The recent concern against the crackdown on paedophiles who married minor girls as young as 10-11 years in Assam is nothing new, but a continued concern for boys and men, at the cost of girls. This gender bias is classical patriarchy. There can be no arguments that the steps taken by the Assam Police and concern shown by Assam Chief Minister to put an end to child marriage are praiseworthy. Be assured, millions of girls, fearing being married at an early age by their parents, must be blessing the police and hoping for a better future for them. The gherao of police stations against the drive is another posturing, attempt to keep the status quo, where men are allowed to continue with their exploitative power relations, by marrying underage girls, deprived of education and independence. When the Government of India, sloganeered, “Beti Bachao, Beti Padhao” in 2014 visible in all possible places movable and immovable, it was not only novice in terms of scale but also reflected State priority in a manner. Specific to “Child Marriage”, even previous governments have shown concern and the issue has been part of the public awareness campaigns since ages.
The Doordarshan ad, “Matki Kyo Tuti” comparing a small girl child as an unbaked vessel, vulnerable and unable to take the burden of task expected, still remains in the minds of many of us. The law on Child Marriage has been in existence since 1929, amended in 1978 and again in 2006, as the Prohibition of Child Marriage Act, 2006 (hereinafter PCMA, 2006). The 2006 Law is ineffective and complicates the issue on many counts, First, while it prohibits child marriage, it keep the status of marriage solemnized as valid; second it provides for annulment of marriages and in certain circumstances declares as void-ab-intio; Third, it defines the groom and bride as child till age 21 and 18 years respectively; Fourth, groom if a major (above 18 years), but a child (as defined till 21 years) can still be prosecuted for marrying a minor girl; fifth, while there is a mention of Child Marriage Prohibition Officer (CMPO) and their role, it remains to be executed in most non-serious manner, and sixth, the most critical, is that the PCMA, 2006 is silent on sexual relationship and age of consent. So while the law was in place, the above mentioned loopholes, allowed the key players, especially parents and religious custodians, to happily ignore as nothing changed.
Child marriages continued with an unabated 23.3% in 2020-21, according to the latest National Family Health Survey-5 data. The crime against children shamelessly gets projected and discussed as a sociocultural-religious issue, demanding soft handling with kids gloves. For every outcry by girl child as victim; there are always counter stories of grandmothers who were 11- 12-13 years when married, had dozens of children and lived a happy life. The girl child concerns, her rights violation, health and well-being and other aspirations have never been of priority in our patriarchal society. The syndicate behind child marriages who were dismissive of PCMA, 2006 as a non interfering piece of legislation, only got troubled in 2017. The enactment of Protection of Children from Sexual Offences Act, 2012 (hereinafter POCSO, 2012) filled the vacuum as to sexual relationship and age of consent; issues on which the PCMA, 2006 has been silent. POCSO, 2012 technically covered everyone intending or having sexual relationship with a minor child (read girl), including husbands. However, there was still a breather for the ogling paedophiles, in the form of exception 2 in Section 375, Indian Penal Code, 1860; which allowed unregulated sex with wives above age 15 as a patriarchal chattelhood. In simple words, the IPC exception, protected individuals who intended of marrying and sexually exploiting minor girls and allowed Rape (read sex) by husbands if bride is above 15 years. This protective cover was removed, in 2017, by the Supreme Court of India, in its landmark judgment dated 11 October 2017 in the matter, Independent Thought vs. Union of India; wherein it declared sex with a minor wife as rape.
Interestingly in 2015, the amended Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter JJ Act, 2015) had included children victim or risk of child marriage as category for extending support of the Child Protection System, providing a well structured mechanism under erstwhile ICPS (now rechristened as Mission Vatsalya) as an alternative to the defunct CMPO. Thus, the conjoint reading of PCMA, 2006; POCSO, 2012; JJ Act, 2015 and Independent Thought Judgment has triggered possibilities for countering child marriage with more stringent actions, than mere lip service.
The National Commission for Protection of Child Rights (hereinafter NCPCR) and its State Arms have monitoring roles under both POCSO, 2012 and JJ Act, 2015, to close the implementation loop. So it took a few years for the system to realise the existence of both Substantive Legal position post 2017 judgment and Procedural backing under JJ Act 2015; after which police started registering cases of Child Marriage under POCSO, 2012 and girls were produced before the Child Welfare Committees under the JJ Act, 2015 with support facilities of Child Care Institution (CCI). The sporadic filing of police cases were countered by conflicting Judgments by different High Court.
A judgment of the Punjab and Haryana High Court in the case Javed v. State of Haryana and Others, held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law. This has been challenged in the Supreme Court of India, in the matter NCPCR vs Gulam Deen, where the NCPCR, expressed concerns about use of personal law as a defence for crimes under POCSO, 2012. The Supreme Court Bench on 13 January 2023 recorded in the order “Pending further orders, the impugned judgment (of Punjab and Haryana High Court), should not be relied upon as precedent (in any other case). The Punjab and Haryana High Court judgment differs from the 2017 Independent Thought Judgment of the Supreme Court where it was declared that child friendly progressive legislations such as POCSO, 2012 and PCMA, 2006 were both “secular and special”, having an overriding effect on other legislations.
The patriarchy fought back with another set of salvos, with concerns to protect boys and men who are languishing in Observation homes and Jails; with bizarre arguments to portray welfare of girls. In recent times the questions as to status of ‘romantic relationships’ within POCSO, 2012; has been under much discussion. Forgetting completely how power dynamics, socialization and culture of silence works. How most of such romances are preceded by series of illegal acts of stalking (online/offline), voyeurism, harassment, coercion, threats and allurements trapping the victim to agree. Post 2017 there are growing concerns for the rights of girls ‘to choose’ and ‘agency of the child’ etc as a frontal arguments; with the intent to reverse the situation and providing cover fire to protect men intending to exploit minor girls. There are calls to decrease the age of consent, allowing unrestricted minor marriages. Surprisingly the grave concerns of girls as to her health, education, aspirations etc are missing on the discussion points. What take supremacy are the her right to have sex, right to chose her partner and right to move away (elope) from lawful guardianship with her wish. Sadly none of such arguments have answers as to what after that.
There is a pending Prohibition of Child Marriage Amendment Bill, 2021 already tabled and under consideration before the Parliamentary Standing Committee on Education, Women, Children, Youth and Sports (EWCY&S) which intends to raise the age of marriage for girls at par with the boys to 21 years. The law proposed takes forward the Constitutional Mandate of gender equality based on the recommendations by the Task Force, Niti Ayog (task force to examine matters pertaining to age of motherhood). There can be no doubt that the position of girls in the society has changed and it must continue to do so. Post the implementation of Right to Education in 2009, the number of call received against child marriage by Child Helpline 1098 has increased drastically. The efforts by the government to legally recognize, child marriage as rights violation, taking appropriate punitive action, will have a positive long term impact. Girls, betrayed by family and society, have to be saved from forced early marriages and a strong message of it being a criminal act and not merely a social issue, from the State was much needed. The government without delay must amend Article 21A of the Constitution to extend the right to education for girls till class 12 in the true spirit of “Beti Bachao Beti Padhao”.
Vikram Srivastava is an advocate and founder of Independent Thought. He has been working on child marriage for many years.
