child marriage:laws & flaws

Arvind Jain

Every year, on the auspicious day of 'Akshaya Tritya', more popularly known as 'Akha Teej', thousands of gullible minor children (including infants) are forced to tie the marital knot (Read-'noose'). The tradition has survived statutory provisions to the contrary and waves of social awakening over the past several decades. The law prohibiting child marriages has proved to be illusory and the efforts of social activists, equally worthless. The reasons are not difficult to find and actually stare in one's face while having a cursory glance at the relevant statutory provisions.

Both the Child Marriage Restraint Act and Sec.5(3) of the Hindu Marriage Act, 1955 lay down completion of twenty-one years of age by the groom and eighteen years by the bride as a pre requisite for marriage. The statute declares solemnization of a child marriage a criminal offence. An adult male marrying a child bride and in case both parties are below the prescribed age, the persons responsible for solemnization of the marriage are punishable with imprisonment ranging from fifteen days to six months, along with fine. Still, the marriage remains legally valid. It is left out of the purview of sections 11 and 12 of the Hindu Marriage Act, which deal with void and voidable marriages respectively. The sanctity of a Hindu marriage does not get diluted merely by its being a criminal offence. But (And) the, trivial nature of the criminality attached to it is already underscored by the soap bubble punishment provided for it. Moreover, the offences are bailable and non-cognizable for the purpose of arrest by the police (Sec.7). A police officer though entitled to investigate the offence, cannot make a spot arrest and has to obtain arrest warrants from the court of a Magistrate and thereafter, has to immediately release the offender on bail. The marriage then can be legally and validly performed. The child bride, if she was below fifteen at the time of marriage, has been conceded a right to repudiate the marriage and seek Divorce (not annulment of marriage) when she attains the age of fifteen years but before she is eighteen, under he Hindu Marriage Act [Sec.13(2)(4)]. However, if she is above fifteen (though below the minimum prescribed age of eighteen years) at the time of marriage, even this right is denied to her.

The validity of a child marriage gets further statutory recognition under the Indian Penal Code. Sec.375 of the Code defines the offence of Rape. Sexual intercourse without a woman's consent and in case she is below sixteen, even with her consent is rape. However, intercourse with a child-wife above fifteen with or without her consent has been specifically excluded from the definition. Thus, the Code not only acknowledges that there can be a child-wife but actually reduces the age of consent for intercourse with her by one year. Deliberate? Probably not. The fact is that originally, even the minimum age for marriage of a girl was fixed at fifteen. While the Child Marriage Restraint Act and the Hindu Marriage Act were amended in 1978, the worthy bureaucrats and great leaders of the nation forgot to make the corresponding changes in the Penal Code. And now, it will take some vigorous shaking for them to awaken to the crying need.

The comedy of statutory errors does not end here. A person committing rape upon any other woman can be punished with imprisonment for life. The minimum punishment a court has to award is imprisonment for seven years along with fine [S.376 (1)]. However, a person who rapes his own wife above fifteen years of age commits no offence. And, even if she is below fifteen, but above twelve, the husband - though acknowledged as a rapist, is entitled to a grand special concession in punishment. The maximum punishment prescribed for him is imprisonment for two years OR fine or both.

This being the position in substantive law, the Criminal Procedure Code also does not lag behind in its invidious treatment towards married women (especially, the child-wife). While in other cases, rape is a cognizable and non-bailable offence, rape of a wife above twelve years of age is non-cognizable and bailable (scheduled 1, Cr.PC). This means that although generally on receiving a complaint of rape the police arrests the accused even before collecting any other evidence and enters upon investigation, in case of rape of a wife, they will not take any action except making an entry in the register and the poor less than fifteen years old girl will have to approach the court herself to go through the more rigorous procedure prescribed for trial of complaint cases before the husband can even be touched. This is the privilege one gets on committing the offence of marrying a minor girl!

Yet another instance of mockery of the prohibition of child marriages presents itself in the form of Sec 198(6) of the Code of Criminal Procedure. For a usual case of rape, the prescribed punishment being above three years, the code does not provide any period of limitation. Rape of a child wife aged above twelve years attracts punishment up to two years of imprisonment and hence, the period of limitation for the court to take cognizance of the offence would be three years (Sec 468(2)(c)). However, a further overriding concession is provided by Sec 198(6), which reduces even this period to a mere one year. Not only this, this highly benevolent provision (for an offender of child marriage) even obliterates the cut-off mark placed at twelve years by Sec 376(1) IPC. The effect of this is that the period of limitation for taking cognizance of rape of a minor wife gets reduced to one year even in case the wife is below twelve years of age, which is otherwise an offence punishable with imprisonment for life.

Perhaps the funniest statutory provision in the context of child marriages is Sec 6 of the Hindu Minority and Guardianship act, 1956. Subsection (a) provides that the natural guardian of a minor boy or unmarried girl shall be his or her father and after him, the mother. As per subsection(c), guardian of a married girl is her husband. This applies even if both husband and wife are minors. Thus a minor husband who is himself under the guardianship of his father or mother shall be the guardian of his minor wife, their children and their respective properties if any. On the other hand, Sec 10 of the same act puts a blanket ban on a minor acting as the guardian of another minor's property. This is practically leaves the minor wife an orphan.

On second thoughts, the above provision may not qualify as the funniest. Consider this buffoonery of law: A child wife forced into the sacred matrimony before she was fifteen years of age is entitled to repudiate the marriage when she turns fifteen. Consequently, she should be entitled to refuse sex (till now, it was a criminal offence, though of varying gravity, to have sexual intercourse with her). However, till she attains a divorce on this ground, which takes years together, she remains the legally wedded wife. During this period, if the husband (or is he?) forcibly takes her away and compels her to submit to sex even by brute physical force, he commits no offence. He remains her guardian and hence, cannot be said to have kidnapped her out of his own guardianship. And, sexual intercourse with one's own wife, with or without her consent does not amount to rape.

Who are the Society, the Government, the Constitution, the legislature and the courts fooling? And why?

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