Child marriage in India

Child marriage is a complex subject under Indian law. It was defined by The Child Marriage Restraint Act in 1929,[9] which set the minimum age of marriage for females to be 14 and males 18. The law was opposed by Muslims and subsequently superseded for Muslims of British India by the Muslim Personal Law (Shariat) Application Act of 1937,[5] which implied no minimum limit and allowed parental or guardian consent in case of Muslim marriages.

The 1929 law for non-Muslims was amended twice after India gained independence in 1947. In 1949, the minimum age for girls was increased to 15, and in 1978 the minimum age was increased for both genders: to 18 for females and 21 for males.[6][10] The applicability and permissibility of child marriage among Muslims under the 1937 Act, under India's Constitution adopted in 1950, remains a controversial subject, with a series of Supreme Court cases and rulings.[5]

The definition of child marriage was last updated by India with its The Prohibition of Child Marriage Act of 2006, which applies to all Indians except the state of Jammu and Kashmir and the renoucants of the union territory of Puducherry. For Muslims of India, child marriage definition and regulations based on Sharia and Nikah has been claimed by some as a personal law subject but has been ruled by various courts that it applies to Muslims also.[5][7] For all others, The Prohibition of Child Marriage Act of 2006 defines "child marriage" means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person – if a male, it is 21 years of age, and if a female, 18 years of age.[11]

UNICEF defines child marriage as a formal marriage or informal union before 18 years of age,[12][13] because it can lead to a lifetime of suffering for girls who are more likely to experience domestic violence or die due to complications in pregnancy and childbirth.[12][14] UN Women proposes that child marriage be defined as a forced marriage because they believe children under age are incapable of giving a legally valid consent.[15]

The small sample surveys have different methods of estimating overall child marriages in India, some using multi-year basis data. For example, NFHS-3 and NFHS-4 data for 2005 mentioned in above table, used a survey of women aged 20–24, where they were asked if they were married before they were 18.[18] The NFHS-3 also surveyed older women, up to the age of 49, asking the same question. The survey found that many more 40–49 were married before they turned 18, than 20–24 age women who were interviewed. In 1970s, the minimum legal age of marriage, in India, for women was 15.[10]

According to UNICEF report published in 2005–06, child marriage rates in India were estimated to be around 47%. This figure declined to 27% in 2015–16 according to a new report published by UNICEF. UNICEF also reported that the child marriage was wide spread in three Indian states (Rajasthan, Bihar and West Bengal) and there is a 40% prevalence of child marriage in these states.[20]

Javier Aguilar, UNICEF’s chief of child protection, stated that the India accounts for the highest number of child marriages in South Asia given its size and population.[22]

The states with highest observed marriage rates for under-18 girls in 2009, according to a Registrar General of India report, were Jharkhand (14.1%), West Bengal (13.6%), Bihar (9.3%), Uttar Pradesh (8.9%) and Assam (8.8%).[3] According to this report, despite sharp reductions in child marriage rates since 1991, still 7% of women passing the age of 18 in India were married as of 2009. UNICEF India has played a significant role in highlighting the Indian child marriage rate prevalence data from its 1990s study.

According to 2011 nationwide census of India, the average age of marriage for women is 21.2.[25][26] In the age group 15–19, 69.6% of all women surveyed in India had never been married.[27]

Several activists have expressed skepticism regarding the decline in child marriage cases in India.[28] They believe that "the UNICEF report might not be reflecting reality on the ground and the numbers are likely not as low as they appear in the report".[28] They state that the data relating to child marriage is colled by local government and not by UNICEF. In India, the government ask about the age of bride and groom as a part of census data, which is collected every year. However, since the people know that child marriage is illegal in India, so they are less likely to tell the authorities that they have broken the law.[28] Dhuwarakha Sriram, child protection specialist at UNICEF India, says that "everyone knows that there is underreporting in India – even the UNICEF is aware of it". According to Sriram, people are aware of the illegal age of marriage in India, so they are less likely to tell the truth, which in turn leads to underreporting.[28]

Kriti Bharti, who runs a non-government organization called Saarthi, says people in Rajasthan have developed ways of evading the law.[28] For example, marriage ceremonies for underage persons will be held at night, with small groups of people attending. This reduces the chance of neighbours or relatives alerting authorities.[28] Once the marriage has taken place, the underage bride remains with her parents until she reaches puberty. This way, even if the authorities have been tipped off, the families can deny any wrongdoing. Bharti states in addition to this, 'in some parts of India, authorities are not always interested and child marriage may be accepted as a part of the culture.[28]

The Child Marriage Restraint Act, also called the Sarda Act,[29] was a law to restrict the practice of child marriage. It was enacted on 1 April 1930, extended across the whole nation, with the exceptions of some princely states like Hyderabad and Jammu and Kashmir. This Act defined the age of marriage to be 18 for males and 14 for females. In 1949, after India's independence, the minimum age was increased to 15 for females, and in 1978, it was increased again for both females and males, to 18 and 21 years, respectively.

