No Acts & Articles mentioned in this case
2024 INSC 790 Page 1 of 141
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C ) No. 1234 of 2017
Society for Enlightenment and Voluntary Action & Anr. …Petitioners
Versus
Union of India & Ors. …Respondents
Page 2 of 141
J U D G M E N T
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
I. Background ................................................................................................... 6
II. Procedural history and submissions .......................................................... 9
III. A vicious cycle: socio-economic determinants and effects of child
marriage .............................................................................................................. 14
IV. A national reckoning: child marriage in India ...................................... 18
A. The age of consent ................................................................................. 18
i. Rukhmabai’s case ................................................................................. 20
ii. Phulmoni Dasi’s case ............................................................................ 24
B. Regulating the age of marriage ............................................................. 25
C. The Child Marriage Restraint Act 1929 ................................................. 27
V. Contemporary legal framework ................................................................. 31
A. The Prohibition of Child Marriage Act 2006 .......................................... 31
i. Recourse to the wedded: maintenance, residence and custody ........... 34
ii. Penalties for child marriage ................................................................... 38
iii. Preventive measures under the PCMA ................................................. 45
Injunctions against child marriage ............................................................. 45
Child Marriage Prohibition Officers ........................................................... 49
Page 3 of 141
B. The Protection of Children from Sexual Offences Act 2012 ............... 53
C. The Juvenile Justice (Care and Protection of Children) Act 2015 ...... 55
D. The Commissions for Protection of Child Rights Act 2005 ................ 59
E. The Legal Services Authorities Act 1987 .............................................. 61
F. Policies formulated by the Union Government .................................... 62
G. States’ efforts to curb child marriage ................................................... 65
i. Training schemes .................................................................................. 65
ii. Awareness programs............................................................................. 66
iii. Financial incentives ............................................................................... 68
iv. Other initiatives ...................................................................................... 69
v. Impact analysis of State schemes ......................................................... 70
VI. Traversing frontiers: international human rights norms ..................... 72
A. Universal framework ............................................................................... 73
i. Universal Declaration of Human Rights ................................................. 73
ii. Recognition in political conventions ....................................................... 74
iii. Targeted focus: the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the
Child. ............................................................................................................ 75
B. Regional framework ................................................................................ 77
i. African Union ......................................................................................... 78
ii. European Union .................................................................................... 80
iii. SAARC .................................................................................................. 83
Page 4 of 141
C. Rights based framework ........................................................................ 84
i. Right to free choice and autonomy ........................................................ 86
a. Right to free and informed consent .................................................... 87
b. Right against gender-based violence ................................................. 89
ii. Right to education ................................................................................. 91
a. Right to primary education ................................................................. 91
b. Right to be informed........................................................................... 92
c. Right to sex education ....................................................................... 93
iii. Right to development of children ........................................................... 94
VII. India’s obligation .................................................................................... 96
VIII. Constitutional guarantees against child marriage ............................... 98
A. Right to self-determination: choice, autonomy and sexuality of
children ......................................................................................................... 100
B. Right to health ....................................................................................... 105
C. Right to childhood: education and development ............................... 107
D. Reiterating the States’ obligations towards combatting child marriage
112
IX. Way forward .......................................................................................... 116
A. Legal Enforcement ................................................................................ 118
B. Judicial Measures ................................................................................. 122
C. Community Involvement ...................................................................... 124
D. Awareness Campaigns ......................................................................... 125
Page 5 of 141
E. Training/Capacity Building ................................................................... 128
F. Educational and Social Support .......................................................... 131
G. Monitoring and Accountability ............................................................ 133
H. Technology-Driven Initiatives for Reporting Child Marriage ............ 135
I. Funding and Resources ....................................................................... 136
X. Suggestions .............................................................................................. 138
XI. Conclusion ............................................................................................ 140
PART I
Page 6 of 141
“Sir, I am one of those unfortunate Hindu women, whose hard lot it is to suffer the
unnameable miseries entailed by the custom of early marriage. This wicked
practice has destroyed the happiness of my life. It comes between me and that
thing which I prize above all others—study and mental cultivation. Without the least
fault of mine I am doomed to seclusion; every aspiration of mine to rise above my
ignorant sisters is looked upon with suspicion, and is interpreted in the most
uncharitable manner.”
1
~ Rukhmabai
I. Background
1. The Petitioner has approached this court under Article 32 of the Constitution to
raise an issue which has been debated in our nation for over one and a half
centuries. The Petitioner is an NGO that has worked extensively against child
marriage. The Petitioner’s primary grievance is that despite the enactment of
the Prohibition of Child Marriage Act 2006
2
, the rate of child marriages in India
is alarming. The Petitioner seek s to address the failure of authorities to prevent
child marriages. The Petitioner has sought stronger enforcement mechanisms,
awareness programs, the appointment of Child Marriage Prohibition Officers,
and comprehensive support systems for child brides – including education,
healthcare, and compensation, to ensure the protection and welfare of
vulnerable minors. Accordingly, t he Petitioner prays for the issuance of effective
guidelines.
1
Extracted from a letter written by Rukhmabai to the Times of India on 26 June 1885.
