In a recent ruling, the Supreme Court of India refused to extend the prohibition on child marriage to all faiths regardless of personal laws. The Central government sought that the Supreme Court issue a direction extending the application of the Prohibition of Child Marriage Act (PCMA) to all Indians regardless of their religion. However, the top court refused to do saying that a Bill regarding the same is pending before a standing committee and that there is confusion about the interface of personal laws with PCMA provisions banning child marriage.
Society for Enlightenment and Voluntary Action’s PIL highlights loopholes in PCMA and the prevalence of child marriages
The bench comprising Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra issued a 141-page ruling on the 18th of October on the petition filed by an NGO named Society for Enlightenment and Voluntary Action. The NGO contended that despite PCMA’s enactment 18 years ago, the rate of child marriages in India remains alarmingly high.
It accused authorities of failing to prevent child marriages and called for more effective enforcement mechanisms, awareness campaigns, the appointment of Child Marriage Prohibition Officers (CMPO), and comprehensive support systems for child brides, including education, healthcare, and compensation, so as to guarantee the protection and welfare of vulnerable minors. The petitioner NGO sought that the Supreme Court issue effective guidelines in this regard.
“The issue of the interface of personal laws with the prohibition of child marriage under the PCMA has been a subject of some confusion,” the court said.
The court further stated that the Central government had sent a note of submission filed after the judgment was reserved in the case requesting that the court rule that the PCMA prevails over personal law.
“There are conflicting pronouncements by various High Courts about the precedence of the Prohibition of Child Marriage Act (PCMA), 2006 over the personal laws. Hence, Hon’ble Court may consider issuing directions pronouncing that the PCMA will prevail over the personal laws governing marriage,” the Union government’s note read.
The Supreme Court noted that while the government’s note mentions conflicting court pronouncements, the details regarding the same were not furnished before the court.
Why Supreme Court refuse to extend the application of PCMA over all faiths?
It was observed that the Prohibition of Child Marriage (Amendment) Bill 2021, which seeks to change the PCMA to specifically provide that it will take precedence over multiple personal laws, was introduced in Parliament on December 21, 2021, and referred to the Standing Committee. “The issue, therefore, is pending consideration before Parliament,” the court said.
Notably, the top court observed that there are certain gaps in the PCMA and that since there is no constitutional challenge or a case in argument, it decided to make suggestions only for the Union government to consider and refrained from making any declaration.
“In the course of this judgment, we have traced the full breadth of the law against child marriage. The PCMA is the central legislation governing the issue on the subject. In light of the Constitutional guarantees accruing to children, we observe certain gaps in the PCMA. Absent a Constitutional challenge or a case being argued, we resist making declarations and restrict ourselves to making suggestions for the scrutiny of the Union. The legal question on these issues, however, is kept open if it were to come before a Constitutional court in an appropriate proceeding,” the court order states.
Supreme Court asks Parliament to consider banning child betrothals
The apex court also expressed concerns over the prevalence of child betrothals and said that marriages fixed in the minority of a child have the effect of violating their “free choice” and “childhood”. The court asked the Parliament to consider amending PCMA to prohibit child betrothals.
“The issue of forced marriage is intricately linked to child marriage, as both practices deny individuals, particularly minors, the fundamental right to make autonomous decisions regarding their lives. The imposition of forced marriage reflects the broader systemic issue of coerced relationships that deny the victims agency and autonomy. This lack of agency is heightened in the context of child marriage, where children are subjected to societal and familial pressures that undermine their ability to give informed consent,” the court said and called child marriages an ‘evil’.
Calling on the Parliament to prohibit child betrothals, the court said: “Lastly, we note that while the PCMA seeks to prohibit child marriages, it does not stipulate on betrothals. Marriages fixed in the minority of a child also have the effect of violating their rights to free choice, autonomy, agency and childhood. It takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency. International law such as CEDAW stipulates against betrothals of minors. Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA. While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination.”
The court also stressed the importance of consent of the parties entering in a marriage and cited several judgements wherein the courts reinforced the right to free and informed consent within the context of marriage. In addition, the court cited the relevant provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1975 to emphasise how child marriage frequently leads to violence against child wives. The court further noted that child marriage violates the right to education, the right to health, the right to childhood and the right to be informed, among others.
The bench further stated that child marriage violates the right to life and liberty enshrined in Article 21 of the Constitution.
Furthermore, the court pointed out the role of “patriarchy” in the context of child marriage. “In the instance of child marriage, the right to sexuality of a person is systematically dismantled. The assault starts with the sexualisation of the child at a tender age. As we have stated above, marriage is an institution with legal standing in which sexual conduct is legitimised and promoted by the State and society. Marrying in childhood has the effect of objectifying the child. The practice of child marriage imposes mature burdens on children who are not physically or mentally prepared to comprehend the significance of marriage,” the court said adding that when women are coerced into marriage, they are denied their right to bodily autonomy, sexuality and freedom to make choices for themselves.
The court also mentioned how child marriage has adverse effects not only on child wives but also on child husbands. “Boys married at young age equally feel pressures associated with sexual performance. Often, the only resource available to them is their peer group. The performance of sexual activity is an avenue for men to exhibit their masculinity. Because of their tender mind and patriarchal notions of masculinity and sexual dominance, they are likely to fall into egregious misinformation by their peers and commit violence on their child brides,” the court said.
Supreme Court issues guidelines for the effective implementation of PCMA and eradication of child marriage
The Supreme Court gave several guidelines to the government, such as age-appropriate and culturally sensitive sexuality education for children in schools. It proposed a ‘Child Marriage Free Village’ campaign, similar to the ‘Open Defecation Free Village’ movement, engaging local and community leaders.
