Child Marriage in India: Void or Voidable

CHILD MARRIAGE IN INDIA: VOID OR VOIDABLE

BY: ROBIN PANDEY                                    February 16th, 2022

Child marriage in India is Cognizable offence under Section 10 of Prohibition of Child Marriage Act 2006, with rigorous jail term of 2 years and a hefty fine of upto 1 lakh rupees, but at the same time the marriage at the same time is not void or invalid. Section 2(b) of the Prohibitions of Child Marriage act, 2006 defines child marriage as, “a marriage to which either of the contracting parties are a child, and where according to the section 2(a) of the same act, a child is, a male has not completed 21 years of age, and a female, who has not completed 18 years of age. Ironically a 18 year old boy is considered smart enough to cast his vote for election of Prime Minister, but is not smart enough to choose his partner to marriage.

1. Decoding the Child Marriage from The Hindu Marriage Act, 1955

(A) Is Child Marriage Void according to Hindu Marriage Act 

 Under  Hindu marriage Act 1955, there are several conditions under  Section 5 of the act which are to be addressed while solemnizing a marriage between two hindus. Under Section 5(3), the age of male should be 21 years and that of female should be 18 years (similar to the prohibition of child marriage act). Section 11 of the HMA  talks about Void marriage, and clause of section 5 which are void are (1), (4) and (5) of the section. The clause (3) of section 5 which mentions the age of male and female is out of the scope of Section 11, that is void marriages, that  means Child marriage is not void according to Hindu marriage act. 

(B) Is Child Marriage Voidable according to Hindu Marriage act

Now as per the Section 12 of HMA, which deals with Voidable marriages under which clause (3) of section 5 has no mention in this Section either, that means it is also out of the purview of Voidable marriages.  Subsequently child marriages are neither Void nor Voidable according to Hindu Marriage Act. 

(C) Section 13 giving status of Marriage to child marriage

The Hindu Marriage act under Section 13(2) (iv) has given the status of Marriage to such marriages which is solemnised before wife attaining the age of 15 years, as they give the wife power to file for dissolution of her marriage by a decree of divorce. If there is a legal divorce petition that can be filed under Section 13(2) of the act, that means the marriage under 15 years has been recognized by the act. 

Neither being Void nor Voidable under HMA, yet it is punishable offence under section 18 of the same act. But the provision of punishment doesn’t  declare such marriage void in the eye of law, unless the provision says so.

2.  Decoding the Child Marriage from The Prohibition of child Marriage act, 2006

(A)  Section 3

The section 3 of Prohibition of Child Marriage Act talks about Child marriages to be voidable at the option of contracting party being a child. So the act has made it explicitly clear that such marriages done between children are voidable at the option of contracting party. To make it void a decree of nullity is required from district court. 

(B) Section 12, Void Marriages

Section 12 of the prohibition of child marriage act deals with void marriages, where child marriage has not been mentioned as to make them void clearly.

So according to The Prohibition of Child marriages only has made Child marriage voidable.

3. Judicial Pronouncements 

(A)  P. Venkataraman v State.

Any marriage solemnized in contravention of clause (3) of section 5 of HMA is neither void nor voidable, the only consequence being that the persons concerned are liable for the punishment under section 18 of the act and further if the requirements of clause (4) of sub section (2) of section 13 as inserted by the marriage laws (Amendment) Act 1976are satisfied, at the instance of the bride, a decree of divorce can be granted.

(B)  Independent Thought v. Union of India 

In the landmark judgement; the Supreme Court of India on 11th October 2017 ruled that sexual intercourse or sexual acts by a man with his minor wife would amount to rape for the purposes of Section 375 of the Indian Penal Code, 1860. The Court has read down Exception 2 to Section 375 which reads Sexual intercourse or sexual acts by a man with his own wife, the wife not being below 15 years of age, is not rape to hold that sexual activity with a minor would constitute rape and the exception will not be applicable in cases where the wife is between the ages of 15-18.

(C) Lajja v State 

The Delhi High court held that the PCMA prevails over personal laws.

(4) Conclusion 

The practice of child marriage has historical roots in India and it remains prevalent today. The reasons that have allowed this dangerous abuse of young girls to continue are that both cultures struggle with poverty and place too much emphasis on the purity of women while patriarchal views are heavily ingrained into societies.

Poverty causes the society to view the marriage of young girls as an economic transition rather than a violation of human rights. Monetary desires frequently motivate marriage, no matter of the child's best interest. The effects of child marriage can be felt across the world, with negative impacts on children's health and well-being and reinforcing the acceptability of violence. 

Hence, child marriage itself can be considered a form of violence against girls. Gender norms that devalue girls and ladies and drive the practice of the child marriage can also promote the acceptability of violence.