India Child marriage

India Child marriage

Child marriage in India From Wikipedia, the free encyclopedia Jump to: navigation, search Small child brides in India Child marriage is a common practice in many countries around the world, however it is especially prevalent in India, where more than one third of all child brides live. [1] According to UNICEF, 47% of girls are married by 18 years of age, and 18% are married by 15 years of age. [2] These marriages are often performed without the consent of the girls involved in the marriage. Indian law has made child marriage illegal, but it is still widely practiced across the nation.

The highest rates are seen particularly in the rural states of Andhra Pradesh, Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh. [3] It affects both boys and girls, but statistics show that girls are far more likely to be forced into a child marriage than boys; however the percentage of girls forced into child marriage in India has declined in recent years. Many consider child marriage to be a human rights violation, resulting in death, health problems, poverty, violence, and lack of education. Contents Definitions of child marriage

UNICEF defines child marriage as a formal marriage or union before 18 years of age. [4] UN Women defines child marriage as a forced marriage before 18 years of age because they believe children under age 18 are incapable of giving their consent. [5] History of child marriage Political turmoil Child marriage, also known as Bal Vivaha, is believed to have begun during the medieval ages of India. At this time, the political atmosphere was turbulent and ruled by Delhi Sultans in an absolute monarchy government.

The sultans had an extreme commitment to their religion and forced many to convert, causing socio-cultural unrest, and Hindu women suffered the most. These days of the Delhi Sultans produced practices such as child marriage and lowered the status of women even further. They invented the ill omen of giving birth to a female baby and believed that young unmarried girls caused disaster. Child marriage became a widespread cultural practice with various reasons to justify it, and many marriages were performed while the girl was still an infant. [6] Military alliances

Indian feudalistic society became present, where characteristics such as honor, rivalry, and animosity were important qualities to possess, and because of this, families and kingdoms created strong military alliances to preserve or destroy power between them. To ensure the alliance was upheld by both sides, each family exchanged a young member of their household who was reared and educated at the other family’s estate. The children were the assurance that the alliance between the families was honored, but in case it wasn’t enough, the families made a marriage arrangement to deepen the alliance even further.

They believed the marriage wouldn’t work if they waited for the young children to grow up because they could possibly pick someone outside of the alliance. If they performed the marriage while the children were still young and susceptible to their parents’ influence, the children would have no choice but to marry who their parents chose to strengthen the alliance. [7] The caste system The caste system is also believed to have contributed to the growth of child marriage. Castes, which are based on birth and heredity, do not allow two people to marry if they are from different castes.

This system was threatened by young people’s emotions and desires to marry outside their caste, so out of necessity, child marriage was created to ensure the caste system continued. [8] Laws against child marriage The Child Marriage Restraint Act of 1929 The Child Marriage Restraint Act, also called the Sarda Act,[9] was a law to restrict the practice of child marriage. It was enacted on April 1, 1930, extended across the whole nation, with the exceptions of the states of Jammu and Kashmir, and applied to every Indian citizen.

Its goal was to eliminate the dangers placed on young girls who could not handle the stress of married life and avoid early deaths. This Act defined a male child as 21 years or younger, a female child as 18 years or younger, and a minor as a child of either sex 18 years or younger. 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. [10] It was amended in 1940 and 1978 to continue raising the ages of male and female children. [11] The Prohibition of Child Marriage Act, 2006

