The Supreme Court has suggested that the Parliament may consider outlawing child betrothals by amending the Prevention of Child Marriage Act(PCMA), 2006.
- The Supreme Court judgement came on a Public interest litigation (PIL) by the Society for Enlightenment and Voluntary Action urging steps to check child marriages.
- It has issued guidelines for implementing the Prohibition of Child Marriage Act (PCMA), 2006, and declared it will override all personal laws.
About Child Betrothals
- Definition: Child betrothal is a component of child marriage practices, where a couple is engaged from infancy until they reach the legal age for marriage, potentially leading to marriage in adulthood.
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Global Situation on Child Marriage
- High Incidence of Child Marriage: UNICEF reports that approximately 12 million girls are married each year as children.
- Progress in South Asia: The risk of girls marrying before 18 has decreased by more than a third in the past decade, dropping from nearly 50% to below 30%.
- However, this progress is still insufficient and inconsistent across the region.
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- The prevalence of child marriages in India has halved from 47% to 27% in 2015-16 and 23.3% in 2019-2021.
- National Commission for Protection of Child Rights (NCPR) Report: India has over 11.5 lakh children vulnerable to child marriage.
- Uttar Pradesh topped the list with more than 5 lakh vulnerable children, Assam followed with 1.5 lakh children and Madhya Pradesh has close to 1 lakh such children.
- NFHS Report on Child Marriage:
- According to NFHS-5 data, child marriage has marginally declined.
- West Bengal, Bihar and Tripura top the list with more than 40% of women aged 20-24 years married below 18.
Factors Responsible For Child Betrothals
- Cultural Traditions: Some societies view child betrothal as a norm, often rooted in religious practices that emphasise early marriage to preserve family honour or secure alliances. Example: Rajasthan, Haryana.
Consequences of Child Betrothals
- Loss of Autonomy: Child betrothals limit the freedom of young individuals to make personal choices about marriage, often subjecting them to the wishes of their families or communities.
- Increased Health Risks: Like child marriages, betrothals can lead to early pregnancies, which pose significant health risks for young girls, including anxiety, depression, complications during childbirth and higher mortality rates for both mothers and newborns.
- Negative Impact on Future Generations: Children born to young parents from betrothal arrangements often face higher risks of health issues, lack of education, and poverty, perpetuating a cycle of disadvantage.
- Educational Disruption: Children who are betrothed are often required to take on domestic responsibilities, increasing the likelihood of school dropout.
- Vulnerability to Violence: Those who are betrothed at a young age may be more susceptible to domestic violence and abuse, as they often have less power to negotiate within their relationships.
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- Gender Norms and Lack of Education: Limited access to education for girls can perpetuate the cycle of child betrothal, where it is expected that girls marry early, reinforcing traditional gender roles that prioritise marriage and motherhood over education and personal development.
- Economic Considerations:
- Financial Incentives: Families may view child betrothal as a way to secure dowries or other financial benefits, believing that early engagement can enhance their economic status.
- Reducing Household Burdens: Marrying off daughters at a young age can be seen as a strategy to reduce the financial responsibilities of raising children, especially in impoverished families.
- Economic Alliances: Child betrothals can forge economic ties between families, ensuring mutual support, land agreements, or shared resources, which are crucial in agrarian or traditional societies.
- Adolescent Choices in Marriage: Adolescents may opt to marry or enter informal unions as a means to assert their independence or escape challenging situations, including poverty or family violence.
- Legal Gaps: Insufficient legal frameworks or enforcement mechanisms regarding child marriage and betrothal can enable the practice to persist.
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Supreme Court Recommendations For Ban on Child Betrothals
- Gaps in the Prohibition of Child Marriage Act (PCMA), 2006
- Lack of Provisions on Child Betrothals: While the PCMA seeks to prohibit child marriages, it does not stipulate on betrothals.
- Evasion of Penalties: This gap allows families to evade penalties under the PCMA by betrothing children during their minority and arranging marriages later, once they reach legal age.
- Pending Amendment Bill in Parliament: The Court chose not to delve deeper into the issue, pointing out that an Amendment Bill, introduced in December 2021, expressly stating that PCMA would override personal laws was currently pending with the Parliament.
- Need to Outlaw Child Betrothals: The Court urged the Parliament to outlaw child betrothals and declare a child whose marriage was fixed as “a minor in need of care and protection” under the Juvenile Justice Act.
- Violation of Children’s Rights: It stated that marriages fixed in the minority of a child have the effect of violating their basic right of “free choice” “autonomy” and “childhood”.
- Confusion Between Personal Laws and PCMA: The Chief Justice noted the ongoing confusion in India about tackling the interface between personal laws and the Prohibition of Child Marriage Act (PCMA).
