India’s Battle against Child Marriage – A Conflict of Laws

Introduction

The Supreme Court in Shafin Jahan v. Asokan K.M (hereinafter Shafin Jahan) while adjudicating upon the validity of the marriage of a 24-year-old Muslim convert girl Hadiya with Shafin Jahan, created an inadvertent legal complexity.^[1] Justice Chandrachud, in his concurring opinion, while discussing the necessary conditions for a valid Muslim marriage in India, opined that a consensual marriage between individuals who professed Islam and had attained puberty was legal, ostensibly legalising child marriage among Muslims in India.^[2]

Although his finding is a mere obiter as the primary question of law was not related to whether girls can be married on attaining puberty, it nevertheless can have serious ramifications due to dearth of Apex Court precedents on the question of what is the legal age of marriage for girls is, especially because religious laws govern such marriages. This article examines the current legal framework and judicial outlook for combating child marriage. It argues the need for revamping domestic laws and enforcing commitment to various international laws and obligations.

The Implications of Early Marriage for Girls

Child marriages are a norm in patriarchal or patrilineal family structures wherein such marriages manifest as traps for the young girl who is restrained and restricted to traditionally serving her family.^[3] Child brides are neither physically nor emotionally ready to become wives and mothers. They face more risks of experiencing dangerous complications in pregnancy and childbirth, contracting HIV/AIDS and suffering domestic violence.^[4] With limited access to education and economic opportunities, they and their families are more likely to live in poverty. Even developed western countries which have liberal societies have observed that teenage marriage for girls co-relates with a higher likeliness of poverty.^[5] Early marriage acts as a conduit to lifelong servitude – the young brides are illiterate and unaware of their rights in law, and incapable of assertive living in an environment where her choices and opinions matter little. Child marriage, especially in India, lets families avoid expenditure on girl’s education and bequeathing her a share in the ancestral property.^[6]

Conflict of Laws and Indian Courts’ Approach to Child Marriage

The first-ever legislation passed in India against child marriage was the Child Marriage Restraint Act, in 1929. The Act fixed the age of marriage for girls at 14 and boys at 18.^[7] Later, the Child Marriage Restraint (Amendment) Act, 1978 raised the minimum age of marriage to 18 years for girls and 21 for boys^[8]. On similar lines, Prohibition of Child Marriages Act, 2006 (‘PCMA’) which replaced the 1929 Act^[9] and The Hindu Marriage Act, 1955 in consonance with these statutes upheld the minimum age criteria of 18 and 21 for valid marriages.^[10] On the other hand, owing to protests from Muslim organisations, the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act) was enacted wherein marriage and the dissolution of marriage, where the parties are Muslim, would be based on Muslim Personal Law.^[11]  

Even though the PCMA is a secular law, it stands in conflict with the Muslim Personal Law. As per Muslim Personal Law, a girl can marry at the age she attains puberty, which is presumably 15 years as affirmed by the Delhi High Court in Mrs Tahra Begum v. State of Delhi & Ors.^[12] On the other hand, under PCMA, the minimum age of marriage for a girl is 18 years. While enacting the PCMA in 2006, the legislature had sought to resolve the inconsistency between the two laws. However, the clash and the consequent duality of various high courts on which law would supersede has added to the hindrance the legislature sought to remove as an objective while enacting the PCMA. Due to this loophole in legality, states like Kerala, a comparatively socially progressive state with a 100% literacy rate have seen a surprising rise in the number of child marriages, mostly of Muslim girls,^[13] even though studies have shown that lower literacy corresponds to child marriages.^[14]

The Punjab & Haryana High Court, in Mohd. Samim v. State of Haryana held that the Shariat Act is a special Act, whereas, the PCMA is a general Act.^[15] The general provisions would yield to specific provisions, and the Special Act would have predominance over the general Act.^[16] Thus, it is legally feasible in India for a Muslim girl below 18 to get married, as the marriages are governed by Muslim Personal Laws. However, the Gujarat High Court has stated that the PCMA applies to Muslims too.^[17] Similarly, the Madras High Court in M. Mohamed Abbas v. Government of Tamil Nadu held that the PCMA is not against the Muslim religion and would not be detrimental to the Muslim community because the Act would enable Muslim girls to get proper education, empowerment and also the opportunity of understanding how to lead proper marital life like other girls, and therefore cannot be held to be an Act against the Muslim community in general.^[18]

This duality has to be settled by the Supreme Court at the earliest as this lacunae can be exploited to give effect to child marriages. For example, recently citing the Supreme Court’s verdict in Shafin Jahan, a 16-year old Muslim girl has appealed before the Apex Court to validate her marriage arguing that she has attained puberty, challenging the Allahabad High Court decision which termed her marriage invalid because she was not of legal marriageable age.^[19]

