SC Endorses Karnataka Law Declaring Child Marriage ‘Void Ab Initio’, Asks Other States To Adopt The Route

Merely because something is going on for a long time is no ground to legitimise and legalise an activity which is per se illegal and a criminal offence, the court observed.

The Supreme Court, in its recent judgment criminalizing sex with minor wives, has endorsed the amendment carried out by the Karnataka legislature to the Prevention of Child Marriage Act, which declared that henceforth every child marriage that is solemnized is void ab initio.

It would be wise for all the State Legislatures to adopt the route taken by Karnataka to void child marriages and thereby, ensure that sexual intercourse between a girl child and her husband is a punishable offence under the POCSO Act and the IPC, Justice Madan B Lokur observed in his judgment.

Referring to the amended provision, Justice Deepak Gupta observed: “Any marriage of a child, i.e. a female aged below 18 years and a male below 21 years is void ab initio in the State of Karnataka. This is how the law should have been throughout the country. Where the marriage is void, there cannot be a husband or a wife and I have no doubt that protection of Exception 2 to Section 375 IPC cannot be availed of by those persons, who claim to be “husband” of “child brides” pursuant to a marriage which is illegal and void.”

The Centre, during the arguments, had taken a view that though the practice of child marriage may be reprehensible and it may have been made illegal, the harsh reality is that 20-30% of female children below the age of 18 years are getting married in total violation of the PCMA, and  keeping in view this stark reality and also the sanctity which is attached to a union like marriage, the Parliament, in its wisdom, thought it fit to retain the age of 15 in Exception 2 to Section 375 IPC.

The unimpressed bench observed in the judgment: “Merely because something is going on for a long time is no ground to legitimise and legalise an activity which is per se illegal and a criminal offence… The least, that one would expect in such a situation, is that the State would not take the defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Article 14, 15 and 21 of the Constitution.”