2
‘PCMA’
PART I
Page 7 of 141
2. Child marriage is a social evil, and its commission is a criminal offence. Despite
the near-universal agreement on the ills of child marriage, its commission and
prevalence have been sobering. Child marriage is the phenomenon of children
being married before they attain the minimum legal age under the law. Globally,
children continue – despite legal norms to the contrary – to be married before
they reach the age of eighteen years. Patriarchy, gender inequality, poverty and
lack of education and employment lead to child marriage.
3
The UN Convention
on the Rights of the Child regards child marriage a s a violation of human rights
4
.
While both sexes are inflicted with the violence of child marriages, the
prevalence of child marriage globally among boys is one- sixth that of girls.
5
3. Elimination of child, early and forced marriages has been committed to by one
hundred and ninety-three nations, including India under target 5.3
6
of the
Sustainable Development Goals
7
. Section 2
8
of PCMA defines child marriage
as a marriage to which either of the contracting parties is a child. Girls below
the age of eighteen and boys below the age of twenty-one are deemed to be
children under the PCMA .
9
3
UNICEF (2023). Child Marriage. https://www.unicef.org/protection/child- marriage; Anita Raj (2010). When
the mother is a child: the impact of child marriage on the health and human rights of girls. Archives of Disease
in Childhood, 95(11), 931. BJM Journals.
4
United Nations (1989). Convention on the Rights of the Child.
5
UNICEF (2019). 115 Million Boys and Men Around the World Married as Children.
https://www.unicef.org/press-releases/115- million-boys-and-men-around-world-married-children- unicef.
6
United Nations (2015). Transforming our world: The 2030 Agenda for Sustainable Development.
7
‘SDG’
8
“2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a
female, has not completed eighteen years of age;
(b) “child marriage” means a marriage to which either of the contracting parties is a child;
(c) “contracting party”, in relation to a marriage, means either of the parties whose marriage is or is about to be thereby solemnised; …”
9
Section 2(a), PCMA.
PART I
Page 8 of 141
4. The 2019- 2021 National Family Health Survey-5
10
pits child marriage at 23.3%
of girls
11
under the age of eighteen and 17.7% of boys
12
under the age of
twenty-one. The data is based on a survey of women aged 20- 24 and men aged
25-29. This is a reduction from the 2015- 2016 NFHS-4 which showed that
26.8% of girls and 20.3% of boys marry under the legal age of marriage. Child
marriage has been on a steady decline in India. The prevalence of child
marriages in India has halved since the enactment of the PCMA in 2006 from
47% to 27% in 2015- 16 and 23.3% in 2019- 2021.
13
The decline in child
marriage in India is in line with the global trend. In the past decade, the
proportion of girls married as children has dropped by 15%.
14
Despite these
enormous strides globally and in India, no region in the world is on track to attain
the SDG-5 target.
15
It is estimated that the progress in reducing child marriage
would need to be twelve times faster than the rate observed in the past decade
to achieve the SDG-5 target.
16
5. The term child marriage is an oxymoron. A child implies a person whose
capacity to make legal decisions is not fully developed. On the other hand,
marriage is an institution with legal standing. The l aw seeks to govern the
legitimacy of sexual activity and marriage is the institution in which it is
legitimised. Marriage dictates the framework rules of permissible and
10
‘NFHS-5’
11
Data based on the survey of women ages 20- 24, NFHS-5.
12
Data based on the survey of men ages 25-29, NFHS-5.
13
NFHS-3, NFHS-4, NFHS-5.
14
UNICEF (2018). Child Marriage: Latest trends and future prospects. https://data.unicef.org/resources/child-
marriage- latest-trends-and-future- prospects/.
15
Ibid.
16
Pintu Paul (2020). Child Marriage Among Girls in India: Prevalence, Trends and Socio- Economic
Correlates. Indian Journal of Human Development, 14(2), 304. Sage Journals .
PART II
Page 9 of 141
impermissible social behaviours. However, a child is incapable of
understanding the broad and serious obligations expected from members of a
marital union. Child marriage often deprives children of intellectual, social and
psychological development and carries life- threatening risks. It therefore comes
as a great tragedy that the term child marriage is normalised to a point where
this blatant paradox is lost on most people.
II. Procedural history and submissions
6. This Court issued notice to the Union of India on 13
April 2018. On 13 April
2023, this Court further directed the Ministry of Women and Child Development
to file a status report elucidating the following:
(i) The data collected from various States bearing on the nature and extent
of child marriages;
(ii) Steps taken to implement the provisions of the PCMA; and
(iii) The policies formulated by the Union government to effectuate the
purpose.
The Court also directed the Union to consult the States on the appointment of
Child Marriage Prohibition Officers
17
under Section 16
18
of the PCMA and
17
‘CMPO’
18
“16. Child Marriage Prohibition Officers
(1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or
such part thereof as may be specified in that notification, an officer or officers to be known as the Child
Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.
(2) The State Government may also request a respectable member of the locality with a record of social
service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public
sector undertaking or an office bearer of any non -governmental organisation to assist the Child Marriage
Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act
accordingly.
PART II
Page 10 of 141
submit a comprehensive affidavit on whether the officers appointed as CMPOs
are given other multifarious duties.