Conflict between Constitutional Law and Personal Laws

Even though Muslim personal law still governs the areas of marriage, divorce and other related issues, the constitutional rights of any party cannot be undermined in favour of personal laws. It is inevitable that personal law operates within the extent of the Constitution. It cannot override the rights provided by the Constitution. In a case involving triple talaq in 2017, the Allahabad High Court had noted that personal laws cannot override constitutional fundamental rights.^[20] The Law Commission of India in its 2018 Consultation Paper on Reform of Family Law had stated that personal laws cannot be codified in a way that contradicts the Constitution, and the fundamental rights enshrined in it.^[21] The Commission also asserted that codification of discriminatory customs regardless of how commonly acceptable they may be can lead to the crystallisation of prejudices or stereotypes.^[22]

The contention that marriage falls into the sphere of personal law, and thus Muslim Personal Law bodies should have the liberty to deal with such issues is untenable. The Supreme Court of India in Independent Thought v. Union of India and Anr recognised that child marriage is “discriminatory and constitutes a violation of women’s and girls’ constitutional rights: it limits equal benefit of the law, and denies girls a life of dignity and liberty”.^[23] Child marriage infringes the right to health,^[24] reproductive health,^[25] survival of pregnancy and childbirth, all of which are recognised as subsets of the fundamental right to life under Article 21 of the Constitution.

Muslim Law and the Notion of Consent

Under Muslim law, marriages are civil contracts,^[26] and therefore, the existence of consent is inevitable. In the case of children, the legally relevant question is whether a person who is below 18 years of age but has attained puberty is competent to enter into a marriage contract. Most progressive, modern-day interpretations of the Quran find that child marriage as a concept has no legality in Islamic practice.^[27] The Quran describesmarriage as a combination of peace, comfort, tranquillity and fulfilment of a natural instinct, its purpose is spiritual and emotional companionship between equals implying that both parties need to be compatible as well as psychologically on the same level.^[28] For any progressive interpretation, it is clear that the onset of puberty does not indicate the attainment of maturity required to understand such nuanced concepts. Moreover, maturity per se cannot be measured quantitatively, that it settles in at a fixed age or stage of life, because it varies from person to person, depending on a variety of factors like socio-economic environment, level of education and so forth.

India’s Road to fulfil her International Obligations

India has adopted the Universal Declaration of Human Rights (‘UDHR’) and is a party to the International Covenant on Civil and Political Rights (‘ICCPR’). Para 1 of Article 16 of the UDHR espouses that men and women of “full age” have the right to marry.^[29] Though full age has not been defined, its meaning can be extrapolated from Para 2, which says marriage shall be entered into only with the free and full consent of the intending spouses.^[30] Similarly, Article 23 of the ICCPR also recognises the right of men and women of “marriageable age” and echoes UDHR’s idea of “free and full consent”.^[31] The same can be found in Article 16(b) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which again allows women to enter into marriage only with their free and full consent.^[32]

Although international law does not contemplate any fixed age and uses vague terms like “full age” or “marriageable age”, it certainly espouses that the age should be such as to enable each of the intending spouses to give their free and full personal consent. The most widely accepted definition of a child is a person below 18 years of age, as given in Article 1 of the Child Rights Convention (CRC).^[33] An objective standard of 18 years ensures a minimum level of physical, mental and emotional development.^[34] Consequently, girls married before 18 years of age are at greater risk of domestic violence, are less able to negotiate safe sex, face a greater risk for contracting HIV/AIDS and STDs and are less likely to obtain an education.^[35] Most countries including India do not allow a person below 18 years even to cast a vote or enter into a binding contract because it is assumed that they do not possess the mental development to manage such immense responsibilities; certainly, they do not expect the same children to understand sexual relationships, marital responsibilities and mutual care and respect. These are primarily the reasons why international guidelines recommend the minimum age of 18 for marriage.

Conclusion

While there is no fixed age for marriage prescribed in the Quran, the prerequisite, as mentioned earlier, is maturity. The age of 18 years has been recognised as the justifiable yardstick for requisite legal competence to consent to marriage both in international as well as the national framework. The Law Commission of India in its consultation paper on ‘Reform of Family Law’, recommended that the age of majority, 18 years, must be recognised uniformly as the legal age for marriage for men and women alike as per the Indian Majority Act, 1875.^[36] Most countries, including Islamic republics in their civil codes, declare the minimum legal age to get married to be 18.^[37]

Hence, marrying a girl who is below 18 years of age and thus cannot legally consent to her marriage, is a clear contravention of rights enshrined in ICCPR and CEDAW. Since there is a divergence of opinion between various courts; it is imperative that the Supreme Court step in and cement the legality regarding child marriages in view of India’s international commitments as well as a need for social reform. India should also consider signing the Convention on Consent to Marriage, Minimum Age for Marriages and Registration for Marriages which obligates States to specify a minimum age for marriage and prohibit legal acceptance of any marriage without the full and free consent of both parties.^[38]

The authors, Yash More and Shailendra Shukla, are currently law students at the Gujarat National Law University (GNLU), Gandhinagar.

