Issue 67 Vol III, July 15, 2008

L A W  &  J U S T I C E

Child marriage, a persistent evil
Joginder Singh Toor

THE utility and success of the recent legislation, Prohibition of Child Marriage Act, 2006 ought to be viewed from the social, cultural and historical context.

The eight forms of marriages, Brahma, Daiva Arsa, Prajapatya, Asura, Gandharva, (love marriage), Raksasa, (by abduction) and Paisaka (Seduction while sleeping), mentioned by Manu do not include Balvivah, the child marriage. It was not known in ancient Hindu law and does not find mention in the Ramayana or Mahabharata. The form of marriage could secure benefits and produce evil, says Manu.

“Gift of a daughter after decking her with costly garments and honouring her by presents of jewels, to a man learned in the Veda and of good conduct whom the father himself invites” was most honoured the Brahma marriage and “the gift of a daughter decked with ornaments to a priest” a Daiva marriage” imply the kind of dower the father offers along with daughter known as “Kanya Danam” the ages long obligation, having known implications.

Compared to it “when the bride groom receives a maiden, after having given as much wealth as he can afford to the kinsmen and to the bride herself” known as Asura rite or Asura marriage leads us to the similar circumstances prevailing in Arabia of the Pre-Prophet age, where according to Aqil Ahmad the institution of marriage as we know today was not developed and according to Fyzee, in Pre-Islamic Arabia two forms of marriages prevailed. In the ‘Beena form, it was customary to give gifts (sadaqi) to the wife on marriage. In the other form known as ‘Baal’ marriage wife used to accompany the husband to her in-laws house and the husband in consideration of wife leaving her parents home, paid some amount to her parents. ‘Sadaqi’ was gift to wife, but Mahr in Baal form was compensation to parents. When Islam spread in Arabia the Prophet reformed the law of marriage. The Mahr was made property of the wife. It belonged to her. It was paid or agreed to be paid by the husband to the wife. It became a nuptial gift by the husband to the wife.

The turbulence of middle ages seems to be the origin of child marriage (BalVivah) when wars, invasions, expansion by occupation of foreign territories became the order of the day. The males were supposed to fight for the ruler, either to achieve the status of martyr or if won, to have the ruler the object of war may be territory or a woman. Leaving the women folk on the mercy of invaders, whose primary modes-operandi was, a run over, mass slaughter, plunder, molestation and what not. The girls being worst victims, faced extinction either at the hands of their own kinsmen or the wrath of enemy. Entrusting the girl as early as possible to a male may be minor, through his kins, in marriage, served purposes more than one. She became link for family ties, continued alliances, seeking princely support, and princely knots. This followed by one after the other, acquired the form of a custom which repeatedly followed got the status and approval of the law. Its continuation even after the turbulence was over, gave rise to vices, like child abuse, attracting the attention of reformers and law makers.

The first attempt in 1929 to check child marriage made by enacting Child Marriage Restraint Act, 1929 having not proved successful drew attention of connoisseurs codifying Hindu law.

Age limit for marriage has with the passage of time been changing. Originally 18 years for male and 14 years for female in 1929 Act changed in respect of female to 15 years in 1949. For containing population growth also the age limit by an amendment of 1978 was raised to 21 years and 18 years. Marrying a female below 18 years of age was made punishable by simple imprisonment of 15 days to 3 months and fine. The person solemnizing marriage including the parents and guardian were also liable to be imprisoned. The court could issue a restraint order, on receiving a complaint before hand.

The Hindu Marriage Act, 1955 took care of the phenomenon, and for a valid marriage completion of age 18 and 15 years was made a condition precedent which limit was raised to 21 and 18 in 1978, but violation of this condition did not render the marriage void as envisaged in Section 11 with regard to other conditions of marriage, nor did the violation made marriage voidable under Section 12.

The recent legislation, the prohibition of Child Marriage Act,2006 repeals the 1929 Act and contemplates, that a marriage between two persons below the age of 21 and 18 shall be voidable at the option of either party, to be exercised within 2 years of his or her attaining majority. The court shall while declaring marriage void, order the return of valuables, and pass order for maintenance till re-marriage. Also make order for custody and maintenance of children if any. The male adult marrying a girl below 18 can be imprisoned for 2 years or fine of Rs. One lakh, the priest who performs marriage including the parents or the ward are liable to punishment of imprisonment and fine. Still further marriage of a child by enticing or selling for marriage is void marriage.

Child Marriage Prohibition Officers are to be appointed who can file complaints seeking restraint order prohibiting the intended child marriage and collect evidence for prosecuting the guilty of child marriage performed already.

There are serious questions regarding the first part declaring the marriage void after the parties have lived together and produced children, for remarrying unless one of the parties or both want to use the provision as a tool for breaking the marriage thrust upon. The social set up, long existing practices, the customs prevalent in the background out of which these evolved, can not be undone by legal declarations. The punitive measure of-course may help. The change in the mind set, by promoting education, and changed social pressures are the need of the day.

[Joginder Singh Toor, Advocate, Punjab and Haryana High Court. E-mail: jogindersingh_toor@yahoo.com]

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