The Assam government, led by Chief Minister Himanta Biswa Sarma, has decided to repeal a 20th-century law that allowed child marriages within the Muslim community in the State.
To end a legal sanction to such ‘child marriages’ after 76 years of Independence, the State Cabinet has taken the decision to repeal the controversial Assam Muslim Marriages and Divorces Registration Act.
The legislation [pdf], which came into force in 1935, governs the registration of Muslim marriages and divorces in Assam. It calls for the appointment of ‘Muslim Registrars’ for the purpose of registering and keeping records of such marriages and divorces.
On 23.22024, the Assam cabinet made a significant decision to repeal the age-old Assam Muslim Marriages & Divorces Registration Act. This act contained provisions allowing marriage registration even if the bride and groom had not reached the legal ages of 18 and 21, as required…
— Himanta Biswa Sarma (@himantabiswa) February 23, 2024
As per a report by the Hindustan Times, there are currently 94 such ‘Muslim Marriage Registrars’ in Assam. State minister Jayanta Malla Baruah informed that the position will be dissolved after the Assam Muslim Marriages and Divorces Registration Act is repealed.
He added that the affected officials will be paid a one-time compensation of ₹2 lakhs for their rehabilitation.
The contentious law was enacted in the 20th century when the age of marriage for girls was 14 years and that of boys was 18 years of age, as mandated by the Child Marriage Restraint Act of 1929.
Legal sanction to ‘Muslim’ child marriage in India
Even though the age of marriage was raised to 18 and 21 for girls and boys respectively in India under the Prohibition of Child Marriage Act of 2006 [pdf], it had no bearing on the legal sanction of ‘child marriages’ for Muslims in Assam under the 1935 law.
In 2014, the Punjab and Haryana High Court ruled that the Prohibition of Child Marriage Act does not repeal the Muslim Personal law. 4 years later in 2018, the same court noted that a 15-year-old Muslim girl is competent to marry any man of her choice.
The High Court reiterated the same in a 2021 case. Essentially, only non-Muslims in India are thus liable to be prosecuted for child marriage under Section 10 of the Prohibition of Child Marriage Act with rigorous imprisonment of up to two years and a fine of up to ₹1 lakh.
Controversial provisions of Assam’s Muslim Personal law
While Muslim marriages in India draw legal sanction from the Muslim Personal Law (Shariat) Application Act of 1937 [pdf], such marriages in the State of Assam until now were governed by the Assam Muslim Marriages and Divorces Registration Act of 1935.
Section 8(1) of the Act says, “If the application be for the registration of a marriage by the parties to the marriage jointly: provided that if the bridegroom or the bride, or both, be minors, application shall be made on their behalf by their respective lawful guardians: and provided further that, if the bride be pardanasheen, such application may be made behalf by her duly authorised vakil.”
Section 10 (1) of the Assam Muslim Marriages and Divorces Registration Act further states,
“If the entry be of a marriage in a register in the Form (A) contained in the Schedule I to this Act by the parties to the marriage, or, I either or both of them be minors, by their lawful guardians respectively.”
The legislation also includes a form, listed under Schedule I, which says,
“5. Name of the guardian of the bridegroom (if the bridegroom be a minor) and that of the guardian’s father, with specification of the guardian’s residence, and of relationship in which he stands to the bridegroom. 6. Name of guardian of the bride (if she be a minor) and that of her father, with specification of his residence and the relationship in which he stands to the bride.“
The concept of ‘majority’ in Muslim personal law and the resulting problem
It is thus clear that the Assam Muslim Marriages and Divorces Registration Act of 1935 not only allows the marriage of Muslim individuals who have attained ‘majority’ but those of ‘minors’ with the consent of the family.
It is thus against the principles that govern the 21st-century world to prevent the exploitation of children below the age of 18. For instance, the ‘Convention on the Elimination of All Forms of Discrimination against Women’ provides for protection against child marriage.
To make things worse, the concept of ‘majority’ within the Muslim community is not the same as that of other Faiths in India. Muslim girls are assumed to have attained ‘majority’ once they hit puberty i.e. around the age of 15.
“Lawyer, legal writer and judge D.F. Mulla, in Article 195 of his treatise Principles of Mohammedan Law (1907) states that Muslim personal law (shariat) considers a girl capable of entering a contract of marriage when she attains puberty,” reads an article in The Leaflet.
Thus, the Assam Muslim Marriages and Divorces Registration Act of 1935 posed a dual problem – It allowed the marriage of Muslim girls who attained ‘majority’ in the light of ‘Muslim personal law’ and that of ‘minors’ (below the age of 15) with the consent of their ‘guardians.’
Both categories fall under the ambit of ‘minority’ in the personal laws of all other Faiths in India. It thus comes as no wonder that an expert committee on law prohibiting polygamy in Assam recommended the introduction of a minimum age to the archaic legislation from 1935.
The recommendation was meant to undo the existing incompatibility with the Prevention of Child Sexual Offences (POCSO) Act of 2012.
Congress govt did not remove child marriage provisions
The Assam government under Himanta Biswa Sarma has decided to completely scrap the Assam Muslim Marriages and Divorces Registration Act of 1935 and take one more step towards implementing the Uniform Civil Code (UCC).
Interestingly, the Congress government in Assam during the reign of Tarun Gogoi amended [pdf] the principal act of the controversial legislation.
However, instead of removing provisions pertaining to the marriage of minors, it increased the registration charges for such marriages from 4 annas to ₹10.
Crackdown on child marriages in Assam and the promise of UCC
In February 2023, the Assam government cracked down on the menace of child marriages in the State and arrested a whopping 3000 people in connection with it. In January this year, Himanta Biswa Sarma informed that Assam will also implement the Uniform Civil Code (UCC).
During a press conference, Himanta Biswa Sarma said, “We are waiting for the Uttarakhand Bill on UCC and after it is introduced, Assam will follow it with certain additional clauses.”
“We will go through the Uttarakhand Bill and see if public consultations will be possible within the next two to three months. If, however, certain complications arise, the matter will be discussed with experts and the Bill will be framed accordingly,” he continued.
“Everything depends on Bills passed by Uttarakhand and Gujarat, but Assam will definitely be the third state to bring a bill on the UCC,” the Assam CM stated, adding that the State will stop the menace of child marriage and polygamy.
