The Centre has told the Supreme Court that it was in favour of declaring as illegal child marriage which has been held as valid by courts in several cases, despite it being an offence.
The government said that under the present law despite being an offence child marriage is “valid” and can be declared illegal only when the minor can repudiate the marriage by approaching the court.
Additional Solicitor General Indira Jaising on Tuesday submitted that in order to curb child marriage it is necessary that it should be declared illegal as suggested by a Law Commission report.
Under the Prohibition of Child Marriages Act, whoever performs, conducts, directs or abets any child marriage is punishable with rigorous imprisonment up to two years and fine which may extend to one lakh rupees.
The Act says that child marriage can be declared illegal only at the option of contracting party being a child. Relying on the provision of the Act, different High Courts have declared marriages involving minors as valid.
The ASG submitted before a bench of justices Dalveer Bhandhari and Ashok Kumar Ganguli, that “In group cases from Andhra Pradesh and Delhi, the High Courts had observed that such marriages are neither void nor voidable if a woman appears before the court and makes statements that she has voluntarily married the man.”
“It has enabled a man who marries a girl below the age of 18 to plead in his defence that he entered into a valid marriage. Declaring marriage void below the age of 16 to 18 may address this issue,” she said.
The court also expressed concern that child marriage is still prevalent in the country and such marriages are performed in the presence of law enforcement authorities.
“Hundreds of such marriages are taking place. Many of them are performed in the presence of public authority including ministers. Such marriages are publicised and the authorities are aware of it,” the court said.
The bench made the remarks while dealing with the National Commission for Women’s petition challenging High Courts’ order for declaring child marriage as valid.
Advocate Aparna Bhat, appearing for the Commission, drew the bench’s attention to a Delhi High Court judgement which held valid a 15-year-old Muslim girl’s marriage with an elderly man on the ground that the girl has reached the age of puberty.
The Court had asked the Centre to file a comprehensive affidavit on various anomalies in different laws for declaring a girl ‘minor’ which hinder efforts to curb child marriage.
Responding to the court’s query, the ASG said that uniformity on age for all laws is not possible as every Act has been framed with a peculiar social objective.
The court had during the last hearing said “if you allow such marriages, the whole purpose of banning child marriages is defeated. It is a serious matter. It will have serious repercussions throughout the country.”
Citing an example of anomalies, the petition had said while the Child Marriage Act prevents marriage of girls and boys below 18 year and 21 years respectively, sections 5 and 11 of the Hindu Marriage Act does not authorise the court to declare the marriage void on the ground that either of the party is under-age.
Additionally, the Juvenile Justice Act defines a child as a person below 18 years of age but IPC has no such definition and the age of consent for sexual intercourse has been laid down as 16 years.
In provisions dealing with rape, the statute says it would not constitute rape if a man has sexual intercourse with a person who is his wife above 15 years. As per Shariat law, marriage above 15 years is valid.
During the earlier hearing, advocate Aparna Bhat had said the new legislation, the Prohibition of Child Marriage Act, 2006, which got the President’s assent in Janaury 2007, did not completely address the concern over child marriage.
She contended that variance in age in different laws to define a ‘minor’ or a ‘child’ was coming in the way of dispensation of justice, particularly in cases relating to girls below 18 years marrying after eloping with adult males.
It was pointed out that the new law does not even negate the effect of the IPC provision which allows a man to have intercourse with his minor wife.
A similar concern was raised by the Delhi High Court and Andhra Pradesh High Court which expressed their helplessness in declaring as illegal the marriage of minor girls.
The court wanted to know from the Centre how it was going to deal with the shortcomings pointed out in the recent laws aimed at preventing child marriage.