7. The Ministry of Women and Child Development has submitted that it has
successfully collected data from all States and Union Territories except
Arunachal Pradesh, Goa, Manipur, Odisha, Sikkim, Jammu & Kashmir and
Lakshadweep. The data placed on record by the Ministry reflects that many
child marriages are prevented before their solemnization. The remaining cases
are investigated and prosecuted under the law. We shall analyse the data
submitted by the Ministry of Women and Child Development in the course of
this judgment.
8. On 10 July 2024, this Court heard Ms Mugdha, learned counsel appearing on
behalf of the Petitioner as well as Ms Aishwarya Bhati, learned Additional
Solicitor General appearing on behalf of the Union of India. While reserving the
judgment this Court granted liberty to the Petitioner and the Union to make their
submissions in the form of a note including suggestions on ways for the
effective enforcement of PCMA.
(3) It shall be the duty of the Child Marriage Prohibition Officer
(a) to prevent solemnisation of child marriages by taking such action as he may deem fit;
(b) to collect evidence for the effective prosecution of persons contravening the provisions of this
Act;
(c) to advise either individual cases or counsel the residents of the locality generally not to indulge
in promoting, helping, aiding or allowing the solemnisation of child marriages;
(d) to create awareness of the evil which results from child marriages;
(e) to sensitised the community on the issue of child marriages;
(f) to furnish such periodical returns and statistics as the State Government may direct; and
(g) to discharge such other functions and duties as may be assigned to him by the State Government.
(3) The State Government may, by notification in the Official Gazette, subject to such conditions and
limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be
specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject
to such conditions and limitations, as may be specified in the notification.
(4) The Child Marriage Prohibition Officer shall have the power to move the Court for an order under
sections 4, 5 and 13 and along with the child under section 3.”
PART II
Page 11 of 141
9. The Petitioner has submitted that:
(i) Data from NFHS-4 and NFHS-5 reflects that high rate of child marriages
have been solemnised. The Petitioner submits that this can be gathered
from the rate of adolescent pregnancies in multiple States;
(ii) Under Section 16 of PCMA, CMPOs are empowered to prevent child
marriages. However, findings from HAQ - Centre for Child Rights
19
show
that CMPOs are often tasked with multiple responsibilities, limiting their
capacity to focus on child marriage prevention. Many States designate
officials holding other substantial roles, such as Child Development Project
Officers
20
or District Welfare Officers as the CMPO. This leads to CMPOs
prioritising their duties in the discharge of other roles – defeating the
purpose of appointing CMPOs - as they would not have the time, monetary
and human resources to carry out the responsibilities enumerated in the
Act. For instance, Section 3(1) of the Mizoram Gazette mandates that the
District Social Welfare Officer or, in their absence, the CDPO acts as the
CMPO;
(iii) Responses to various requests under the Right to Information Act 2005
21
by all States and UTs reveal significant disparities in the appointment and
functionality of CMPOs. Of the 36 States and UTs, only 23 responded, and
only 14 provided substantive data. Most of the responses indicated the
19
HAQ Centre for Child Rights (n.d.). Child Marriage in India: Achievements, Gaps and Challenges,
Response to Questions for OHCHR Report on Preventing Child, Early and Forced Marriages for Twenty-
sixth Session of the Human Rights Council.
20
‘CDPOs’
21
‘RTI’
PART II
Page 12 of 141
transfer of the RTI to other departments without concrete answers.
Notably, only Haryana and Sikkim reported having exclusively appointed
CMPOs. In contrast, other States and UTs assign these duties to already
overburdened officers, such as District Magistrates or CDPOs,
undermining the effectiveness of CMPOs;
(iv) There is a discrepancy between data from the National Crime Records
Bureau
22
and information obtained from various S tate departments in
response to RTIs. For example, in Rajasthan, the Department of Women
and Child Development reported 573 and 567 incidents of child marriage
in 2015- 16 and 2016- 17, respectively, despite only 576 cases being
formally recognized by authorities in 2016- 17; and
(v) Analysis of data further reveals not only a low number of child marriage
cases reported to the police compared to NFHS-4 data but also an
exceptionally low conviction rate.
10. Therefore, the Petitioner prays for directives to authorities at multiple levels to
prevent and address child marriages, particularly during mass events, ensure
accountability for officials who fail in this duty, and appointment of CMPOs with
exclusive powers. They also seek collaboration with NGOs, inclusion of child
marriage awareness in school curriculums, and comprehensive government
support for affected child brides.
