(Outr)Age of Reason: Child Marriage, Personal Laws and Close-in-Age Exemptions

Summary:

In light of High Court judgments upholding child marriages as permissible in Muslim personal law, the author suggests close-in-age exemptions, recently recommended by the Law Commission of India, as a better means to protect adolescent relationships from criminalisation than religion-based grounds.

Over 1,000 arrests were made in October 2023 under the Prohibition of Child Marriage Act, 2006 (PCMA) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as part of Assam’s second crackdown on child marriages this year. The first crackdown, which saw over 3,000 arrests earlier this year, was criticised for targetting the state’s Muslims, leading to a related observation that the position of the law on child marriages itself is unclear with respect to Muslims since it is allowed in Muslim personal law.

Ten days before the first crackdown, the Supreme Court had taken action against two judgments of the Punjab & Haryana High Court: directing other High Courts not to rely on Javed v. State of Haryana, and issuing notice against Gulam Deen v. State of Punjab. In both cases, involving 16-year-old brides in consensual relationships, the High Court had held that a marriage of an underage girl was permissible in Muslim law if she had attained puberty.

This article finds the usage of personal law to protect adolescent relationships legally unsound and dangerous, albeit well-meaning. It also assesses the recent recommendations of the Law Commission of India (LCI) to allow lower sentences under the POCSO Act to protect such relationships.

“Illegal but Valid”: The Position in Hindu Law

Section 5 of the Hindu Marriage Act, 1955 lists age of majority among the “conditions for a Hindu marriage” but not among those making marriages void under Section 11. Instead, child marriages are only voidable by the child under Section 12. The Supreme Court has interpreted this difference to mean that not all the conditions in Section 5 are equally crucial.

The position, therefore, is that marriages criminalised under the PCMA continue to be valid in Hindu law. This is traceable to the judicially accepted principle that a Hindu marriage is a sacrament between souls and not a contract between transient humans, making age of majority (needed to contract) immaterial. This principle has been criticised as negating women’s consent to marriage in order to control them and protect caste purity.

“Puberty as Capacity”: The Position in Muslim Law

Unlike Hindu law, Muslim law considers marriage a contract, meaning marriages where the parties do not have capacity to contract are invalid. However, Islamic legal scholarship, as cited in Javed and Gulam Deen, considers the attainment of puberty as capacity and not 18 years. The confusion over whether the PCMA (and POCSO Act) take precedence over Muslim law has recently been decided in in the affirmative on the ground that the PCMA and POCSO Act are special legislations (such as at the Karnataka and Kerala High Courts in 2022 and the Delhi High Court in 2023). Notably, both are ‘secular’ legislations, applying to all citizens without religion-based exceptions.

In any case, the view of puberty as capacity may be inaccurate even under Muslim law. Musawah, a women-led movement for equality, explains that puberty (bulūgh) is only one of two concepts of capacity relevant to marriage. The other is rushd, the intellectual capacity to handle property and affairs (needed to contract). This provides a standard for when a woman is mature and independent enough to decide on marriage given its consequences on her educational and professional aspirations.

Rushd reflects decisional autonomy, recognised as fundamental in Justice K S Puttaswamy v. Union of India. Even pre-Puttaswamy, the Supreme Court in Independent Thought v. Union of India, which removed the ‘marital rape exception’ in the Indian Penal Code (IPC) for child brides, noted how child marriage violates bodily integrity and decisional autonomy. Bodily integrity is relevant to the discussion on PCMA not only in theory (cases have recognised that sex constitutes an ‘important’ aspect of marriage) but also practically. Minors in forced “arranged” child marriages, lacking access to justice and therefore unable to file rape complaints or marriage annulments, may become inextricably trapped in sexual violence.

Protecting Adolescent Relationships

Rather than a tale of sexual violence, Gulam Deen involved a 21-year-old seeking police protection from his 16-year-old bride’s disapproving family. The case reflects a pattern of PCMA and POCSO Act cases filed by parents to thwart their children’s relationships, mostly due to caste or religious differences. A study revealed that 24% of all POCSO Act cases registered in 2016-2020 in three states involved consensual relationships.

In its eagerness to help the couple in Gulam Deen, the court relied on religious grounds. This throws the floodgates open to allow forced and even abusive “arranged” marriages of child brides to much older men to be protected on the same grounds. The Delhi High Court showed similar eagerness in Fija v. State (NCT of Delhi) (involving the runaway marriage of a 15-year-old girl), allowing Muslim personal law to precede the PCMA but failing to even note the age of the groom. The accused in Javed was 26 years old.