Coming into effect on November 1, 2007, the Prohibition of Child Marriage Act (PCMA) was put into place to address and fix the shortcomings of the Child Marriage Restraint Act. [12] The change in name was meant to reflect the prevention and prohibition of child marriage, rather than restraining it. [13][14] 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. [15] 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. [16] — Latest Judgment Under Prohibition of Child Marriage Act, 2006 — It has been held by the Delhi High Court that Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs each and every citizen of India– 2012 [Volume No. 3] JCC [Journal of Criminal Cases] Page No. 148 – IN The High Court of Delhi – Hon’ble The Acting Chief Justice ; Hon’ble Mr. Justice Sanjiv Khanna ; Hon’ble Mr. Justice V. K. Shali – Date of Judgment – 27th July, 2012 – Court on Its Own Motion [Lajja Devi] Vs. State – W. P. [Crl. ] No. 338 of 2008 — Smt. Laxmi Devi & Anr. Vs. State [GNCT of Delhi] & Others – Cril. M. C. No. 100/2011 and Crl. M. A. No. 3737 of 2011 – Maha Dev Vs. State [GNCT of Delhi] & Anr. – W. P. [Crl. ] No. 821 of 2008 and Crl. M. A. No. 8765 of 2008 — Devender @ Babli Vs. State [GNCT of Delhi] & Anr. – W. P. [Crl. ] No. 66 of 2010 — Hindu Marriage Act, 1955 and Prohibition of Child Marriage Act, 2006 – section 2[a] – Issue for Consideration – [i] What is the status of marriage under the Hindu Law when one of the parties to the marriage is below the age of 18 years prescribed under Section 5 [iii] of the Hindu Marriage Act, 1955 and Section 2 [a] of the Prohibition of Child Marriage Act, 2006, and [ii] When the girl is minor [but the boy has attained the age of marriage as prescribed] whether the husband can be regarded as the lawful guardian of the minor wife and claim her custody in spite of contest and claim by the parents of the girl – what is the effect of Prohibition of Child Marriage Act, 2006. — Held: – The object behind enacting the Prohibition of Child Marriage Act, 2006 was to curb the menace of Child Marriage, which is still prevalent in this country and is most common in rural areas – Child Marriage is such a social evil which has the potentialities of dangers to the life and health of a female child and plays havoc in their lives, who cannot withstand the stress and strains of married life and it leads to early deaths of such minor mothers – It also reflects the chauvinistic attribute of the Indian Society- Even after the passing of the new Act i. e. – Prohibition of Child Marriage Act, 2006, certain loopholes still remain, the legislations are weak as they do not actually prohibit child marriage . It can be said that though the practice of child marriage has been discouraged by the legislations but it has not been completely banned – Having regard to the legal/statutory position that stands as of now leaves us to answer first part of question No. by concluding that the marriage contracted with a female of less than 18 years of a male of less than 21 years of age would not be a void marriage but voidable one, which would become valid if no steps are taken by such court has option[s] to order otherwise [Paras 1,25,26,35,40] – Prohibition of Child Marriage Act, 2006 – Section 3 – The girl, if mature, cannot and should be denied her freedom and other wishes should not get negated as of she has no voice and her wishes are of no consequences – The Court while deciding, should also keep in mind that such marriages are voidable and the girl has the right to approach the Court under Section 3 of the Prohibition of Child Marriage Act, 2006 to get the marriage declared void till she attains the age of 20 years. Para 48 ] – Indian Penal Code, 1860 – Section 375 & 376 – In case the girl is below 16 years, the answer is obvious that the consent does not matter – Offence under Section 376 Indian Penal Code is made out – The charge sheet cannot be quashed on the ground that she was a consenting party – However, there can be special or exceptional circumstances which may require consideration, in cases where the girl even after attaining majority affirms and reiterates her consent. [Para 49] — Indian Penal Code, 1860 – section 375 – Consummation, with the wife below the age of 15 years of age, is an offence under Section 375 – No exception can be made to the said constitutional mandate and the same has to be strictly and diligently enforce – Consent is such case is completely impartial, for consent at such a young age is difficult to conceive and accept – It makes no difference whether the girl is married or not – Personal law applicable to the parties is also immaterial. Para 50 ] — Indian Penal code, 1860 – Section 375 & 376 – Prohibition of Child Marriage Act, 2006 – Section 3 – If the girl is more than 16 years, and the girl makes a statement that she went with her consent and that statement and consent is without any force, coercion or undue influence, the statement could be accepted and the court will be within its power to quash the proceedings under Sections 363 or 376 Indian Penal Code, 1860 – Here again no straight jacket formulae can be applied – The court has to be cautious, for the girl has right to get marriage nullified under Section 3 of the Prohibition of Child Marriage Act, 2006 – Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc. have to be taken into consideration. [Para 51] – Indian Penal Code, 1860 – Section 363/366/376/465/467/494/497/120-B/506 Indian Penal Code – Prohibition of Child Marriage Act, 2006- Section 3 – Code of Criminal Procedure, 1973 – Section 482 – As per the ossification test, the girl/petitioner No. 1 was found between 17-19 years of age – As per the school leaving certificate, she was 17 years of age on the date when the parties solemnised marriage – Since she has given the statement that she married of her own accord to the petitioner no. and was more than 16 years of age, FIR under sections 363/366/376/465/467/494/497/120-B/506 Indian Penal Code registered against the petitioner no. 2 is quashed. — Marriage and Guardianship – In this writ petition, the question is only of validity of marriage and guardianship – Even if the age of the girl is taken as 15 years of age at the time of incident i. e. – 27. 10. 2006, she would be 21 years of age as of now – she has not filed any proceedings for declaring the marriage as void. Therefore, the marriage becomes valid now – The question of guardianship does not arise at this stage as she is major and during the period she was minor she resided at Nirmal Chhaya- Thus, the writ petition is disposed of in the above said terms. — Held: – As per the facts noted in Para 10 above, Shivani @ Deepika at the time of her marriage was less than 16 years of age, her date of birth being 3. 6. 1994 – It was directed that she would remain at Nirmal Chhaya – However, as the per the aforesaid date of birth i. e. – 3. 6. 1994, she has attained majority on 3. 6. 2012 – The petition was filed by Sh. Devender Kumar who married her habeas corpus was claiming her custody. She has attained majority, she is free to go anywhere – with these directions, this petition stands disposed of. [Para 56,57 & 58] — Child Marriage Restraint Act, 1929 which now stands repealed by Prohibition of Child Marriage Act, 2006. Para 16] – Thus, irrespective of personal laws under Act child marriages are prohibited. – By declaring that the Prohibition of Child Marriage Act, 2006 shall apply to all citizens, the parliament has intended to allow the Prohibition of Child Marriage Act, 2006 to override the provisions of Hindu Marriage Act to the extent of inconsistencies between these two enactments. Similarly, Prohibition of Child Marriage Act, 2006 will override the personal law. [Para 20] – Thus, the Prohibition of Child Marriage Act, 2006, being a special law, will have overriding effect over the Hindu Marriage Act, 1955 to the extent of any inconsistency between the two enactments.