22
‘NCRB’
PART II
Page 13 of 141
11. The Union of India has submitted that:
(i) Child marriages persist due to societal perceptions and economic
pressures. Girls are often seen as burdens, with early marriage viewed as
an appropriate option. Additionally, investment in a girl’s education is
frequently regarded as wasteful, leading some families to end schooling
early and consider marriage instead. Poverty and structural inequalities,
including gender, caste, and class, further drive child marriages;
(ii) The PCMA was introduced to criminalize the facilitation and solemnization
of child marriage, aiming to deter this harmful practice. Additionally, the
Beti Bachao Beti Padhao
23
program addresses gender-based issues by
promoting girls' education and empowerment, thereby supporting delayed
marriage and promoting a culture that values girls’ rights and
opportunities;
(iii) Census data from 2001 and 2011 indicates a decrease in child marriage
rates;
(iv) Data from NFHS-4 shows a reduction in the percentage of women aged
15-19 who were mothers or pregnant, from 16% in 2005- 06 to 7.9% in
2015- 16. The National Commission for the Protection of Child Rights
24
has
identified 70 high- risk districts across 13 states with the highest child
23
‘BBBP’
24
‘NCPCR’
PART III
Page 14 of 141
marriage rates, and 52 of these districts are covered under the BBBP
scheme;
(v) Programs like the Mahila Shakti Kendra aim to reach rural women and
girls, enhancing awareness and equipping them with knowledge on
gender equality. The program operates District Level Centres for Women
across 640 districts to implement initiatives that improve women’s status
and address gender -based challenges; and
(vi) States and Union Territories
25
have also taken various measures for the
elimination of child marriages.
III. A vicious cycle: socio-economic determinants and effects of child marriage
12. All child marriages are forced marriages. Many parents wish to marry their girl
child early to guard against any aspersions on the girl’s virtue of virginity and to
mitigate the economic costs associated with raising a child, payment of dowry
and conducting a wedding. The economic factors of child marriage are borne
out by studies that reflect that child marriage in India predominantly occurs in
less educated, rural and poor families.
26
Parents in such families are informed
by a survivalist and patriarchal mindset that responds to social, cultural and
religious norms and economic necessity.
13. Culturally embedded concepts of virginity and chastity are used to control the
sexuality of women by men and the family. They are not just markers of control
25
‘UTs’
26
Sanjay Kumar (2020). Trends, Differentials and Determinants of Child Marriage in India: Evidence from
Large- scale Surveys. Economic & Political Weekly, 55(6), 57.
PART III
Page 15 of 141
but are also made into identifiers of family and community honour. By placing
an overemphasis on these constructed virtues, a false sense of protectionism
is generated to safeguard girls against their ability of self-exploration and to
form meaningful bonds on their own. Honour, purity, and decisional incapacity
are presented as the domain of womanhood and its protection is laid in the
institution of marriage. Parents marry their daughters early to meet the
prescription of a society rooted in parochial norms of controlling a woman’s
sexuality. While patriarchy promises respect to its adherents, it only leads to the
subordination of women who are deprived of any meaningful avenue to develop
their agency and exercise their autonomy. The malleability of a girl child and
her inability to form informed opinions are looked up to as desirable qualities.
These qualities are understood to earn her favour in the eyes of her in- laws in
serving them as they see fit.
27
In less educated, rural and poor setups, members
of the community lack effective opportunities and life chances. Investing in the
education and development of a girl is seen as unworthy and unrealistic. The
lack of alternative means for education, employment and skill development for
women also incentivises parents to give their daughters away in child marriage.
14. Parents also believe that their daughters would be saved from pregnancy out
of wedlock and be guarded against unsolicited advances by men if she were to
be married early. Many marry their daughters off but delay the consummation
of marriage till the age of puberty. A gauna ceremony is performed to mark the
growing up of the daughter and her departure from the parental home to the
27
See RC Roy (1888). Child Marriage in India. The North America Review 147(383) 415- 423. University of
Iowa.
PART III
Page 16 of 141
marital home upon getting menses. The delay in sending a child bride to her
marital home is informed only by the bodily development of the girl and is
unbothered by any other consideration, such as the mental and educational
development of the person or indeed her own choice i n the matter. The
compounding of one evil to emerge out of patriarchy with another solution
rooted in patriarchy has the effect of culturally stunting society and depriving
children, girls in particular, of any avenue to exit from the cycle of generational
oppression.
15. Notably, the very causes of child marriage ensure that members of the marital
union and their families are stuck in the vicious cycle of social and economic
oppression. Early marriage in girls, places a burden on them to discharge their
duty of giving offspring to the family. Sexual activity within the marital union is
unregulated and even encouraged. A child, forced to prove her fertility , is
exposed to enormous health risks. Her body is mentally and physically
unprepared for sexual engagement which is forced upon her. Girls in child
marriage report early, frequent and unplanned pregnancies which are linked to
increased risk of maternal and infant morbidity and mortality.
16. Adolescent mothers are also likely to experience fistula, pregnancy
complications and death during childbirth.
28
Women married as children are
likely to have their first child before the age of eighteen and are likely to have
had at least three or more childbirths and a repeat childbirth in less than twenty-
28
Anita Raj, Niranjan Saggurti, Donta Balaiah, Jay G Silverman (2009). Prevalence of child marriage and it
effect on fertility and fertility-control outcomes of young women in India: a cross-sectional, observational
study. Lancet 373 1993- 89.
PART III
Page 17 of 141
four months.
29
Currently, between the ages of 15 and 19, 7% of women have
begun childbearing; 5% of women have successfully delivered, while 2% of
women are pregnant with their first child.
30
The rate of teenage pregnancy is
higher in rural India at 8%.
31
States which have reported the highest levels of
teenage pregnancies are Tripura (22%), West Bengal (16%), Andhra Pradesh
(13%), Assam (12%), Bihar (11%) and Jharkhand (10%).
32
17. These factors have a detrimental effect on maternal mortality and morbidity.
Adolescent mothers are likely to develop lifelong health consequences from
sexual encounters and childbearing. They are also more likely to be steriliz ed
at an early age which is indicative of a lack of control over their choices.
33
Families after bearing the desired number of offspring, force women to undergo
sterilization to control further reproduction in the family.
34
The high rate of
sterilization found in women married as children would also lead to more
unprotected sex which leads to a risk of contracting sexually transmitted
diseases.
18. Lack of healthcare access in rural areas and for poor families may lead to further
health complications and unsafe medical procedures including unsafe
abortions.
35
Further, women married as children are deprived of educational
and employment opportunities thereby effacing them from public life. Education
29
Ibid.
30
NFHS-5, 116.
31
Ibid.
32
NFHS-5, 117.
33
Anita Raj (2010). When the mother is a child: the impact of child marriage on the health and human rights
of girls. Archives of Disease in Childhood, 95(11), 931. BJM Journals.
34
Ibid.
35
Ibid.
PART IV
Page 18 of 141
has an inversely proportional effect on child marriage. 87% of married
adolescent girls did not attend school.
36
In India, women having twelve or more
years of schooling tend to marry much later than other women. The median age
at first marriage for women between the age of 25-49 increases from 17.1 years
for women with no schooling to 22.8 years for women with twelve or more years
of schooling.
37
This is in line with studies conducted at a global level which
reflect that child marriages are 66% lower among girls who complete secondary
education and 80% lower among those who pursue higher education.
38
IV. A national reckoning: c hild marriage in India
A. The age of consent
19. The trajectory of child marriage in India is stubborn and persistent. It has
travelled centuries, and its opposition seems to have only incremental
successes each time. Still widely prevalent,
39
the first movement against child
marriage in modern India began in the latter part of the nineteenth century.
Social reformers were trying to build public opinion against child marriage. Two
concerns primarily animated the call against child marriages by early reformers.
The first was the high number of early widows.
40
Because the rate of mortality
was low, many girls found themselves in widowhood in the early years of their
lives. The second reason behind seeking child marriage reform was to protect
36
Government of India (2011). Census of India 2011.
37
NFHS-5, 208.
38
UNICEF (2019). Evidence Review: Child Marriage interventions and research from 2020 to 2022.
39
NFHS-5.
40
Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law
Institute 22, 39.
PART IV
Page 19 of 141
young wives against forcible sexual intercourse, often by their husbands who
were significantly o lder.
41
20. Reformers like Ishwar Chandra Vidyasagar had successfully advocated for
widow remarriage which was hitherto believed to be impermissible under Hindu
law. These efforts led to the enactment of the Hindu Widows’ Remarriage Act
1856. However, the demands against child marriages w ere not immediately
realised. Child marriage, an aversion to widow remarriage and the low mortality
rate combined and morphed into a lethal destructive element in the Indian
society.
42
21. To address the devastation caused, in particular to women and girls, social
reformers called for raising the minimum age of consent for women in penal
rape statutes. The idea behind the demand for raising the age of consent was
to avoid the bodily harm inflicted on girls by their often -elderly husbands. A
person below the age of consent could not legally consent to any sexual activity
thereby throwing any sexual conduct within the confines of statutory rape. Such
laws already existed in the presidency towns of Calcutta, Madras and Bombay
as early as 1828.
43
The laws in these presidency towns stipulated the age of
consent for girls to be eight years and the offence of rape against a girl below
the age of consent was punishable with death.
44
In 1847, when the Law
Commission was drafting the Indian Penal Code it decided, for the first time, to
41
Jaya Sagade. Child Marriage in India: Socio- legal and human Rights Dimensions. Oxford University Press,
2
nd
ed. (2012) 37.
42
Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law
Institute 22, 39.
43
The Joshi Committee Report, 9.
44
Ibid.
PART IV
Page 20 of 141
criminalise the consummation of marriage by a husband with his underage wife.
The initial version of the Indian Penal Code 1860
45
stipulated the age of consent
to be ten years and criminalised marital rape by a husband against his wife
under the age of consent.
46
22. Raising the age of consent was seen as undue interference by the colonial
legislature into the personal laws of Indians.
47
The movement gained a
groundswell of support because of efforts by Behramji Malabari, a journalist
from Bombay, who began publishing his ‘notes’ in his newspaper the ‘Indian
Spectator’ in 1884.
48
He highlighted the consequences of ‘infant marriages’ and
‘enforced widowhoods’ by recounting anecdotal accounts of victims. His
polemical style of reporting sought to appeal to the humanity of the readers.
49
Around the same time, two cases came to the fore and exposed the evils which
come out of child marriage.
i. Rukhmabai’s case
23. In 1874, at the age of eleven, Rukhmabai was married off to Dadaji Bhikaji, a
nineteen- year-old boy who was a cousin of her step- father. Owing to his
reformist views, Rukhmabai’s stepfather did not send her to live with Dadaji
Bhikaji immediately upon attaining puberty. Under his guidance, Rukhmabai
45
‘IPC’
46
Ss. 375, 376, IPC 1860 (initial version).
47
Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law
Institute 22, 39.
48
Infant Marriage and Enforced Widowhood in India, Being a Collection of Opinions For and Against,
Recorded by Mr. Behramji M. Malabari from Representative Hindu Gentlemen and Official and Other
Authorities, Bombay (1887); Charles H. Heimsath, Indian Nationalism and Hindu Social Reform, Princeton
University Press (1964), 151.
49
Charles H. Heimsath, Indian Nationalism and Hindu Social Reform, Princeton University Press (1964),
151; Geraldine Forbes, Women and Modernity: The Issue of Child Marriage in India, Women's Studies
International Quarterly, 1979, Vol. 2, 407- 419.
PART IV
Page 21 of 141
grew fond of studying and took plenty of advantage of the rich collection of
books he had accumulated. As Rukhmabai grew into an intelligent and forward-
thinking woman, Dadaji Bhikaji slipped into indolence. This led Rukhmabai to
refuse to live with Dadaji.
50
In 1884, Dadaji instituted a suit for restitution of
conjugal rights. At the time, a decree for restitution of conjugal rights was
enforceable and its violation was punishable with imprisonment. Rukhmabai
opposed the petition on the grounds of social, economic and personal
incompatibility with Dadaji.
51
She also asserted that she had not ‘arrived at
years of discretion’ at the time of her marriage and therefore she could not be
bound by it.
52
Justice Pinhey of the Bombay High Court dismissed the petition
and held that Rukhmabai was married before she could consent to such a
marriage and cannot therefore be compelled to live with her husband eleven
years later without having cohabited in all this time. He observed that:
“It is a misnomer to call this a suit for the restitution
of conjugal rights. When a married couple, after
cohabitation separate and live apart, either of them
can bring a suit against the other for the restitution
of conjugal rights according to the practice in
England, and according to the later practice of the
Courts in India. But the present suit is not of that
character. The parties to the present suit went
through the religious ceremony of marriage eleven
years ago when the defendant was a child of eleven
years of age. They have never cohabited. And now
that the defendant is a woman of twenty-two, the
plaintiff asks the Court to compel her to go to his
house, that he may complete his contract with her by
consummating the marriage, The defendant, being
now of full age, objects to going to live with the
50
Sudhir Chandra. Enslaved Daughters: Colonialism, Law and Women's Rights. Oxford University Press, 2
nd
ed (2008), Ch. 1.
51
Jaya Sagade. Child Marriage in India: Socio- legal and human Rights Dimensions. Oxford University Press,
2
nd
ed. (2012) 39.
52
Sudhir Chandra. Enslaved Daughters: Colonialism, Law and Women's Rights. Oxford University Press, 2
nd
ed (2008), Ch. 1.
PART IV
Page 22 of 141
plaintiff, objects to allowing him to consummate the
marriage, objects to ratifying and completing the
contract entered into on her behalf by her guardians
while she was yet of tender age. It seems to me that
it would be a barbarous, a cruel, a revolting thing
to do to compel a young lady under those
circumstances to go to a man whom she
dislikes, in order that he may cohabit with her
against her will; and I am of opinion that neither the
law nor the practice of our Courts either justified my
malting such an order, or even justifies the plaintiff in
maintaining the present suit.”
(emphasis supplied)
24. The decision of Justice Pinhey was much ahead of its time. At a time when child
marriage was the norm and the legal standard of consent was inapplicable to
marital laws, Justice Pinhey’s judgment was a bold declaration of the rights of
Indian women to make their own life choices. Unfortunately, the success was
short-lived. The judgement had caused an uproar in the public and Dadaji filed
an appeal before the Division Bench of the Bombay High Court. The D ivision
Bench set aside the judgment of Justice Pinhey and directed Rukhmabai to join
Dadaji within a month at the pain of penalty to undergo six months’
imprisonment. The court reasoned that incompatibility was no defence under
Hindu law against a petition for restitution of conjugal rights. Firm as she was,
Rukhmabai refused to join Dadaji and declared that she would subject herself
to the maximum penalty admissible under the law, rather than to live with her
husband. The sight of a Hindu woman being imprisoned shocked the public
conscience. Dadaji entered a compromise and did not press for the execution
of the decree for restitution of conjugal rights against an amount of Rs 2000/-.
Rukhmabai went on to study medicine in the UK and became one of India’s
earliest women doctors.
PART IV
Page 23 of 141
25. Rukhmabai’s defiance was uncharacteristic for her time and threatened, not
only child marriage but also the indomitable idea of a woman’s inferiority. Her
assertion of womanhood and agency in refusing to go with a wayward husband
whom she was given to in marriage opened up new ways for women to imagine
their autonomy. Writing to the editor of the Times of India on 26 June 1885,
under the pseudo name ‘A Hindu Lady’, Rukhmabai eloquently drew the
differential plains on which the experiences of boys and girls in a child marriage
are placed. She wrote :
“The general apathy towards social improvements
which characterizes our people has been telling
upon the whole community, but tells most heavily
upon the female sex. Hindu social customs do not
entail on men half the difficulties which they entail
upon women. Excepting the two principal difficulties
resulting from infant marriage, they enjoy full mental
and physical freedom. Religion or social custom
does not, in any way, interfere with their liberty.
Marriage does not interpose any insuperable
obstacle in the course of their studies. They can
marry not only a second wife, on the death of the
first, but have the right of marrying any number of
wives at one and the same time, or any time they
please. If married early, they are not called upon to
go to the house and to submit to the tender mercies
of a mother-in-law; nor is any restraint put upon their
actions because of their marriage. But the case with
women is the very reverse of this. If the girl is married
at the age of eight (as most of them are), her parents
are at liberty to send her to school till she is ten years
old; but, if they wish to continue her at school longer,
they must obtain the express permission of the girl’s
mother-in-law. But even in these advanced times,
and even in Bombay —the chief centre of
civilization—how many mothers -in-law are there
who send their daughters to school after they are ten
years old!”
53
53
Extracted from a letter written by Rukhmabai to the Times of India on 26 June 1885.
PART IV
Page 24 of 141
26. While Rukhmabai’s case ultimately witnessed an out of court settlement and
her freedom, another case around the same time jolted the conscience of the
Indian society.
ii. Phulmoni Dasi’s case
27. In 1889, Phulmoni Dasi was married off at the age of eleven years to a thirty-
five-year-old man. At age eleven years and three months, she was subjected
to marital rape by her husband, Hari Maiti. She succumbed to haemorrhage
from a rupture of the vagina caused by her husband.
54
The Court ruled that the
law of rape was inapplicable because Phulmani had reached her tenth birthday
and was married to Hari. The coverage of the case as well as the trial cast a
male medical gaze over the body of the deceased victim. Even after her death,
she was subjected to scrutiny to determine her true age and growth. Questions
of her immaturity and puberty were not sought as an ornate way to bring her
husband to justice but were rather asked to defend him.
28. The gruesome case of Phulmani galvanised support for Malabari’s campaign
to raise the age of consent. Phulmani’s case silenced the opposition among
those who had opposed any legislative intervention as a colonial interference
in the private sphere and practices.
55
The death of Phulmani also cut through
the lethargy of a colonial bureaucracy which was reluctant to intervene in
54
Jaya Sagade. Child Marriage in India: Socio- legal and human Rights Dimensions. Oxford University Press,
2
nd
ed. (2012) 37.
55
Ratna Kapur & Brenda Cossman (1996). Subversive Sites: Feminist Engagements with Law in India. Sage
Publications 49- 50; Charles H. Heimsath (1964). Indian Nationalism and Hindu Social Reform. Princeton
University Press 163-165.
PART IV
Page 25 of 141
matters of religion.
56
The law member of the Viceroy’s Legislative Council,
Andrew Scoble, prominently used Phulmani’s case to advocate for raising the
age of consent by enacting his Bill, namely, the Age of Consent Bill. The Bill
was an amendment to the IPC and raised the age of consent from ten years to
twelve years. The Age of Consent Act was passed in 1891. The marital rape
exception had come to the defence of Hari. Raising the age of consent by two
years meant that any sexual intercourse with a girl under the age of twelve
would be statutory rape regardless of the marital status of the aggressor with
the victim.
B. Regulating the age of marriage
29. In 1921, the League of Nations held a conference on the trafficking of women
and recommended raising the age of consent to twenty-one years for girls. In
1922, Bakshi Sohanlal unsuccessfully tried to raise the age of consent to 14 by
introducing a Bill. Bills that sought to raise the age of consent were introduced
and thrown out regularly for five years thereafter. Among these bills was an Age
of Marriage Bill which was sought to be introduced by Ranglal Jajodia in 1924
in the Legislative Assembly.
57
The Bill prescribed a minimum age before which
no marriage could take place. This was a shift from the approach taken by other
reformers and legislators of not interfering with the age of marriage but to
merely protect girls from forced sex by raising the age of consent in penal laws.
While this Bill was never introduced, a similar Bill was introduced by Haribilas
56
Ishita Pande (2020). Sex, Law, and the Politics of Age Child Marriage in India, 1891– 1937. Cambridge
University Press 32.
57
Joshi Committee Report, 15; Also see Tahir Mahmood (1980). Marriage Age in India and Abroad – A
Comparative Aspect. Journal of Indian Law Institute 22, 41.
PART IV
Page 26 of 141
Sarda in 1927 after another failed attempt to raise the age of consent by Hari
Singh Gour. The ‘Sarda Bill’ was circulated widely to attract opinions. The
Select Committee altered various provisions, and the Government eventually
appointed the Age of Consent Committee under the chairmanship of MV Joshi.
The consideration of the Sarda Bill was postponed till the report of the Joshi
Committee was received.
58
30. The terms of reference of the Joshi Committee did not include the examination
of the age of marriage. However, the committee found it impossible to delink
the question of marriage age with the question of age of consent for
cohabitation.
59
The committee heard over twelve hundred oral witnesses out of
which one hundred and thirty four witnesses strongly opposed any law
regulating the age of marriage. The committee submitted its report dated 20
June 1929. It recommended that the age of consent be raised to fifteen years
under penal statutes as well as the enactment of a law which penalizes
marriage below the age of fourteen years.
