‘Who is a child?’ Centre to examine definition
New Delhi: The Centre today told the
Supreme Court that it was examining the issue of removing the
anomalies in the definition of a child in various existing
laws which were coming in way of checking the menace of child
It said the Child Marriage Restraint Act has been
repealed with the new law and the issue has been taken care
"I have received some documents and I will go through
them and file an appropriate response," Additional Solicitor
General Indira Jaising said before a Bench comprising Chief
Justice K G Balakrishnan and Justices P Sathasivam and A K
Ganguly which adjourned the matter for four weeks.
During the hearing, advocate Aparna Bhat 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.
Earlier last year, the apex court was told that the
Law Commission was examining anomalies in the definition of
child in various existing laws.
The National Commission for Women and the Delhi
Commission for Women had said there were anomalies in the
definition of child.
They contended that the variance in age in different
Acts to define a `minor` or a `child` was coming in the way of
dispensation of justice, particularly in cases of girls below
18 years marrying after eloping with adult male.
It was pointed out that the new act has not done enough
to wipe out the provision in the Indian Penal Code which
allows a man to have intercourse with a minor wife.
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 address the concerns and shortcomings pointed out in
the recently enacted law aimed at preventing child marriage.
Such issues of anomalies in age to permit marriage are
also there in personal laws along with other laws governing
marriages, which makes the dispensation of justice difficult,
they have said.
The Acts whose implementation has suffered include
Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955
and Juvenile Justice (Care and Protection of Children) Act,
The provisions of these Acts, Indian Penal Code and
Sharia Law have several anomalies related to prevention of
child marriage, which in recent times was reflected in the
orders of the apex court and High Courts, the petition had
Citing an example of the anomalies, the petition had
said while the Child Marriage Act prevents marriage of girls
and boys below 18 year and 21 years, sections 5 and 11 of the
Hindu Marriage Act did not authorise the court to declare as
void the marriage on the ground that either of the party was
Further, the Juvenile Justice Act defines a child as a
person below 18 years but the 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.
Similarly, as per the Sharia law, marriage above 15
years is valid.