- CEDAW Prohibition: The Court referred to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1975, which explicitly prohibits the betrothal of minors, emphasising the need for India to align its laws with global norms.
- India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), an international treaty aimed at ending discrimination against women.
- Boys as Victims of Child Marriage: The right to childhood is universal and applies to all sexes.
- For the first time, the Court highlighted that boys suffer in child marriages as much as girls.
- Threat to Modern Laws Like POCSO: The centuries-old practice of child marriage threatens the objectives of modern laws like the Protection of Children from Sexual Offences (POCSO) Act, which aims to protect children from sexual abuse.
- The institution of child marriage stipulates for the sexual abuse of child brides by design.
- Violation of the Right to Sexuality: The right to sexuality of a person is systematically dismantled in Child Marriage.
- The ability of a person to experience sexual desire organically and to navigate their choice in intimacy is erased in the name of tradition.
Challenges in Tackling Child Marriage and Bethrothals In India
- Variability in Personal Laws: The presence of diverse personal laws governing marriage complicates the legal landscape. Differing interpretations and applications of these laws can create loopholes that allow child marriages to continue. Example:
- Under the Hindu Marriage Act, 1955, the minimum legal age for marriage is 18 for women and 21 for men.
- Under the Muslim Personal Law, the marriage of a minor who has attained puberty is considered valid.
- Inadequate Implementation of Laws: such as Prohibition of Child Marriage Act and the Protection of Children from Sexual Offences Act.
Laws and Policy Interventions Addressing Child Marriage in India
- Supreme Court Ruling: The Supreme Court of India, in Independent Thought v. Union of India in October 2017, ruled that sexual intercourse with wives below 18 years of age should be considered rape.
- Prohibition of Child Marriage Act, 2006: The Prohibition of Child Marriage Act in 2006, establishes the legal age for marriage at 21 for men and 18 for women.
- Section 16 of the Prohibition of Child Marriage Act allows State Governments to appoint ‘Child Marriage Prohibition Officers (CMPO)’ for specific areas.
- Prohibition of Child Marriage (Amendment) Bill, 2021 : Government has introduced this bill for raising the age of marriage of women to 21 years to make it at par with the men.
- Protection of Children from Sexual Offences Act, 2012: The Protection of Children from Sexual Offences (POCSO) Act, 2012, is aimed at safeguarding children from sexual abuse, exploitation, and pornography.
- Centralised Schemes: Central government initiatives like Beti Bachao Beti Padhao, Dhanlakshmi Scheme (conditional cash transfer program) aim to address the factors contributing to child marriage.
- State-Level Initiatives: Various states have introduced programs targeting factors linked to child marriage, including education, healthcare, and awareness:
- Kanyashree Prakalpa Scheme (West Bengal): Provides financial aid to girls pursuing higher education.
- Advika Scheme of Odisha: for empowering adolescent girls through education and community engagement to prevent child marriage.
- Cycle Scheme (Bihar and other states): Aims to ensure safe transportation for girls to school.
- UP School Reintegration Scheme: Encourages girls to return to school after marriage or childbirth
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Guidelines Issued to the Government by the Supreme Court
- Age-Appropriate Sexuality Education in Schools: The Court recommended introducing culturally sensitive and age-appropriate sexuality education for children to be incorporated into school curricula.
- ‘Child Marriage Free Village’ Initiative: The Court proposed launching a ‘Child Marriage Free Village’ campaign, modeled after the ‘Open Defecation Free Village’ initiative, involving local and community leaders to help eradicate child marriages.
- Online Reporting Portal: The judgment urged the Ministry of Home Affairs to create a designated online portal where instances of child marriage could be reported easily.
- Compensation Scheme for Girls Opting Out of Child Marriages: The Ministry of Women and Child Development was advised to introduce a compensation scheme for girls who choose to exit child marriages.
- Annual Budget for Prevention and Support: The Court recommended that the government allocate an annual budget specifically aimed at preventing child marriages and providing support to individuals affected by the practice.
- Others:
- Appointment of CMPOs: States and Union Territories (UTs) must appoint Child Marriage Prohibition Officers (CMPOs) solely responsible for addressing child marriage issues at the district level.
- Specialized Police Units (SPUs): States/UTs should establish SPUs to handle child marriage cases.
- Special Child Marriage Prohibition Units (SCMPUs): Formation of SCMPUs to further strengthen child marriage prevention efforts.
- Magistrates’ Authority: Empowering magistrates to take suo motu action and issue preventive injunctions to stop child marriages.
- Fast-Track Courts: Exploring the establishment of special fast-track courts to expedite child marriage cases.
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Conclusion
The Supreme Court’s push for a ban on child betrothals underscores the necessity of legal reforms to safeguard children’s rights, but addressing economic barriers is crucial for effective prevention of early marriage and ensuring families have access to education and vocational support.
October 19, 2024