The ruling directed the Home Ministry to create a specific portal for online reporting of child marriages; and the Ministry of Women and Child Development to launch a compensation scheme for girls who choose not to marry. The court also recommended the allocation of an annual budget to prevent child marriages and assist those affected. In the legal enforcement section, the court laid down directives for the state governments for the appointment of district-level CMPOs and ensuring their accountability. It also emphasised the responsibility of the Collectors and Superintendents of Police for “actively preventing child marriages in their districts.” The court also recommended setting up of “Specialized Police Unit” and a “Special Child Marriage Prohibition Unit”.
The court also laid guidelines in the context of the role of the judiciary in preventing child marriages. The Supreme Court directed magistrates to take proactive measures like issuance of suo motu injunctions to prevent the solemnization of child marriages and focus on “auspicious days” known for mass weddings and prevent the occurrence of the same. Moreover, the court urged the Centre and State governments to work in collusion to assess the feasibility of setting up special fast-track courts exclusively to handle cases under the PCMA in an expedited manner.
In addition to recommending measures for the governments and the judiciary, the court also suggested taking legal action against neglectful public servants and called for community involvement and awareness campaigns as well as integration of sex education in school curricula to curb and eventually eradicate child marriages among other measures.
The disturbing facts regarding child marriage in India
India has achieved significant success in curbing child marriages over the decades, however, the country is still far from the absolute eradication of this practice. According to official data, Karnataka has seen a stunning 8,348 child marriages in the last three years, with Tamil Nadu having the highest number at 8,966, 8,324 in West Bengal, 4,440 in Telangana, 3,416 in Andhra Pradesh, 3,316 in Assam, 2,043 in Maharashtra, 1,206 in Gujarat, 1,197 in Uttar Pradesh and 1104 in Haryana.
These numbers are alarming and call for effective measures to stop child marriages. While the Supreme Court has refused to extend the application of PCMA over all faiths superseding their personal laws, it is the need of the hour. While spread across religious communities, child marriages in the Muslim community have been rampant and even the courts have in many cases upheld the ‘legality’ of such marriages involving Muslim minors. This is so because the Prohibition of Child Marriage Act of 2006 applies to all Indian citizens, except the Muslim community who are governed by the Muslim Personal Law (Shariat) Application Act of 1937.
Courts relying on Sharia to uphold the legality of Muslim child marriages
Back in 2022, it was reported that the Delhi High Court upheld the legality of a 15-year-old minor girl’s marriage who had alleged to have been subjected to abuse and violence by her partner, stating that she is of ‘Marriageable Age’ under Islamic Sharia Law. The court held that a Muslim girl who is less than 18 years old but has attained puberty is free to marry anyone as per the Muslim Personal Law. The court observed that the minor Muslim girl can not only marry without the consent of her parents but can also reside with her husband even when she is less than 18 years of age.
Even before this case, the Punjab And Haryana High Court also justified child marriage in 2022 by granting protection to a 16-year-old Muslim Girl who married a 21-year-old Muslim boy while noting that she is of Marriageable Age under Muslim Personal Law. In the year 2021, a similar verdict was given by the Punjab and Haryana High Court. While hearing the plea filed by a 36-year-old man and a 17-year-old girl, she gave the verdict relying on various court rulings and article 195 in ‘Principles of Mohammedan Law’, an authoritative textbook by Muslim personal law jurist Sir Dinshah Fardunji Mulla, that states: “Every Muslim with a mature mind who has attained puberty can contract marriage. Minors who have not attained puberty can be validly contracted in marriage by their parents.”
In a historic decision taken earlier this year, the Assam government, led by Chief Minister Himanta Biswa Sarma, repealed a 20th-century law that allowed child marriages within the Muslim community in the State.
While much like the now-outlawed practice of instant Triple Talaq, the Muslim personal law board supports child marriage also. As per the Muslim Personal Law (Shariat) Application Act of 1937, a Muslim girl of the age of 15 is deemed ‘marriageable’.
Why PCMA should supersede the personal laws of all religions
While the Supreme Court expressed its deep concerns over the prevalence of child marriage in India and issued relevant guidelines and the Modi government also brought forth a pending Bill which if passed would ensure PCMA’s application over all religious communities, the issue needs speedy addressal as the more the delay the more minor girls and boys, particularly those belonging to the Muslim community will pushed into child marriage and robbed of their rights and freedom.
It is deeply problematic that the Prohibition of Child Marriage Act applies to Hindu and other religious communities, however, it is not so in the case involving Muslim minors even as child marriage in this community is quite common. According to the National Family Health Survey-V (NFHS 2019-21) data, 7% of women in India aged 15 to 19 have commenced childbearing, with Muslims having the highest ratio (8.4%). The figure is 6.8% for Christians and 6.5% for Hindus, implying that adolescent pregnancies among Muslims are 30% greater than among Hindus.
Meanwhile, a UNICEF report published last year said that 26% of Muslim women were first married or in union before ages 15 and 18. In addition to the effective implementation of the Supreme Court guidelines, it is crucial to extend the application of PCMA over all faiths regardless of their personal laws. Child marriage has several adverse impacts including restricted access to education, health issues due to early pregnancies, the perpetuation of poverty, turning of minor girls into baby-producing machines, this is rampant in a significant section of the population, particularly among the Muslim community, thus the restriction on PCMA’s applicability on Muslims perpetuates the practice of child marriages among the community and its adverse effects as well.
In a secular country, it does not make sense that Muslim minors, particularly girls are not allowed their right over their bodies and freedom to choose their partners. This perpetuates gender-based discrimination within the Muslim community. The discussion around child marriage among Muslims is not intended to mock the community but to stress the fact that despite the prevalence, child marriage among this community goes almost unchecked. Thus, the unequal enforcement of child marriage prohibition should be discontinued and a blanket ban on child marriage be imposed.