How can the court better protect adolescent relationships from criminalisation under the PCMA and/or the POCSO Act? In light of the principle of evolving capacities, one is close-in-age exemptions. The recent LCI Report takes this approach, recommending amendments to the POCSO Act and IPC to allow judges to award sentences lesser than the minimum where:

  • The child is at least 16 years old,
  • The age difference between the child and accused is not more than three years,
  • The child had given their “tacit approval, though not consent in law”, and
  • The facts show that, among other factors, there was no force, coercion, manipulation or abuse of power.

The Violence and Inadequacy of Criminal Law 

While appreciable, some issues are apparent in the LCI’s proposal. Firstly, it still hands the accused (aged 19 years or younger) a criminal record and subjects them to arrest, investigation and trial. To solve this, a case meeting (i) and (ii) above could be made an exception to the offence unless (iii) and (iv) are alleged to not be met, thus reducing retributory cases, reversing the burden of proof at trial and not creating a criminal record.

Secondly, and more problematically, the Report recommends that the judge may consider the families’ acceptance of the relationship as a “convincing circumstance” for a reduced sentence. While only optional, the provision could have been accompanied by an explanation that a lack of familial acceptance would not prejudice the accused.

The LCI Report recommends no amendment to the PCMA, noting that child marriages expose the child to domestic violence, pregnancy and hampered economic prospects. At the same time, however, child marriage being a cognisable and non-bailable offence leaves child brides and their children destitute or forcibly taken to government shelters upon their husbands’ arrests. Instead of blanket religion-based allowances, extending the LCI recommendations on the POCSO Act to the PCMA will reduce criminalisation of adolescent men (and harm to adolescent women), in line with the PCMA’s child-centric objectives.  

In any case, criminal law has proven inadequate, with just 19 PCMA convictions in 2021 out of an estimated 1.5 million child marriages each year and unsuccessful state experiments with ab initio invalidation. To curb child marriage, governments must invest in expanding women’s agency through education and employment and not focus on criminalisation alone.

Ananya is a fourth-year student at the National Law University, Delhi. She is passionate about constitutional law and history, criminal law, tech law, legal journalism and gender.

 

Subscribe
Notify of
guest
144 Comments
Inline Feedbacks
View all comments
Aiyana Petty
Aiyana Petty
14 days ago

Awesome! Its genuinely remarkable post, I have got much clear idea regarding from this post

Liam Jacobs
Liam Jacobs
14 days ago

I truly appreciate your technique of writing a blog. I added it to my bookmark site list and will

Hazel Castillo
Hazel Castillo
14 days ago

Awesome! Its genuinely remarkable post, I have got much clear idea regarding from this post

Mariana Zavala
Mariana Zavala
14 days ago

For the reason that the admin of this site is working, no uncertainty very quickly it will be renowned, due to its quality contents.

Arthur Mcclure
Arthur Mcclure
14 days ago

naturally like your web site however you need to take a look at the spelling on several of your posts. A number of them are rife with spelling problems and I find it very bothersome to tell the truth on the other hand I will surely come again again.

Layton Zhang
Layton Zhang
14 days ago

Pretty! This has been a really wonderful post. Many thanks for providing these details.

Coby Bailey
Coby Bailey
14 days ago

I like the efforts you have put in this, regards for all the great content.

Demetrius Tanner
Demetrius Tanner
14 days ago

I’m often to blogging and i really appreciate your content. The article has actually peaks my interest. I’m going to bookmark your web site and maintain checking for brand spanking new information.

Tristen Mcknight
Tristen Mcknight
14 days ago

This is really interesting, You’re a very skilled blogger. I’ve joined your feed and look forward to seeking more of your magnificent post. Also, I’ve shared your site in my social networks!

Larry Archer
Larry Archer
14 days ago

naturally like your web site however you need to take a look at the spelling on several of your posts. A number of them are rife with spelling problems and I find it very bothersome to tell the truth on the other hand I will surely come again again.

Jackson English
Jackson English
14 days ago

Awesome! Its genuinely remarkable post, I have got much clear idea regarding from this post

ios pdf editor
ios pdf editor
14 days ago

Nice read! You should also check out https://pdfpanel.com.

Jaydin Skinner
Jaydin Skinner
14 days ago

I just like the helpful information you provide in your articles

Kasen Frye
Kasen Frye
14 days ago

very informative articles or reviews at this time.

Kylee Newman
Kylee Newman
14 days ago

Pretty! This has been a really wonderful post. Many thanks for providing these details.

Jamir Reid
Jamir Reid
14 days ago

I very delighted to find this internet site on bing, just what I was searching for as well saved to fav

pdf ocr summarization
pdf ocr summarization
13 days ago

Great post! I’ve found https://pdfpanel.com really helpful for managing my PDF files.

