages post consummation are very difficult, if not impossible, for girls to be denied. Therefore, it is in keeping with the social reality that such marriages after the age of sixteen are not declared void.”
[xxiv] Parliamentary Standing committee on Personnel, Public Grievances, Law & Justice on referral of Prevention of Child Marriage Bill, 2004.
[xxv] Supra note 21.
[xxvi] The Supreme Court observed in the case of Seema v. Ashwani Kumar, 2007(12) Scale 578.
[xxvii] Supra note 21.
[xxviii] (1)“Welfare of minor to be paramount consideration.-In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.”
(2)“No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”
[xxix] Kumar V. Jahgirdar v. Chetana K. Ramatheertha, AIR 2001 SC 2179
[xxx] Association for Social Justice & Research v. Union of India & others, [W.P. (Crl.) No. 535/2010] decided on 13.5.2010.
[xxxi] Supra note 2.
[xxxii]Section 375 (d) IPC, Exception 2, “Sexual intercourse or sexual acts by a man with his own wife not being under fifteen years of age, is not rape.”
[xxxiii] Supra note 2.
[xxxiv] Judgment was pronounced on 27th July 2012 whereas the bill came into force in April 2013.