In this piece we are unlocking the provisions of the Prohibition of Child Marriage Act which failed Santadevi in preserving her fundamental rights and left her no option but to fight.

The Law & Child Marriage in India

Child Marriage is a violation of human rights. According to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls. In many parts of the world especially underdeveloped countries parents give their consent to child marriages with the belief that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families; the daughter is married off at a young age to relieve the family from her economic responsibilities. The word ‘Child Marriage’ is contradictory in itself as one might wonder how marriage and child could possibly go together.

But it is a painful reality that even to this day Child Marriages are being solemnized in India undeterred by the law restraining such marriages.

The Law Commission had in a report in 2008 stated that;

“Child marriage is thus child abuse and a violation of the human rights of the child. It has an extremely deleterious effect on the health and well being of the child. It is a denial of childhood and adolescence; it is a curtailment of personal freedom and opportunity to develop to a full sense of selfhood as well as a denial of psycho-social and emotional well being and it is a denial of reproductive health and educational opportunities. The girl child is the most affected and suffers irreparable damage to her physical, mental, psychological and emotional development.”

Looking at the provisions of the Prohibition of Child Marriage Act, 2006 (PCMA), it is baffling how a law that seeks to prohibit child marriages makes such marriages voidable when they should actually be considered completely void from the beginning.

Section 4 of the Prohibition of Child Marriage Act makes a provision for maintenance and residence to female contracting party to child marriage. If the child marriage is cancelled or nullified as under S. 3, then the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage. Whereas Section 6 declared that every child begotten or conceived of such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes.

Hence, the Act not only protects the rights of the girl but also of any children she may have conceived.  The logical fallacy comes while noting Section 3 of the act which states, every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.

The question to be raised here is that if the act is considered wrong on so many levels for good reason, why is it voidable? The premise for enacting a prohibitory law is to curb completely an act that is morally and legally wrong. No other grave criminal offence is a voidable one so the question of making this exception to

child marriages being voidable should not arise. It automatically becomes void ab initio (i.e. from the beginning).

The problem with it remaining voidable is that even if the girl does not wish to remain married, her own parents, the society and even her in-laws can force her to remain in the marriage. To remain trapped in a marriage to which she never consented (or the scarier prospect that her consent wasn’t sought at all). And once we accept the fact that her consent was not given in the very first instance, consent given at a future date cannot right the wrong that is already done. If the girl so wishes, she is well within her rights to properly marry the same person again.  That would be legally and morally justified. Keeping Child Marriages voidable, even though it is at the option of the girl, is not only contrary to logic and general criminal law, but also causes far more issues then it tries to solve.

In the most recent case of Santadevi Meghwal in Rajasthan, took a bold step in asserting her agency in choosing what to do with her life. Married at all of 11 months old, Santadevi couldn’t possibly have consented to this act which we can’t bring ourselves to refer to as marriage. She decided to approach the court to annul her “marriage” which should have been illegal altogether if not for our law that makes it voidable, creating a hostile environment for any young woman who dares defy the diktats of a patriarchal society which took away her freedom before she even knew she had any.

The local panchayat on hearing the complaint of Santadevi levied a fine of Rs. 16 lac (approximately $25,000) against her for wanting to annul the marriage. Although legally, the panchayat does not have jurisdiction or

the power to hear or decide cases of annulment of child marriage (the original jurisdiction rests with the District Court), there is sufficient intimidation from her “in-laws” and “husband” on Santadevi to honor the marriage for fear of having to pay such a huge fine.

Child marriage is a crime against the most basic human rights of any person. Making child marriages absolutely null and void without contest is thus, the most important legal step in protecting the rights of a person who has been bound in this form of marriage at a tender age, with or without consent (minors cannot enter into marriage contracts by consenting to them).

#FreeSantadevi is a pictorial campaign by Price of Silence in New York, FemPositive in Mumbai and 16 December Kranti and Feminism in India in Delhi to support Santadevi in her fight for justice against the practice of child marriage.

Join us in action by sending your photos with the #FreeSantadevi and/or #Breakfree tags to fempositive@gmail.com or pos.theatre@gmail.com

Authors:

Riddhima Sharma & Sourya Banerjee (FemPositive)

FemPositive is a movement to promote inclusivity and positivity in feminism. We advocate equality for all by the systematic breakdown of patriarchy.

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