Abril Robbins
Abril Robbins
13 days ago

Hi there to all, for the reason that I am genuinely keen of reading this website’s post to be updated on a regular basis. It carries pleasant stuff.

Sterling Bolton
Sterling Bolton
13 days ago

I like the efforts you have put in this, regards for all the great content.

Aliyah Madden
Aliyah Madden
13 days ago

Good post! We will be linking to this particularly great post on our site. Keep up the great writing

Deshawn Bishop
Deshawn Bishop
13 days ago

For the reason that the admin of this site is working, no uncertainty very quickly it will be renowned, due to its quality contents.

insert pages into pdf
insert pages into pdf
13 days ago

Your perspective is refreshing. I integrate https://pdfpanel.com into my workflow.

Lucille Hanson
Lucille Hanson
13 days ago

very informative articles or reviews at this time.

pdf regex search tool
pdf regex search tool
13 days ago

Your perspective is refreshing. I integrate https://pdfpanel.com into my workflow.

Lilly Vincent
Lilly Vincent
13 days ago

This is my first time pay a quick visit at here and i am really happy to read everthing at one place

Frederick Drake
Frederick Drake
13 days ago

Great information shared.. really enjoyed reading this post thank you author for sharing this post .. appreciated

interactive pdf forms
interactive pdf forms
13 days ago

Well written. For PDF splitting and merging, I recommend https://pdfpanel.com.

avkub
avkub
13 days ago

naturally like your web site however you need to take a look at the spelling on several of your posts. A number of them are rife with spelling problems and I find it very bothersome to tell the truth on the other hand I will surely come again again.

pdf ocr batch processing
pdf ocr batch processing
12 days ago

This helped a lot—so does https://pdfpanel.com when working with multiple PDFs.

sign pdf electronically
sign pdf electronically
12 days ago

Thanks for making this so clear. https://pdfpanel.com is my go-to online editor.

pdf hover effect tool
pdf hover effect tool
12 days ago

Thanks for the detailed post. https://pdfpanel.com complements these tools nicely.

Alisson Coleman
Alisson Coleman
12 days ago

Hi there to all, for the reason that I am genuinely keen of reading this website’s post to be updated on a regular basis. It carries pleasant stuff.

shop
shop
11 days ago

You’re so awesome! I don’t believe I have read a single thing like that before. So great to find someone with some original thoughts on this topic. Really.. thank you for starting this up. This website is something that is needed on the internet, someone with a little originality!

جلب آلاف الزيارات
جلب آلاف الزيارات
10 days ago

اكتشف الآن كيفية استخدام مليون زيارة شهرياً من جوجل بالتكامل مع Money Robot Submitter وإرسال آلاف الايميلات يومياً لتحقيق نتائج مذهلة في الطريقة الآمنة لرفع القوة. يمكن لهذا الأسلوب أن يمنحك smtp server بطريقة فعالة، خاصة عند دمجه مع تقنيات برنامج رهيب لزيادة الترافيك الحديثة التي يستخدمها كبار المسوقين لتحقيق الربح من الإحالات ثابت ومستمر.

Karina Jenkins
Karina Jenkins
8 days ago

Great information shared.. really enjoyed reading this post thank you author for sharing this post .. appreciated

Jacoby Maynard
Jacoby Maynard
8 days ago

Pretty! This has been a really wonderful post. Many thanks for providing these details.

WishCare bd
WishCare bd
6 days ago

Great information shared.. really enjoyed reading this post thank you author for sharing this post .. appreciated

fashionpres
fashionpres
6 days ago

Best replica bags / shoes web. We start service since 2015. rFashionreps is a low-cost and high-quality reps bags/shoe factory.

fashionpres
fashionpres
6 days ago

Best replica bags / shoes web. We start service since 2015. rFashionreps is a low-cost and high-quality reps bags/shoe factory.

fashionpres
fashionpres
5 days ago

Best replica bags / shoes web. We start service since 2015. rFashionreps is a low-cost and high-quality reps bags/shoe factory.

Brogan Rivas
Brogan Rivas
5 days ago

I appreciate you sharing this blog post. Thanks Again. Cool.

VPS 4 core 4GB Ram 120 GB Fast NVMe SSD Storage $5.49
VPS 4 core 4GB Ram 120 GB Fast NVMe SSD Storage $5.49
3 days ago
shopping
shopping
1 day ago

Awesome! Its genuinely remarkable post, I have got much clear idea regarding from this post

Troy Olson
Troy Olson
3 hours ago

Game trivia sites for promotion

144
0
Would love your thoughts, please comment.x
()
x