'Amendment to make child marriages void should be introduced soon'

Jayna Kothari, Supreme Court advocate and executive director of the Centre for Law & Policy Research
Child marriages in India, says a report by UNICEF, have significantly decreased, but the rate of decline remains slow. The Supreme Court has struck down a legal clause that allowed intercourse with underage brides, but at present child marriages still remain valid, a situation that is expected to be addressed soon. Jayna Kothari, Supreme Court advocate and executive director of the Centre for Law & Policy Research, Bengaluru, tells Nikita Puri why despite the fall in numbers, there is no room for complacency on child marriages. Edited excerpts:

Despite the illegality of child marriages being enforced with penalties, how do marriages that take place currently still uphold their validity?

Child marriages, though prohibited by law, are still valid marriages. The Prohibition of Child Marriages Act, 2006, only states that a child marriage is voidable and can be annulled by a party to the marriage who was a child through her guardian if she is still a minor; such a petition for annulment can be filed by a child until two years after attaining majority. 

It is only in Karnataka that an amendment was brought about to the Prohibition of Child Marriages Act, making all child marriages void, thus making them invalid in the eyes of the law.

So child marriage is currently valid but voidable only in Karnataka. But how often does an underage bride come forward to lodge a complaint or seek an annulment? Also, do you think there should be an upper limit of two years?

It is extremely difficult for a minor bride to come out and take steps to annul her marriage. The minor girl who is married can annul her marriage by filing a petition for annulment in a District Court at any time, and has time until two years after attaining majority to file an annulment petition. This means that she has time until she is 20. This is highly unlikely as she would have to go against her parents, family members and relatives to file an annulment petition, which if she had the capacity to do, she would have resisted the marriage in the first place. 

She would also need support to find a lawyer, and would need financial assistance as well. 

Like in many instances, if she is already pregnant by the time she is 20, then she would find it very difficult to take any steps to annul the marriage, as she would have to think about how she would support herself and the minor child. It is in very rare cases that minor girls take such steps and these instances are only where there are non-profit organisations supporting her to get legal assistance.  

I do not think that there should be a time limit, because there are many circumstances such as pregnancy, child birth, financial capacity and education that restrict girls and young women from approaching the courts to seek annulment of their marriages. 

Reports suggest that the Ministry of Women and Child Development is moving ahead with a proposal to amend the existing law so as to make child marriage illegal from the outset. Is this something you see happening soon? What would be the challenges in the implementation of this law? 

With the recent decision of the Supreme Court in Independent Thought v. Union of India, where the Supreme Court held sexual intercourse within child marriages to be rape and also observed that following the Karnataka example the central government should amend the Prohibition of Child Marriages Act to make child marriages void, this amendment should be introduced soon. The main challenges in implementing such an amendment would be creating awareness of the law so that people are made known that child marriages would be invalid and illegal, so that it would deter families from carrying out such marriages. 

Last October, the Supreme Court affirmed that child marriage was a violation of girl child’s constitutional and human rights while also recognising non-consensual sex within child marriages as rape. While this is a cause for celebration, is there any danger of it being misused?

I do not think it would be misused, because even with the Prohibition of Child Marriages Act providing for criminal complaints that can be filed against the husband, we see that the Prohibition of Child Marriages Act is hardly used and implemented. 

There are very few criminal complaints filed against husbands in the case of child marriages, so it is not very likely that recognising child marital rape would be misused. In fact, people are not even aware of this decision and steps need to be taken to create widespread awareness so that this decision would deter child marriages. 

Why does implementation of the law against child marriage continue to be a challenge in India?

There is great social acceptance of underage marriages in all communities and religions. Despite there being a law prohibiting child marriages, our families and communities do not recognise the harm child marriages do to young girls, their health and reproductive rights and continue to give sanction to them.

A recent report by UNICEF says child marriages in India have registered a drop from 47 per cent to 27 per cent over the past decade. Is this a good track record given all the campaigning against such marriages?

This is a good track record, but 27 per cent is still a very high number of child marriages in India. The percentages vary in different regions and in some regions the numbers are still as high as 40 per cent. We can by no means be complacent and need to continue campaigning against it.

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