By Dr Swati Jindal Garg
The three-judge bench of the Supreme Court, led by Chief Justice of India DY Chandrachud, and including Justices JB Pardiwala and Manoj Misra, ruled that “marriages involving children violate the free will to have a life partner of choice”. The remark was passed by the Court while hearing a petition filed way back in 2018 by an NGO that alleged a rise in child marriages in the country and non-implementation of the law in “letter and spirit”.
The NGO also sought to address the failure of the authorities to prevent child marriages and pleaded for stronger enforcement mechanisms, awareness programmes, the appointment of Child Marriage Prohibition officers, and comprehensive support systems for child brides—including education, healthcare and compensation—to ensure the protection and welfare of vulnerable minors.
After a thorough analysis of the Prohibition of Child Marriage Act, 2006, the Court noted that the Act seeks to eliminate child marriages by deterrence and prevention. The Act has designed the preventive measures in two ways: one, by an injunction against the commission of child marriage; two, by the appointment of Child Marriage Prohibition Officers. The Court also observed that even though the legislative intent behind the appointment of the Child Marriage Prohibition Officers is to designate an officer to take tailored action against child marriage in each district, the officers often lack adequate training and are ill-equipped to engage sensitively with children.
The Court while passing the judgment also took due note of a study analysing child marriage cases filed nationwide between 2008 and 2017 and observed that Child Marriage Prohibition Officers initiated only seven percent of these cases, which highlights a significant gap in proactive enforcement. The Court, pursuant to these observations, held that given the significant obligations expected to be discharged by a dedicated Child Marriage Prohibition Officer, no officer with other responsibilities to be appointed in that post.
The Court further highlighted that preventive strategies should be tailored to different communities in order to get the best results. “The law will only succeed when there is multi-sectoral coordination. Training and capacity building of law enforcement officers needs to be there,” the CJI said.
Pointing out that there were certain gaps in the Prohibition of Child Marriage Act, the Court also observed that the authorities must focus on child marriage prevention and protection of minors while penalising offenders as a last resort. “The Prohibition of Child Marriage Act, 2006 is a social legislation which requires a collective effort of all stakeholders for its success,” observed the Court.
There is no doubt that child marriage inflicts tangible and lifelong physical and mental injuries on its members. The effect of child marriage denies women their health which is vital to lead a dignified life hence rendering the right to health illusory by all accounts within such an institution.
Article 51 of the Constitution establishes a foundation for integrating international human rights law into domestic legal frameworks, particularly concerning the protection of vulnerable populations such as children. It is perhaps in the light of this obligation that the apex court has formulated specific guidelines for achieving the elimination of child marriage.
It needs to be kept in mind that despite progress in awareness campaigns, there still seems to be a pressing need to enhance accountability mechanisms and ensure mandatory reporting along with taking care of the rehabilitation of the minors affected by child marriages. Areas with high child marriage prevalence need to be strictly monitored in order to address loopholes and ensure swift action against offenders more effectively.
The main aim of these guidelines according to the Court is to prioritise “prevention before protection and protection before penalisation”. The guidelines not only talk about appointing dedicated officers responsible for the functions of the Child Marriage Prohibition officers at the district level, they also address the issue of accountability by providing for reports detailing information on the actions taken to prevent child marriages, as well as the outcomes of any investigations conducted. Further, qua these guidelines, the Ministry of Women and Child Development and the Ministry of Home in each State/UT have been directed to conduct quarterly performance reviews of Child Marriage Prohibition Officers and law enforcement agencies in order to assess the effectiveness of child marriage prevention initiatives, the response time and outcomes of reported case and the level of cooperation and communication between Child Marriage Prohibition officers and local law enforcement agencies, among others.
The Ministry of Women and Child Development has further been directed to execute mandatory refresher training for Child Marriage Prohibition officers every six months so that they are aware of the legal changes relevant to child marriage prevention as well as the best practices and effective strategies for combating child marriage. The guidelines also provide for community engagement techniques to foster collaboration with local stakeholders coupled with advocacy skills to effectively promote child rights and raise awareness about the negative impacts of child marriage.
Noting that the law was silent on the validity of such marriages, the Court kept certain legal questions open stating: “Legal questions are kept open to be decided by the Constitutional court. Interlinking of personal laws with the Prohibition of Child Marriage Act is a point to be looked at.”
It cannot be overlooked that criminalising child marriages will have an adverse impact on families and communities, hence, in order to ensure effective use of penal provisions in the PCMA, the Court also underscored that it is of utmost importance that there is widespread awareness and education about child marriage and the legal consequences of its commission while clarifying that it was not discouraging prosecution of those who commit illegal acts.
Any social legislation, must take into account that its aim is not only to increase prosecution, but also to make its best efforts to prevent and prohibit child marriage.
Even though the United Nations Sustainable Development Goals call for global action to end child marriage by 2030, despite a steady decline in this harmful practice over the past decade, child marriage remains widespread, with approximately one in five girls married in childhood across the globe. Today, multiple crises—including conflict, climate shocks and the ongoing fallout from Covid-19—are threatening to reverse progress towards eliminating this human rights violation.
Child marriage is often the result of entrenched gender inequality, making girls disproportionately affected by the practice. Globally, the prevalence of child marriage among boys is just one sixth compared to the same among girls. Child marriage not only robs girls of their childhood, but also threatens their well-being. Research worldwide is witness to the fact that girls who marry before 18 are more likely to experience domestic violence and less likely to remain in school, and have worse economic and health outcomes than their unmarried peers, which are eventually passed down to their own children, straining a country’s capacity to provide quality health and education services.
It has been seen that child brides often become pregnant during adolescence, not being well versed with the means to protect themselves. This not only increases the risk of complications during pregnancy, but also leads to an increase in childbirth. The practice can also isolate girls from their family and friends, taking a heavy toll on their mental health and often leading to depression. The problem of child marriage is akin to a parasite that attacks a country from within. Addressing this issue requires recognition of the factors that enable it, factors that vary across countries and cultures including poverty, lack of educational opportunities, and limited access to healthcare.
It has been observed that while some families marry off their daughters in order to reduce their own economic burden or to earn income, others may do so because they believe it will secure their daughters’ future or protect them. Norms and stereotypes around gender roles, coupled with the socio-economic risk of pregnancy outside marriage, also uphold the practice of child marriage, making it even more challenging to uproot it from society.
In 2016, UNICEF, together with UNFPA, launched the Global Programme to End Child Marriage. One of its aims was also to empower young girls at risk of marriage or already in union. The programme has been a huge success having reached more than 21 million adolescent girls with life-skills training, comprehensive sexuality education and school attendance support since 2016. Over 353 million people, including key community influencers as well as men and boys specifically, have also engaged in dialogue and communication campaigns to support adolescent girls, or other efforts to end child marriage.
The Prohibition of Child Marriage Act came into force in 2006 to prevent child marriage and ensure the eradication of the practice, having replaced the erstwhile Child Marriage Restraint Act, 1929. Even though a bill to amend the law currently in force in India in order to give it an overriding effect over personal laws is pending before a parliamentary committee, the guidelines passed by the judgment of the Supreme Court will go a long way in empowering those who are aggrieved. Child marriage threatens the lives, well-being and futures of girls around the world.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi