Child Marriage By Shadan Seraj At LEXCLIQ

An estimated 650 million girls and women alive today married before their 18th birthday. Referred to as girl child marriage, the formal or informal union of the girl-child before age 18, the practice is increasingly recognized as a key roadblock to global health, development, and gender equality. Although more research than ever has focused on girl child marriage, an important gap remains in deconstructing the construct. Through an extensive review of primary and secondary sources, including legal documents, peer-reviewed articles, books, and grey literature across disciplines, we explore what the term “girl child marriage” means and why it more accurately captures current global efforts than other terms like early, teenage, or adolescent marriage. To do this, we dive into different framings on marriage, children, and gender. We find that there has been historical change in the understanding of girl child marriage in published literature since the late 1800s, and that it is a political, sociocultural, and value-laden term that serves a purpose in different contexts at different moments in time. The lack of harmonized terminology, particularly in the global public health, prevents alignment amongst different stakeholders in understanding what the problem is in order to determine how to measure it and create solutions on how to address it. Our intent is to encourage more intentional use of language in global public health research.

Patriarchy, coercion, social customs, and norms were identified as major social determinants. The two cases demonstrate that social norms influence intergenerational norms and lead to uninformed decision-making and child marriage. In low- and middle-income countries, medical professionals should urgently address child marriage as a major public health problem. Primary care physicians and medical professionals should implement preventive measures and provide anticipatory guidance to prevent child marriage.

Early pregnancy is one of the most dangerous causes and consequences of this harmful practice. Girls married early are more likely to experience violence, abuse and forced sexual relations due to unequal power relations. They are more vulnerable to sexually transmitted infections (including HIV).
Going to school gives girls choices and opportunities in life, allowing them to play an active role in their communities and break the cycle of poverty. Girls who are married are unlikely to be in school. Education, including comprehensive sexuality education, is essential for girls to be able to make informed decisions about their sexual health and well-being.

Law Inconsistencies between different personal laws and secular law

Prohibition of Child Marriage Act, 2006
Under PCMA, the marriageable age for a female is 18 years and for a male, it is 21 years. A decree of nullity can be obtained by a girl who has entered into a child marriage within 2 years of attaining the age of 18 years.

Hindu Marriage Act, 1956
Under the Hindu Marriage Act, only the parties to a child marriage are punishable even if they did not consent to the union. There are no provisions for punishing the parents or people who solemnised the marriage. A girl can get the marriage annulled only if she was married off before attaining the age of 15 and she challenges the marriage before turning 18. There is no express provision to prohibit child marriage per se.

Muslim Personal Law
Muslim law is not codified in India. Therefore, its provisions are based on the interpretation of Quran by scholars. Under the Muslim law, there is no bar to child marriage. A guardian has a right to get a child married. However, the couple has ‘option of puberty’ known as khayar-ul-bulugh where they can repudiate the marriage after attaining puberty. However, they must do so before turning 18 and only if the marriage has not been consummated. The age of marriage under Muslim law is the age of puberty which is 15 years. However, marriage before the age of 7 even if contracted by a lawful guardian, is void ab initio.

Indian Christian Marriage Act (ICMA)
ICMA provides that a preliminary notice is to be issued 14 days prior to the marriage if the marriage is to be contracted between minors. After the expiration of the said period, the parties can go on with the marriage without the consent of their guardians.

Other personal laws
Under Parsi Marriage and Divorce Act (PMDA), a child marriage is invalid. However, the Act is silent regarding age where the provisions for an invalid marriage are listed. Jewish law in India is uncodified. Under it, the marriageable age is the age of puberty which is fixed at 12 years.

Judicial Trends
The judicial pronouncements have time and again highlighted the superseding effect of secular law over the personal law. However, there are inconsistencies between the judgements of various high courts. The Delhi High Court in Lajja v State held that the PCMA prevails over personal laws. The same was reiterated by Karnataka High Court in Seema Beghum v State in 2013. However in 2014, in the case of Yusuf Ibrahim Mohammad Lokhat v State of Gujarat observed that “According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents”. This clearly gives the idea that according to the learned judges, the personal laws should be taken as a primary source to decide the cases of underage marriage. In 2015, the Madras High Court declared that PCMA applies to every community and is not against Muslim law. There are no judgements by Supreme Court to settle this point. Thus, the state of ambiguity and irregularity is not resolved yet.

Child Marriage is a menace that cannot be curbed without support from the society. There have been demands to make child marriage void ab initio under the Prohibition of Child Marriages Act, but Indian society is complicated and complex and making child marriages void will only jeopardise the rights of women who are victims of child marriage. Mere legislation will not serve the purpose unless there is support and backing from the society. Uniform Civil Code would also help in preventing child marriage to some extent.

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