For this reason, the court took the view that Section 3 of Prohibition of Child Marriage Act, 2006 would have overriding effect over the Hindu Marriage Act and the marriage with a minor child would not be valid but voidable and would become valid if within two years from the date of attaining 18 years in the case of female and 21 years in the case of male, a petition is not filed before the District Court under section 3 [1] of the Prohibition of Child Marriage Act, 2006 for annulling the marriage. Similarly, after attaining eighteen years of age in the case of female, or twenty one years of age in the case of a male, the marriage shall become a full-fledged valid marriage. Until such an event of acceptance of the marriage or lapse of limitation period, the marriage shall continue to remain as a voidable marriage. Para 21] – If the marriage is annulled as per Section 3[1] of the Prohibition of Child Marriage Act, 2006, the same shall take effect from the date of marriage and, in such an event, in the eye of law there shall be no marriage at all between the parties at any point of time. [Para 22] – Stronger punishments for offences under Prohibition of Child Marriage Act, 2006 have been prescribed and that the offences have also been made cognizable and non-bailable but, this does not in any event have any impact on the validity of the child marriage. — It has made a specific provision for void marriages under certain circumstances but did not render all child marriages void. [Para 23] — Prohibition of Child Marriage Act, 2006 as noticed above is a secular law and is a latter enactment, which specifically deals with the problem of child marriages. Religion of the contracting party does not matter.