The punishment for a male between 18 and 21 years marrying a child became imprisonment of up to 15 days, a fine of 1,000 rupees, or both. The punishment for a male above 21 years of age became imprisonment of up to three months and a possible fine. The punishment for anyone who performed or directed a child marriage ceremony became imprisonment of up to three months and a possible fine, unless he could prove the marriage he performed was not a child marriage. The punishment for a parent or guardian of a child taking place in the marriage became imprisonment of up to three months or a possible fine.[30] It was amended in 1940 and 1978 to continue raising the ages of male and female children.[29]

In response to the plea (Writ Petition (C) 212/2003) of the Forum for Fact-finding Documentation and Advocacy at the Supreme Court, the Government of India brought the Prohibition of Child Marriage Act (PCMA) in 2006, and it came into effect on 1 November 2007 to address and fix the shortcomings of the Child Marriage Restraint Act.[31] The change in name was meant to reflect the prevention and prohibition of child marriage, rather than restraining it.[29][31] The previous Act also made it difficult and time consuming to act against child marriages and did not focus on authorities as possible figures for preventing the marriages.[31]

This Act kept the ages of adult males and females the same but made some significant changes to further protect the children. Boys and girls forced into child marriages as minors have the option of voiding their marriage up to two years after reaching adulthood, and in certain circumstances, marriages of minors can be null and void before they reach adulthood. All valuables, money, and gifts must be returned if the marriage is nullified, and the girl must be provided with a place of residency until she marries or becomes an adult. Children born from child marriages are considered legitimate, and the courts are expected to give parental custody with the children's best interests in mind. Any male over 18 years of age who enters into a marriage with a minor or anyone who directs or conducts a child marriage ceremony can be punished with up to two years of imprisonment or a fine.[32]

In December 2021, the Indian Government presented a bill called the 'Prohibition of Child Marriage (Amendment) Bill, 2021' in Parliament. The purpose of this bill is to equalize the age of marriage for women with that of men by raising it to 21 years.[33] The underlying premise of the Bill is that by increasing the age of marriage, it will eliminate the prevalence of child marriage.[33] Shortly after the bill was introduced, Women and Child Development Minister Smriti Irani stated that the bill aims to supersede all current laws, including any traditions, customs, or practices related to marriage.[34]

Muslim organizations of India have long argued[8][35] that Indian laws, passed by its parliament, such as the 2006 child marriage law do not apply to Muslims, because marriage is a personal law subject.[5][7] The Delhi High Court, as well as other state high courts of India, have disagreed. The Delhi Court, for example, ruled that Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs each and every citizen of India[36] The ruling stated that an under-age marriage, where either the man or woman is over 16 years old, would not be a void marriage but voidable one, which would become valid if no steps are taken by such court as has option[s] to order otherwise. In case either of the parties is less than 18 years old, the marriage is void, given the age of consent is 18 in India, sex with minors under the age of 18 is a statutory crime under Section 376 of Indian Penal Code.[36]

Various other High courts in India – including the Gujarat High Court,[37] the Karnataka High Court[38] and the Madras High Court[39] – have ruled that the act prevails over any personal law (including Muslim personal law).

There is a standing legal confusion as to Marital Rape within prohibited Child Marriages in India. Marital rape per se is not a crime in India; but the position with regard to children is confusing. While the exception under the criminal law (section 375, Indian Penal Code, 1860) applicable to adults puts an exception and allows marital rape of a girl child between the age of 15–18 years by her husband. However this provision of exception has been read down by the Supreme Court of India in the case of Independent Thought v. Union of India in October 2017 and it declares that sexual intercourse with all wives below 18 years of age shall be considered as rape; another new and progressive legislation Protection of Children from Sexual Offences Act, 2012 disallows any such sexual relationships and puts such crimes with marriages as an aggravated offense.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is an international bill attempting to end discrimination against women. Article 16, Marriage and Family Life, states that all women, as well as men, have the right to choose their spouse, to have the same responsibilities, and to decide on how many children and the spacing between them. This convention states that child marriage should not have a legal effect, all action must be taken to enforce a minimum age, and that all marriages must be put into an official registry.[40] India signed the convention on 30 July 1980 but made the declaration that, because of the nation's size and population, it is impractical to have a registration of marriages.[41]

Girls who marry earlier in life are less likely to be informed about reproductive issues,[42] and because of this, pregnancy-related deaths are known to be the leading cause of mortality among married girls between 15 and 19 years of age.[43] These girls are twice more likely to die in childbirth than girls between 20 and 24 years of age.[44] Girls younger than 15 years of age are five times more likely to die in childbirth.[45][46]

Infants born to mothers under the age of 18 are 60% more likely to die in their first year than to mothers over the age of 19. If the children survive, they are more likely to suffer from low birth weight, malnutrition, and late physical and cognitive development.[12][46]

A study conducted in India by the International Institute for Population Sciences and Macro International in 2005 and 2006 showed high fertility, low fertility control, and poor fertility outcomes data within child marriages. 90.8% of young married women reported no use of a contraceptive prior to having their first child. 23.9% reported having a child within the first year of marriage. 17.3% reported having three or more children over the course of the marriage. 23% reported a rapid repeat childbirth, and 15.2% reported an unwanted pregnancy. 15.3% reported a pregnancy termination (stillbirths, miscarriages or abortions).[47] Fertility rates are higher in slums than in urban areas.[48]

Young girls in a child marriage are more likely to experience domestic violence in their marriages as opposed to older women. A study conducted in India by the International Centre for Research on Women showed that girls married before 18 years of age are twice as likely to be beaten, slapped, or threatened by their husbands[45] and three times more likely to experience sexual violence.[49] Young brides often show symptoms of sexual abuse and post-traumatic stress.[45]