GS Paper 2
Syllabus: Laws, institutions and Bodies constituted for the protection of vulnerable sections
Direction: The article discusses the issue of the age of marriage in India and the challenges as the legal age of marriage is not uniform across communities.
Context: The SC agreed to examine whether girls as young as 15 years old can enter into marriage on the basis of custom or personal law although such marriages are illegal under statutory law.
- Last year, Punjab and Haryana HC declared in a Habeas Corpus petition that a Muslim girl is free to marry whoever she wants after reaching puberty if she is under the age of 18.
- The National Commission for Protection of Child Rights (NCPCR) had moved the SC against the HC ruling, arguing that the HC’s ruling essentially allowed a child marriage violating the Prohibition of Child Marriage Act, 2006, which is secular legislation.
- While agreeing to hear an appeal on the case, a bench headed by the Chief Justice of India said that the HC’s decision should not be relied on as a precedent in any other case.
- The SC’s intervention opens up the issue of regulating the minimum age of marriage for women and the impact it has on personal law.
How is the age for marriage determined in India?
- Personal laws that govern marriage for communities prescribe certain criteria for marriage, including age.
- For example, The Hindu Marriage Act, of 1955, sets a minimum age of 18 for the bride and 21 for the groom (same for Christians under the Indian Christian Marriage Act, 1872 and the Special Marriage Act).
- For Muslims, the criterion is attaining puberty, which is assumed when the bride or groom turns 15.
- This means that the legal age of marriage is not uniform across communities.
Laws for the prohibition of child marriage:
- The Prohibition of Child Marriage Act, 2006: Any marriage below the prescribed age is illegal and the perpetrators of forced child marriage can be punished.
- But the law does not have any provision that says the law would override any other laws on the issue.
- Also, child marriages are illegal but not void and they are voidable at the option of the minor party.
- The Protection of Children from Sexual Offences Act, 2012: The law does not recognise consent for sexual activity by minors (less than 18).
Can personal laws be overridden?
- The SC ruled in ‘Shayara Bano v Union of India’ (2017) that the practice of instant triple talaq is unconstitutional, despite the fact that it is permitted under Muslim law.
- The Karnataka HC (2013) ruled that no Indian citizen on the ground of his belonging to a particular religion can claim immunity from the Prohibition of Child Marriage Act.
The Prohibition of Child Marriage (Amendment) Bill, 2021:
- It was introduced by the Union Minister for Women and Child Development to increase the age of marriage for women, and ensure harmony in the age limit across religions.
- During the Parliamentary debate, however, the Bill was criticised as unconstitutional since it breaches Article 25 of the Constitution, which provides freedom of conscience as well as free profession, practice, and propagation of religion.
- Poverty, and lack of access to quality health and education are larger issues that must be addressed in order to address issues such as child marriage.
- As penal laws do not result in societal change, it will be the government’s duty to make the shift acceptable as a social norm.
The National Commission for Protection of Child Rights (NCPCR) drafted guidelines for assessing minors
Q. What are the continued challenges for women in India against time and space? (UPSC 2019)