Prohibition of Child Marriage Act, 2006 being a “Special Act” and being a subsequent legislation, to this extent and in case there is any conflict, will override the provisions of Hindu marriage Act or for that matter nay personal law. [Para 30] — Registration of marriage has still not been made compulsory. Compulsory registration mandates that the age of the girl and the boy getting married have to be mentioned. If implemented properly, it would discourage parents from marrying off their minor children since a written document of their ages would prove the illegality of such marriages. This would probably be able to tackle the sensitive issue of minor marriages upheld by personal laws. Para 38] —- The marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which would become valid if no steps are taken by such “Child” within the meaning of Section 2[a] of the Prohibition of Child Marriage Act, 2006 under Section 3 of the said Act seeking declaration of this marriage as void. [Para 40]. CEDAW The Convention on the Elimination of All Forms of Discrimination Against Women, commonly known as 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. 17] India signed the convention on July 30, 1980 but made the declaration that, because of the nation’s size and amount of people, it’s impractical to have a registration of marriages. [18] Why parents choose child marriage Parents of a child entering into a child marriage are often poor and use the marriage as a way to make her future better, especially in areas with little economic opportunities. During times of war, parents will often marry off their young child to protect her from the conflicts raging around her. Some families still use child marriage to build alliances, as they did during the medieval ages. Statistically, a girl in a child marriage has less of a chance to go to school, and parents think education will undermine her ability to be a traditional wife and mother.

Virginity is an important part of Indian culture, and parents want to ensure their daughters do not have pre-marital sex, and child marriage is an easy way to fix this. [19] Consequences of child marriage Early maternal deaths Roza Olyai, an Indian gynecologist and the National Chairperson for the Adolescent Health Committee of the Federation of the Obstetric and Gynecological Societies of India said, “Early marriage has many medical risks. The reproductive organs are not fully developed. The body is not ready. Teenage mothers, especially those below 18 years, risk hypertensive disorder, eclampsia, pre-eclampsia, and post-partum hemorrhage. “[20]

Girls who marry earlier in life are less likely to be informed about reproductive issues,[21] 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. [22] These girls are twice more likely to die in childbirth than girls between 20 and 24 years of age. [23] Girls younger than 15 years of age are 5 times more likely to die in childbirth. [24][25] HIV and AIDS Girls entering into a child marriage are sometimes significantly younger than their husbands, who can be more sexually experienced. Marrying young and being sexually active can increase a girl’s chance of becoming HIV-positive by more than 75%. [26] Infant health

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. [27][28] Fertility outcomes 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. % 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). [29] Fertility rates are higher in slums than in urban areas. [30] Lack of education and poverty Marrying young is often associated with a lack of education and higher rates of poverty. Because of household responsibilities, pregnancy, and child rearing, young girls do not have access to schooling and income opportunities. [31] Violence 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 Center 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[32] and three times more likely to experience sexual violence. [33] Young brides often show symptoms of sexual abuse and post-traumatic stress. [34] Prevention programs in India Apni Beti, Apna Dhan (ABAD), which translates to “Our Daughter, Our Wealth,” is one of India’s first conditional cash transfer programs dedicated to delaying young marriages across the nation. In 1994, the Indian government implemented this program in the state of Haryana.

On the birth of a mother’s first, second, or third child, they are set to receive 500 rupees, or 11 USD, within the first 15 days to cover their post-delivery needs. Along with this, the government gives 2,500 rupees, or 55 USD, to invest in a long-term savings bond in the daughter’s name, which can be later cashed for 25,000 rupees, or 550 USD, after her 18 birthday. She can only receive the money if she is not married. Anju Malhotra, an expert on child marriage and adolescent girls said of this program, “No other conditional cash transfer has this focus of delaying marriage… It’s an incentive to encourage parents to value their daughters. “[35]

The International Center for Research on Women will evaluate Apni Beti, Apna Dhan over the course of the year 2012, when the program’s initial participants turn 18, to see if the program, particularly the cash incentive, has motivated parents to delay their daughters’ marriages. “We have evidence that conditional cash transfer programs are very effective in keeping girls in school and getting them immunized, but we don’t yet have proof that this strategy works for preventing marriage,” said Pranita Achyut, the program manager for Apni Beti, Apna Dhan. “If Haryana state’s approach proves to be valuable, it could potentially be scaled up to make a significant difference in many more girls’ lives – and not only in India. ”[36]