One cannot continue to raise the twentieth-century objections in the twenty-first century for not declaring child marriage void. It is necessary that to create a jurisprudentially sound situation; an act which is an offence should be illegal. If the law declares child marriages void, the parents would be compelled to think twice before arranging the marriage of their daughter who has not reached the legal age of marriage. It would become one of the important strategies to help prevent child marriages. Declaration of child marriage void would indicate that the state considers it as a serious matrimonial wrong. Moreover, it would send a strong message that the state is committed to prevent it in the interest of girls who are the principal sufferers.
One may argue that instead of declaring child marriage void it is better to take preventive measures. However, so long as the marriage remains valid the parents would continue to arrange the marriage of their young daughter while she is a child. The most suitable step would be to take both steps simultaneously—to declare it as void and at the same time to adopt various measures to prevent it.
Anticipating some opposition to declare child marriage void from certain sections of society and the government, it is submitted that initially for a specific period, for example, ten years, child marriage should be declared as voidable at the option of women. Voidable marriage would allow the wife to go to the court to annul her marriage. Such a provision would give a choice to the wife of either continuing or discontinuing with the marriage. But then it should be an interim step. Any child marriage solemnized after the passage of these ten years should be void. People should be made aware during these ten years that an under-age marriage solemnized after a particular date would become void. Such change in the law would provide an opportunity to all those who are likely to be party to a child marriage to give serious thought before they decide to act.
It is recommended that child marriage should be declared as voidable only for ten years. The reason being that if it is made voidable and not void for all time to come, though the girl would, in reality, be entitled to get the decree of annulment, she would rarely exercise this option. As a result, it would not help prevent child marriages.
Measures to Avoid Victimization of Girl Children
It is not denied that the custom of solemnizing child marriages would continue even if the law were to declare them void. One needs to take care of the consequences of void child marriage on the lives of young girls. The victimization of such girl children could be avoided by taking legal as well as other supportive measures.
Legal Measures and Child Marriage
Marriage laws generally do not entitle the parties to a void marriage to claim maintenance against each other. However, the girl child should be given the right to claim maintenance from the man to whom she was married. Such a right should be created in the personal marriage laws. If the man himself is dependent on his parents or guardians for his maintenance, the parents or guardians who were responsible for such marriage should be made liable to pay maintenance to her.
Supportive Measures and Child Marriage
To minimize the harsh consequences of void child marriages, the government should take responsibility of providing education and vocational skills to girl children who were given in marriages below the legal age. The government otherwise is also under the constitutional obligation to provide compulsory primary education to all. There is a special responsibility on the government for these victims of child marriages because of its failure to prevent such marriages. Education and job skills would help these girls become economically independent in future.
To avoid further victimization of child brides, the parents, community, and society need to be informed that virginity of a girl need not be the sacrosanct value. They need to be told how women are culturally discriminated against because of unnecessary and undue emphasis on their virginity. No one raises a similar issue about men’s chastity. The parents, community, and society need to be convinced that giving young girls in marriages so as to prevent the community from raising doubts about their virginity is a very short-sighted, harmful remedy. People need to be informed about adverse physical, social, and economic consequences of child marriages. Women’s virginity need not be treated as a virtue at the cost of their lives, health, and development. Virginity need not be the criterion of their status. On the contrary, their status could be improved by adopting more affirmative measures such as providing an opportunity for education and employment than by giving them in marriage as children.
It is reiterated that the legality of child marriage could no longer be justified on the basis of circumstances that were prevalent a hundred years ago.
Social progress and development over the period of almost a century founded on respect for the dignity and value of the human person should take care of many of these mentioned arguments. It should ensure the promotion of human rights and social justice.
Child marriage denies all such opportunities. To help women contribute to the economy and social development, they need to be properly equipped with education, which could happen if their marriages are delayed and they are allowed to go school and are retained there. At the beginning of the new millennium, the existing legality of child marriages needs to be challenged from women’s perspective. Women’s experiences, their needs, informed opinions, and values should be reflected in policies and laws.
In the long run, therefore, the declaration of child marriage as void would prove to be more beneficial to young girls as well as to society. For a short while, social and cultural forces might victimize child brides on declaration of child marriage void. Efforts could be made to reduce such victimization. But keeping in mind the long-term gains, during the interim period, a few would have to face the hardship of the law declaring child marriage void.
Other Lacunae in CMRA
CMRA merely attempted to restrain child marriage by providing penal sanctions for contracting such marriage. A number of important provisions that could have helped to prevent child marriage are missing from CMRA. Consent of the parties to a marriage and compulsory registration of a marriage are some important provisions that should have been incorporated in CMRA. There are a number of reasons for including such provisions in CMRA. Registration of marriages is the best method to control child marriages effectively. Mandatory requirement of consent would automatically reinforce the condition relating to the age at marriage, as a person would be capable of giving legal and valid consent only at the age of maturity. Such amendments should be brought into the personal laws of marriage prevalent in India. However, it would be more difficult to amend these religion-based laws for the reasons discussed in the following pages. It would be comparatively easy to amend CMRA.
Consent of Parties
All over the world, the law of marriage generally prescribes a certain age for parties to a marriage and provides for their free consent so that both can meet their responsibilities with physical and mental maturity. A matrimonial relationship which comes into existence on the basis of affinity cannot and should not be a forced relationship. Therefore, free and informed consent of the parties is and should be an essential prerequisite for marriage.
The competence of a person to enter into a matrimonial relationship is an important aspect of matrimony. Such competence is judged on the basis of physical and mental maturity of an individual. The person entering into a new relationship has to be in a position to understand the additional responsibilities emerging from that relationship. At a young age, physical and mental faculties of an individual are not developed enough to help a person to distinguish between good and bad, beneficial and hurtful. In the absence of sufficient experience and exposure to the external world, a person is not in a position to determine preferences and inclinations. As a child, a girl is not capable of making a choice of a life partner. When she is married off at a young age, freedom of choice regarding whom to marry and when to marry is denied to her. Child marriage does not allow her to give her free and informed consent. On the contrary, she is forced and pressurized to enter into marriage.
CMRA presumes that a girl attains the age of responsibility at the age of eighteen years to enter into a marriage. But it does not prescribe that such relationship should be based on the mutual consent of the parties. There is no specific provision in CMRA regarding the free consent of the marrying parties. This is a serious lacuna in CMRA and it needs to be rectified. The National Commission for Women in its draft on the Indian Marriage Bill in 1994 did provide for the free consent of the parties to a marriage as an essential prerequisite and proposed that any marriage is void in the absence of it.
As a ratifying country to the Women’s Convention, India is under an obligation to make a provision in the relevant statutes for the free consent of the parties to a marriage. In the absence of free consent of the parties, such marriage should be declared as void. By not providing so in CMRA, or under the existing personal laws, India has violated her obligation. To comply with the obligation under the Women’s Convention, therefore, CMRA, as well as the other marriage laws, should be amended to provide for the free consent of both the parties as an essential prerequisite for a marriage to be legal and valid.