Legal loopholes, cultural mores make annulment of child marriage arduous

The call came at 3 am. “I was married against my wishes five years ago when I was 12,” said a scared voice. “Now my family is forcing me to go to my marital home…”

The voice belonged to Susheela and she said she would run away if she wasn’t rescued. Dr Kriti Bharti of Jodhpur-based NGO, Saarthi Trust, immediately set off for Barmer where the girl lived. It took over a year to annul her marriage, during which time her family disowned her.  “Since that first night when I saw her hiding behind a tree in Barmer, Susheela has been entirely my responsibility,” says Bharti. 

Today, Susheela is a 20-year-old college student, but her low voice and expressionless face show that she is yet to fully recover from the trauma she went through.   
 

Bharti feels that the Prohibition of Child Marriage Act (PCMA), 2006, has failed girls like Susheela. “There is no defined framework of rules to deal with the annulment of child marriage in the law,” she says. The government too has no provision to help girls who are trying to extricate themselves from marriages they were forced into as children. “Saarthi Trust can look after a few, but there are many more out there who need to be rehabilitated through financial aid, education, secure housing facilities and most important, regular counselling support,” Bharti says.  

So far Saarthi Trust has managed to get 36 child marriages annulled. While some cases are settled by mutual consent, others can drag on for years. “Moreover, these cases are dealt with in the family court, which is only geared towards divorce cases,” says Bharti. “There needs to be a separate court for child marriage annulment, as well as a fixed time frame for resolving cases.” 

The PCMA also places the onus of proving the marriage and age at marriage on the appellant. The problem with this is, since they know child marriage is unlawful, families often don’t print invitation cards or take photographs at the wedding. “Without these crucial pieces of evidence, even proving that a marriage took place becomes a herculean task,” says Bharti.

Another loophole in the PCMA is that the victim can ask for annulment at any point upto two years of reaching legal age (18 for girls, 21 for boys). This provision closes the option of annulment for scores of young people who may want their marriages voided after they cross the stipulated age limit. Every week Saarthi Trust gets calls from people who wish to have their marriages annulled when the law can only grant them a divorce. 

Bengaluru-based NGO, Child Rights Trust, managed to change the law in Karnataka when it successfully argued that it was unreasonable to expect a minor to come forward and contest his/her marriage. Today, Karnataka is the first Indian state to have declared that all child marriages are void ab initio (void at the outset).
 

However, this too is fraught with concern as it could further disempower young girls. “Imagine the plight of victims who have been forcibly sent to their husband’s homes, lived there for a while and possibly even had children, only to learn that their marriages have no legal standing.”

Experts feel that the solution lies in preventing child marriages from taking place and then ensuring the necessary follow ups. “When a district administration foils an attempted child marriage, the news is all over the media,” says Bharti. “But I’ve often seen that once the brouhaha dies down, the family quietly goes and performs the ceremony.” 

In Rajasthan, where the highest number of child marriages take place, the government is especially vigilant during the festival of Akha Teej since traditionally, this is the time when many of these marriages are solemnised. But activists feel that the effort needs to be an ongoing one. “The administration needs to be alert all the year round — not just during one particular festival,” says Bharti. 

Co-opting government schools, hospitals and NGOs in the exercise could also help in checking child marriage. The National Human Rights Commission’s (NHRC) core group on child marriage recently recommended that the Right to Education be extended to all students up to 18 years of age as this could encourage people to postpone marriage by a couple of years. 

Some activists say that the key to rooting out child marriage is not to treat it as a crime and punish it, but as a social illness that needs to be cured. Says Razia Ismail of the India Alliance for Child Rights, “We need to make daughters more visible in the community. And the government needs to engage in friendly interactions with the community to understand why people persist in doing what they do.”  

Ismail feels that there should be a continuous dialogue on the issue with community and religious leaders, storytellers and even pop culture icons. This approach, which she refers to as 'anticipatory governance’, could go a long way in changing cultural perceptions about gender roles and child marriage. 

Indeed, until and unless cultural attitudes change, the law alone cannot stamp out a social evil like child marriage that damages thousands of young lives in India.

Child Marriage Laws: A Timeline

• The Child Marriage Restraint Act, 1929, defines legal age of marriage for boys at 18, girls at 14.

• Law amended in 1940 and 1978 to raise legal age of marriage to 21 and 18 for males and females respectively.

• The Prohibition of Child Marriage Act, 2006 (PCMA), makes child marriage ‘voidable’ if desired by either party, providing they were less than two years older than the legal age of marriage. Children born from child marriages considered legitimate. Any male over 18 years of age who enters into a marriage with a minor or anyone who directs or conducts a child marriage punishable with up to two years of imprisonment or a fine.

Key legal landmarks

2015: The Lucknow Bench of Allahabad High Court allows a minor girl to live with her husband, stating that even though she is a minor, her marriage cannot be declared void by others.

2016: In the case of M Janaki vs K Vairamuthu, Madras High Court rules that child marriages do not automatically become void.

2017: Supreme Court rules that sexual intercourse with minor (below 18 years) wife constitutes rape.

2017: Karnataka legislature amends PCMA, making child marriage void ab initio (to be treated as invalid from the outset)

Previous in the series: Child marriage: A social evil that persists despite a law to root it out