Is Child marriage void or voidable? The answer to this question is not uninvolved. In our complete system of legislation, different laws and enactments present different legal status of Child marriage. This situation is the result of piecemeal reforms which were made to counter the problem of Child marriage and is a clear example of an flawed system of legislation.

Who is a Child?

We are going to have a discussion about Child marriage so it’s important for us to know the legally defined meaning of a Child. Section 2 of “The Prohibition of Child Marriage Act, 2006” defines the child as a male who is under the age of twenty-one and a female who is under the age of eighteen. This age was determined in the case of Sushila Gothala vs. State of Rajasthan, 1994. Under the Child Marriage Restraint Act, 1929 initially for females, the age of marriage was set at fourteen, while for boys, it was set at eighteen.

The Child Marriage Restraint Act, 1929 was the first legislative action that made a move against Child marriage, before this several proposals dealing with the age of marriage were proposed in Indian legislatures but were failed. In 1949, with an amendment in this Act, the right age for marriage was fixed at fifteen years for girls and finally in 1978, the minimum age of marriage was decided as eighteen and twenty-one for females and males respectively.

The Child Marriage Restraint Act, 1929 is repealed now by “The Prohibition of the Child Marriage Act, 2006”. The debate on the distinct minimum age of marriage for girls and boys is one of the current legal issues of our country. Some women rights activists including BJP leader Ashwini Kumar Upadhyay have filed petitions calling this age difference violative of Article 14, Article 15, and Article 21 of the Indian constitution and encouragement to the patriarchal society.

Legislatures on child marriage

Child marriage Restraint Act, 1929

The provisions of The Prohibition of the Child Marriage Act, 2006 don’t solve our question about whether Child Marriage is void or voidable in India. It solely comprises punitive sanctions and does not address India’s legal standing with regard to child marriage, thus child marriage will be valid if constituted. Punishments are only a deterrent to this practice, it doesn’t completely unroot its validity.

The Hindu Marriage Act, 1955

As per Section 5 of the Hindu Marriage Act, 1955 there are certain conditions for a Hindu Marriage under this Act but the non-fulfillment of these conditions will not refer to the marriage as invalid. Section 5 clause (iii) states that the marriage between any two Hindus under this Act may be solemnized if the bridegroom has reached the age of 21 and the bride has reached the age of 18 at the time of the marriage.

Now further we have Section 11(void marriages) and Section 12(voidable marriages) of the Act which discuss the situations which will render the marriage constituted under this Act as void or voidable respectively. Section 11 states that the marriage is void in the case of:

• Bigamy [clause (i) of Sec.5]
• The parties to marriage fall under the degrees of Prohibited relations (exception of customs and usage is there) [clause (iv) of Sec.5]
• The parties to marriage are Sapindas of each other ( exception of customs and usage is there) [clause (v) of Sec.6]

Nowhere in this Section, there is mention clause (iii) of Section 5, which tells us that as per the Hindu Marriage Act, 1955 the child marriage is not void. Similarly, in Section 12 there is no mention of the clause for the minimum age for marriage, thus child marriage is also not voidable as per The Hindu marriage Act, 1995. Again, this Act does not comment on the legal position of Child marriage and this predicament is said to be deliberate on the part of lawmakers. The Law institutions are alleged to be shaky for providing an explicit setting on this matter.

Section 13 of the Hindu Marriage Act discusses the valid grounds for a Decree of Divorce. The grounds specified in clauses (1) and (1A) of Section 13 are gender-neutral. Clause (2) of this section provides additional grounds to the wife for a divorce petition. This clause recognizes the Child marriage as the Sub-clause (iv) of Clause (2) reads, “A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years”.

The scope of repudiation is only possible if there was any marriage, thinking technically the law itself is acknowledging Child marriage.

The Prohibition of Child marriage Act, 2006

It is the most recent legislation for the prevention of child marriage. It prima facially remark Child marriage as voidable. Section 3 of the Act specifies that child marriage may be declared void at the request of either of the parties to the marriage and that a petition may be filed with the District Court at any time before the completion of two years after gaining a majority. Whereas, according to Section 12 of the Prohibition of Child Marriage Act, 2006, child marriage is a void marriage under some circumstances.

Section 12 of the Act states that child marriage is void in the following state of affairs when the minor:

Is taken or enticed out of the keeping of the lawful guardian, or by force compelled, or by any deceitful means induced to go from any place; or 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, such marriage shall be null and void.

Section 375 in the Indian Penal Code

Section 375 defines Rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.”

The exception to the Section says that sexual intercourse by a man with his own wife who is not under the age of fifteen will not constitute the offense of Rape. Now, hasn’t the legislature legitimized child marriage by putting this exception?

Having discussed all the provisions in our legislature for upholding the status of child marriage and some judgment we know that as per the Prohibition of child marriage act, 2006 the child marriage is voidable at the option of the parties and void under certain circumstances as discussed above. The provisions of the Prohibition of child marriage act, 2006 will override any other personal laws.

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