^[1] AIR 2018 SC 1933.

^[2] Shafin Jahan v. Asokan K.M, AIR 2018 SC 1933, ¶ 74.

^[3] TFF, When is Child Marriage Slavery?, The Freedom Fund, (February 06, 2018), https://freedomfund.org/blog/when-is-child-marriage-slavery/ (Last visited on August 07, 2020). 

^[4] Rachel Kidman, Child marriage and intimate partner violence: a comparative study of 34 countries, Vol 46(2) Int. J. Epidemiol. 663, 662-675 (2017).

^[5] Gordon B. Dahl, Early Teen Marriage and Future Poverty, Vol. 47 Demography (2010).

^[6] Manzoor Ahmad Sofi, Child marriage as a social problem and its impacts on the girl child, IJSRD Vol. 2 Issue. 4 (2017).

^[7] The Child Marriage Restraint Act, 1929, § 2(1)(a).

^[8] Child Marriage Restraint (Amendment) Act, 1978.

^[9] The Prohibition of Child Marriage Act, 2006, § 2(a).

^[10] The Hindu Marriage Act, 1955, § 5.

^[11] The Muslim Personal Law (Shariat) Application Act, 1937, § 5.

^[12] W.P. (Cri.) 446 of 2012 (Del. H.C.) (Unreported).

^[13] Financial Express, Shocking data of child marriages in Kerala! Over 22000 young mothers are under 19 years, March 16, 2019, available at https://www.financialexpress.com/lifestyle/health/shocking-kerala-becomes-hub-of-child-marriages-over-22000-young-mothers-are-under-19-years/1518365/ (Last visited on August 9, 2020).

^[14] Bhubaneshwar SR, Low literacy leads to child marriage: Study, The Hindu, (May 22, 2015 05:48 IST), https://www.thehindu.com/news/national/other-states/low-literacy-leads-to-child-marriage-study/article7233083.ece (Last visited on August 09, 2020).

^[15] W.P. (Cri.) 532 of 2018 (P&H. H.C.) (Unreported).

^[16] Id.

^[17] Yunusbhai Usmanbhai Shaikh v. State of Gujarat, Misc. Criminal Application No. 8290 of 2015 (Guj. H.C.) (Unreported).

^[18] AIR 2013 Mad 237.

^[19] Dhananjay Mahapatra, Times of India, SC to study if under-18 Muslim girl can marry on attaining puberty, September 11, 2019, available at https://timesofindia.indiatimes.com/india/sc-to-study-if-under-18-muslim-girl-can-marry-on-attaining-puberty/articleshow/71072845.cms (Last visited on August 09, 2020).

^[20] Aaqil Jamil v. State of Uttar Pradesh, 2017 SCC OnLine All 1325.

^[21] Law Commission of India, Consultation paper on Reform on Family Law, (August 2018), available at http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf (Last visited on August 02, 2020).

^[22] Id.

^[23] (2017) 10 SCC 800.

^[24] Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal & Anr, 1996 SCC (4) 37.

^[25] Sandesh Bansal v. Union of India and Ors., (W.P. (C) 9061of 2008)(M.P. H.C.)(Unreported).

^[26] Mohammed Salim v. Shamsudeen, Civil Appeal No. 5158 of 2013 (Ker. H.C.) (Unreported).

^[27] Islamic Relief Worldwide, GirlsNotBride, Islamic Perspective on Child Marriage, May 2018, available at  https://www.girlsnotbrides.org/wp-content/uploads/2018/05/IRW-Islamic-persepctive-on-CM.pdf (Last visited on August 10, 2020).

^[28] Latoria, WorldPulse, Does Islam support child marriage?, July 18, 2019, available at https://www.worldpulse.com/community/users/latoria/posts/91418 (Last visited on August 08, 2020).

^[29] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December 12, 1948).

^[30] Id.

^[31] International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171.

^[32] Convention on the Elimination of All Forms of Discrimination Against Women, December 18 1979, 1249 U.N.T.S 13.

^[33] Convention on the Rights of the Child, November 20 1989, 1577 U.N.T.S. 3.

^[34] Wendy Zeldin, Law Library of Congress, Children’s Rights: International Laws, July 17, 2007, available at https://www.loc.gov/law/help/child-rights/international-law.php (Last visited on August 8, 2020).

^[35] Nawal M Nour, Child Marriage: A Silent Health and Human Rights Issue, Winter 2(1), Rev Obstet. Gynecol 51 (2009)

^[36] The Indian Majority Act, 1875, §3.

^[37] Alex Gray, WeForum, These are the countries where child marriage is legal, September 28, 2016, available at https://www.weforum.org/agenda/2016/09/these-are-the-countries-where-child-marriage-is-legal/ (Last visited on August 10, 2020).

^[38] Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, November 7, 1962, 531 U.N.T.S. 231.