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

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.