The Rajasthan State Legislative Assembly passed a bill to amend Rajasthan Compulsory Registration of Marriages Act, 2009, which provides for mandatory registration of marriages, including child marriages. This has generated a lot of controversy and outrage. Thus, it is important to know about the law prohibiting child marriages as well as the background of compulsory marriage...
The Rajasthan State Legislative Assembly passed a bill to amend Rajasthan Compulsory Registration of Marriages Act, 2009, which provides for mandatory registration of marriages, including child marriages. This has generated a lot of controversy and outrage. Thus, it is important to know about the law prohibiting child marriages as well as the background of compulsory marriage registration laws.
Prohibition of Child Marriage Act, 2006
The Prohibition of Child Marriage Act, 2006 [hereinafter referred to as 'the 2006 Act'], is a law enacted for the prohibition of solemnisation of child marriages.
A "child marriage" is defined as a marriage to which either of the contracting parties is a child. A male person, if has not completed twenty-one years of age, and a female person, if she has not completed eighteen years of age, is a 'child' for the purpose of this Act. Section 3 of the Act makes the child marriages voidable at the option of contracting party being a child. The following are the offences under the Act:
(1) A male adult marrying a child ( Whoever, being a male adult above eighteen years of age, contracts a child marriage)
(2) Solemnising a child marriage (punishment for whoever performs, conducts, directs or abets any child marriage unless he proves that he had reasons to believe that the marriage was not a child marriage)
(3) For promoting or permitting solemnisation of child marriages (any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage)
The 2006 Act also presumes, that for the purpose of Section 11, where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised. The punishment for all the offences is rigorous imprisonment which may extend to two years or fine upto one lakh rupees or both.
A child marriage shall be null and void in cases where minor child (a) is taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes.
A Judicial Magistrate of the first class or a Metropolitan Magistrate, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, is empowered to issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage. Any child marriage solemnised in contravention of an injunction order, whether interim or final, shall be void ab initio.
Validity of Child Marriages
As observed by the Full Bench of Delhi High Court in Court on its own motion (Lajja Devi) v. State (NCT of Delhi) , the 2006 Act does not make a child marriage void per se but only declares it as voidable. On the one hand child marriage is treated as offence which is punishable under law and on the other hand, it still treats this marriage as valid, i.e., voidable till it is declared as void. The Supreme Court, in Independent Thought vs. Union of India, also found it strange that the 2006 Act while prohibiting a child marriage and criminalizing it, does not declare it void.
The position of child marriages in personal laws is not different. For instance, one of the conditions for marriage under the Hindu Marriage Act, is that the bridegroom and bride should have completed the age of twenty-one years and eighteen years respectively at the time of the marriage. But marriage solemnized in violation of this condition is neither void nor voidable under Sections 11 and 12 of the Hindu Marriage Act. Recently, the Punjab and Haryana High Court observed that even though Muslim Personal law permits marriage upon attaining the age of puberty, the Prohibition of Child Marriage Act, 2006 is a secular law and does not make any such distinction on the basis of religion.
The State of Karnataka, in 2016, passed an amendment to the 2006 Actmaking every child marriage solemnized on or after the date of coming into force of the amendment void abinitio. Similar amendment was made in State of Haryana last year. But there is a view that such a move results in denial of legal status of wife to girls in conjugal life, and deprive them of matrimonial rights, even as it liberates husbands of legal liabilities for desertion or second marriage.
Background To Compulsory Marriage Registration Laws
In the year 2006, the Supreme Court in Seema vs Ashwani Kumar, while considering a transfer petition noticed that in large number of cases some unscrupulous persons are denying the existence of marriage taking advantage of the situation that in most of the States there is no official record of the marriage. The court therefore held that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized. The following directives were issued:
(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.
(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.
In this judgment, the court also noted the affidavit filed by National Commission for Women in which it stated that such a law would be of critical importance to various issues including of prevention of child marriages and to ensure minimum age of marriage. Pursuant to the directions/ observations of the Supreme Court in Seema, many states passed law or framed rules for compulsory registration of marriages.
Rajasthan Compulsory Registration of Marriages Act, 2009
The Rajasthan Compulsory Registration of Marriages Act, 2009, [Hereinafter referred as 'the Rajasthan Act'] provide for compulsory registration of marriage and procedure thereof.
The first procedure in registration is to submit a Memorandum for registration of marriage before the Registrar. Section 8 makes it a duty of the parties to submit such a memorandum within a period of thirty days from the date of solemnization of the marriage to the Registrar within whose jurisdiction the marriage is solemnized or both or any of the parties resides. If the parties have not completed the age of twenty one years, the parents or as the case may be, guardian of the parties, shall be responsible to submit such a memorandum. This has to be done within a period of thirty days from the date of solemnization of the marriage. Section 3 of the Rajasthan Act makes registration of every marriage solemnized between the persons who are citizens of India in the State of Rajasthan. However, it also provides that a marriage shall not be deemed to be invalid solely for the reason that such marriage has not been registered under this Act. Penalty for non-registration is punishable only with fine.
It has to be noted that the amendment bill which is now passed only makes a minor change to this provision: if parties (bride or groom) haven't completed the age of 21, then their parents or their guardians have to submit the memorandum. Now, if this amendment bill becomes an act, then the law would be that if the bride hasn't completed 18 years of age and/or the groom hasn't completed 21 years of age, then their parents or their guardians have the duty to submit the memorandum.
In this context, it has to be noticed that, as per Uttarakhand Compulsory Registration of Marriage Act, 2010, a husband is responsible for getting the marriage registered. If the husband is aged less than 18, his wife has to get it registered. And if the wife is less than 18 year old, her parents would be responsible to get it registered. However, where any party to the marriage or parties to the marriage are minor the Registrar has to inform, to the local Police that the marriage is solemnized in contravention of Child Marriage Restraint Act,1929. [Section 6(4)]. A provision similar to Section 6(4) is absent in Rajasthan Act and thus it appears that the Act legitimizes solemnization of child marriage.
In compliance of the Supreme Court judgment in Seema, the Kerala Government also formulated Rules for compulsory registration of marriages. Local Self Government Authorities later issued circulars making under-age marriages also compulsorily registerable observing that it would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act. The challenge against these circulars was considered by the Kerala High Court in Punarjani Charitable Trust vs State Of Kerala. Upholding these circulars, the Court held that the registration of child marriages would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act. The Court also said that it is desirable for the State Government to instruct the Marriage Registration Officers to intimate the Child Marriage Prohibition Officers, the registration of any marriage which might involve a child, as defined under Section 2(a) of the Prohibition Act, 2006, so that, appropriate steps can then be taken by the Child Marriage Prohibition Officer to prosecute the offenders.
Problem and Solution
As recommended by the Law Commission of India and as done in States of Karnataka and Haryana, the Centre can amend the 2006 Act to declare that child marriage below a certain age as void. But until it does so, and since the 2006 Act does not make child marriages void per se, they are as valid as any other marriage. Therefore, the problem with the Rajasthan Act [and the recent amendment] is not that it enables registration of child marriages, but that it stops with it. Just like the Uttarakhand Act, it should have provided for a route for prosecution of illegal child marriages. Even if there is no such provision, the Registrars, as observed by the Kerala High Court, can intimate the Child Marriage Prohibition Officers and help prosecution of offenders.