Prosecution As A Rule Not Desirable In Child Marriages; Need To Re-Imagine Remedie' : Interview With PLD

Live Law interviewed Madhu Mehra, lawyer heading the research and training initiatives at Partners for Law in Development (PLD), a legal resource group on women's rights and social justice in India. Excerpts from the interview on the topics of child marriage, proposal to increase age of marriage etc: There is an increasing attention on law relating to child marriage. Could you outline the scope of the legal regime on child marriage? There is more than one law relating to child marriage. A primary central law along with religion-based family laws and the penal laws have a bearing on child marriage. The main law, the Prohibition of Child Marriage Act (PCMA), 2006 sets out the minimum age of marriage at 18 years for a female and 21 years for a male, and defines child marriage to be where one or both parties are underage. It addresses three contexts connected with 'child marriage'. The first, in cases of an impending child marriage, law empowers certain categories of persons to prevent the marriage from being conducted. The second pertains to child marriages that take place in spite of the law. Here, the minor wife's matrimonial rights are secured, by treating the child marriage as valid though voidable. The law gives the minor party the right to separate and claim maintenance, and to nullify the marriage within two years of attaining the age of majority. The third situation relates to marriages involving kidnapping, enticement or trafficking, and these being grave offences are treated as void, having no validity in law. In general, although underage marriages are treated as valid, the adults involved in conducting such marriage may be prosecuted and punished – while the minor is protected by matrimonial rights and the choice of opting out of the marriage. The law designates district level functionaries, the Child Marriage Prohibition Officer (CMPO), to raise awareness and initiate legal action to prevent underage marriages. This central law has been amended in Karnataka in 2017 and Haryana in 2020, to declare all underage marriages as void without exception. That is to say, even when such marriages occur, they lack legal recognition. Other states are also considering making child marriages void. The religion based personal laws set out conditions (including minimum age) for a valid marriage, and all except the Parsi law, treat underage marriage as valid though voidable in limited circumstances. A marriage has to be valid under personal laws for it to be treated as valid under the PCMA. The offence of statutory rape is also relevant to child marriage. The Protection of Children from Sexual Offences Act (POCSO), 2012 as well as the Indian Penal Code (IPC), 1860 set 18 years as the age of sexual consent, which in effect, criminalizes sex with an underage wife regardless of consent. An adult or minor husband of a minor girl may face additional charges of statutory rape in a given case. How effective is the law? Since Partners for Law in Development has undertaken research on the functioning of the law in courts and outside it, could you highlight the findings of how the law works. The fact that child marriages remain prevalent is not sufficient to conclude that the law needs to be made stringent or declare child marriage void. Recommendations for law reform have to correlate with findings in relation to how the law is applied and implemented. PLD has undertaken three studies in relation to child marriage law. A case law analysis[1] spanning a decade (from 2008-17), shows that different legal remedies (constitutional, civil and criminal) are used largely against girls who elope, or marry against parental approval. We found that 65% of all the 83 cases in our data involve parents using the law against eloping daughters, seeking their custody, prosecuting the husband for rape and kidnapping, or seeking to nullify the marriage. The remaining 35% of the cases pertain to arranged marriage cases (of underage boys and girls), largely seeking to nullify marriages which have broken down because of domestic abuse, dowry or incompatibility. Cases attempting to stop an impending marriage from occurring are negligible. A key finding is that 'age' of marriage is not the primary driver of legal action, though it is necessary to gain entry into the legal system. Ironically, the law is used by the girls to assert the validity of their (choice) marriage, and only rarely, use law (with parental support) to nullify an arranged marriage that has broken down. That the girls have no access to the law in situations of forced marriage, a widespread reality in India, which is one of the biggest flaws in the law. There are scarcely any cases filed by the CMPO, which points to an ineffective implementation machinery. Despite a clear weaponisation of law by parents, the courts by and large uphold the choice...

Prosecution As A Rule Not Desirable In Child Marriages; Need To Re-Imagine Remedie' : Interview With PLD

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