Abhinav Kumar and Arundhati Venkatraman write about the inadequacy of child marriage laws in India.

Abstract

The laws relating to child marriage in India have been ineffective in curbing this rampant social evil. Statistics reveal consistently high levels of child marriage even till today. The previous law on child marriage – the Child Marriage Restraint Act, 1929 – was deferential in its approach and thoroughly unsuccessful in eliminating the practice of child marriage. Consequently, in 2006, the Parliament enacted the Prohibition of Child Marriage Act. Yet, as this Paper argues, the prevailing Act is equally ineffective, since it creates a legal position which is as ambiguous and uncertain as under the previous legislation. Particularly prominent is the issue of validity of child marriages. The current legislation adopts a prohibitivepunitive approach, in that it merely penalizes the solemnization of such marriages and is silent as to their validity. Consequently, the judiciary has found its hands tied, and has been compelled to accord legitimacy to the practice of child marriage. This is detrimental to society and this Paper argues that the legislature must adopt a sterner stance to eliminate the practice. Further, as it stands today, even in its well-meaning provisions, the Act betrays non-application of mind on part of the legislature, and raises several pertinent issues that are subsequently discussed. First, the Paper analyzes the specific issue of legitimacy of children borne out of child marriages. The evidently hurried drafting gives rise to inconsistency, both within the Act and between the Act and prevailing Hindu personal law. Secondly, the Paper questions the constitutionality of the legitimacy provision of the Act. It is argued that as per its present wording, the relevant provision is unconstitutional. Further, the legislation is riddled with several inconsistencies and anomalies that hinder its efficacy. This is evidenced by, inter alia, the inequality between genders created by its penal provisions, the confusion generated by its reference to the Indian Majority Act, and its inconsistency with the Indian Penal Code. In light of these flaws, the Paper suggests that the Legislature take immediate remedial action to refine the Statute and give it more teeth to eliminate the social evil of child marriage.