The Cabinet’s recent proposal to raise the minimum age of marriage for women to 21 years has focussed attention on the need to review the multiple legislations dealing with personal laws. Courts and experts have time and again pointed out numerous contradictions in India’s legal system with regard to the age of consent, the minimum legal age of marriage, punishment for child marriage and a girl’s right to dissolve her child marriage.
The Cabinet’s recent proposal to raise the minimum age of marriage for women to 21 years has focussed attention on the need to review the multiple legislations dealing with personal laws. Courts and experts have time and again pointed out numerous contradictions in India’s legal system with regard to the age of consent, the minimum legal age of marriage, punishment for child marriage and a girl’s right to dissolve her child marriage. Vasudha Venugopal takes a look at some of the laws that govern personal practices:
The Hindu Marriage Act, the Indian Christian Marriage Act, the Special Marriage Act and the Prohibition of Child Marriage Act prescribe 18 years as the minimum age of marriage for women and 21 for men. But for Muslims, who marry under the Muslim Personal Law (Shariat) Application Act, the minimum age for marriage, both for men and women, is the age of puberty, which is assumed to be 15 years. So what is valid under Shariat could actually constitute a ‘child marriage’ under the Prohibition of Child Marriage Act.
Age of consent
The Protection of Children from Sexual Offences (POCSO) Act defines a child as any person below the age of 18 years. This implies that the age of consent for sex is also 18 years. Under JJ Act, 2015, a juvenile cannot be tried as an adult until the age of 18. However, in case of ‘heinous offences’, a juvenile in the age group of 16-18 may be tried as an adult if the Juvenile Justice Board makes an assessment of his physical and mental capacity and concludes that he may be tried as an adult. The Majority Act defines the age of majority as “the age of 18 years and not before”, and 21 years if a guardian is appointed. The Child Labour (Prohibition and Regulation) Amendment Act, which prohibits the engagement of children in all occupations and bans adolescents in hazardous occupations defines a child as a person who has not completed his 14 year of age. The Criminal Law Amendment Act too has raised the age of consent to 18 years.
In the UK, the age of consent is 16 years, while in the US, it varies from 16 to 18 across states. It is 14 years in Germany and Italy, and 15 in France.
While the amended Juvenile Justice (Care and Protection) Act ensures the “safety, security, dignity and well-being” of children, the POCSO Act provides protection to children from the offences of sexual assault, sexual harassment and pornography. In 2020, the UNICEF recommended that a national formal law take primacy over religious laws that perpetuate child marriage and discrimination against girls. The POCSO Act was further amended in 2019 to make it more effective in dealing with cases of child sex abuse.
In India, a child marriage is regulated under a general legislation, mainly the Prohibition of Child Marriage (PCM)Act , and by personal laws for Hindu, Muslim, Christian, Parsi and Jewish communities. The inconsistencies between the Act and personal laws have made it difficult for girls and activists to dissolve child marriages. When a child marriage is reported, the Juvenile Justice Act comes into effect to keep the custody of the minor until he or she attains majority and can make a decision on the marriage. Child marriages can be declared void by a court only if the minor party petitions the court. Any party to a child marriage has two years from attaining majority to approach the court to get the marriage declared void. The PCM Act says only the child bride/groom can file a petition to annul their marriage in their personal capacity, and if the petitioner is statutorily a minor, the petition can be filed only through a guardian or an adult of 18 years or more, with the help from the child marriage prohibition officer (CMPO). While the CMPO is the first point of contact for the complainant, he/she is not held accountable in the Act. But in other legislations, such as POCSO, officers can also be held culpable for dereliction of duty. It has been acknowledged often that the PCM Act is silent on sexual relations in a child marriage. Some states such as Karnataka have amended the Act to make child marriage a cognizable and non bailable offence.
Court rulings on POCSO versus personal laws
In 2016, a Madras High Court bench had pointed out several contradictions and conflicts between the provisions of the Indian Penal Code (IPC), the PCM Act and the POCSO Act while dealing with a case related to sexual relationship between two minors. Earlier this year, the Punjab and Haryana High Court examined provisions of the PCM Act and held that the law does not override personal laws. The Karnataka High Court recently held that personal laws cannot override special enactments such as the POCSO Act, the PCM Act or general laws like the Indian Penal Code when it comes to heinous offences like rape or marriage with a minor girl. Last year, the Gujarat High Court held that the POCSO Act has supremacy over the Atrocities Act, as “the caste of a child cannot override or prejudice his or her security and well-being”.
The Supreme court has also observed that compulsory registration of marriages in each state would be a good move. The court, while declaring the triple talaq method of divorcing a wife unconstitutional, had said all personal laws will have to fall under the constitutional framework and will be subject to “public order, morality and health”.
Family matters & Inheritance
The subject of inheritance, currently governed by various laws such as the Hindu Succession Act, the Indian Succession Act and the Muslim Personal Law (Shariat) Act have also been controversial for years. The Hindu code makes personal law in many aspects for Hindu communities uniform, but leaves out some matters linked to regional traditions, for instance the inheritance rights are different for some communities particularly in the southern states, and some northeastern states. Additionally, the Hindu Minority and Guardianship Act does not automatically apply to members of Scheduled Tribes.