Centre favours declaring child marriage as void, SC told

The Centre on Tuesday 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.

Last Updated: Feb 08, 2011, 20:57 PM IST

New Delhi: The Centre on Tuesday 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 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.

PTI