60
The committee was of the opinion
that it would be easier to regulate the age of marriage by law than to regulate
the consummation of marriage after it had already taken place. The committee
reasoned that marriage was an act of public knowledge and many persons had
a chance to notice the age of the couple. Its visibility would allow for its
regulation. It was also thought that regulating marriages would avoid the
58
Joshi Committee Report, 8.
59
Ibid, 8.
60
Ibid, 196.
PART IV
Page 27 of 141
irritation that would follow from the strict regulatory interference of
consummation within a marital union.
61
31. After much debate, the Sarda Bill was enacted as the Child Marriage Restraint
Act 1929 and received the assent of the Governor-General on 1 October 1929
and was to come into force on 1 April 1930 throughout British India. The Act
applied to all religions. The Act continued to govern the law on the age of
marriage till Parliament enacted the Prohibition of Child Marriage Act 2006.
C. The Child Marriage Restraint Act 1929
32. The law in colonial times had cast a male gaze upon the women and girls of
India. It did so by making women the object of the legislation but never its
spectator. Women and their bodies were made a subject of legislation without
any meaningful attempt to attract the perspectives of women, their experiences
or their desires. The law did not concern itself with issues of autonomy, agency
and individualised dignity of a woman. This had been manifested from the days
of the reform movement on the age of consent laws. As Dr Jaya Sagade argues
in her book Child Marriage in India: Socio- legal and Human Rights Dimensions,
the law on consent was nailed purely to the physical capability of women and
alien from thei r aspirations or choices. She states that:
“It is unfortunate that all opinions agreed on a
definition of consent that was nailed to a purely
physical capability, entirely dissociated from free
issues like choice of partner, sexual, emotional, or
mental compatibility or other social considerations
such as the girl’s personal development. Consent
was made into a biological category, a stage when
61
Ibid, 174, para 379.
PART IV
Page 28 of 141
the female body was ready to accept sexual
penetration without serious harm. The only
difference lay in when this stage was reached.”
62
33. The Child Marriage Restraint Act 1929
63
was a first to cover all children – male
and female – within its gamut. The age of consent laws was enacted through a
clause in the penal rape statutes which only sought to legislate on girls. The
CMRA on the other hand was applicable to both boys and girls.
34. Section 2(a) of the CMRA stipulated that a “child” means a person who, if male,
is below the age of eighteen, and if female, is below the age of fourteen. Section
2(d) defined a “minor” to be any person below the age of eighteen. All marriages
in which either of the parties was a ‘child’ under Section 2(a) was stipulated to
be a “child marriage” under Section 2(b). The CMRA stipulated that child
marriage is an offence punishable with simple imprisonment which may extend
to one month or a fine of one thousand rupees or both. Grooms between the
ages of eighteen and twenty-one were to be punished only with a fine and no
imprisonment could be awarded to them. The CMRA originally did not allow for
the punishment of a ‘child’ for the offence of child marriage. The Act only
penalised child marriages which had already taken place. However, it did not
stipulate any provision for the prevention of child marriage.
35. In 1938, the CMRA was amended to stipulate that a court may issue an
injunction prohibiting a child marriage from taking place. However, before
62
Jaya Sagade. Child Marriage in India: Socio- legal and human Rights Dimensions. Oxford University Press,
2
nd
ed. (2012) 41.
63
‘CMRA’
PART IV
Page 29 of 141
issuing such an injunction, the court was required to give prior notice to the
person sought to be injuncted as well as an opportunity to show cause against
the issuance of the injunction.
64
The CMRA further underwent substantive
amendments in 1949.
36. The amendment increased the age for a girl child to fifteen years and increased
penalties for all categories of offenders. A chart of all the penalties under the
CMRA and its amendments is produced below:
Offender Penalty under the
Original CMRA 1949 Amendment
Groom between the ages of
18-21
Fine of upto Rs 1,000/- Simple imprisonment upto
15 days or/and a fine upto Rs
1,000/-
Groom above the age of 21 Simple imprisonment upto 1
month or/and fine upto Rs
1,000/-
Simple imprisonment upto 3
months and fine
One who knowingly
performs, conducts or directs
child marriage
Simple imprisonment upto 1
month or/and fine upto Rs
1,000/-
Simple imprisonment upto 3
months and fine
One who, being in charge of
a minor – promotes, permits
or failed to prevent the child marriage
Simple imprisonment upto 1
month or/and fine upto Rs
1,000/-
Simple imprisonment upto 3
months and fine
One who knowingly violates
an injunction against a child marriage
Imprisonment of either
description upto three
months or/and fine upto Rs
1,000/-
Imprisonment of either
description upto three
months or/and fine upto Rs
1,000/-
37. None of these offences were cognizable in nature. The offences under the
CMRA were only made party cognizable through an amendment in 1978.
Accordingly, the offences under the CMRA were to be treated as cognizable for
(i) the purpose of investigation, and (ii) for the purpose of matters other than (a)
64
Section 12, CMRA.
PART IV
Page 30 of 141
Section 42 of CrPC and (b) the arrest of a person without a warrant or without
an order of the Magistrate. By the same amendment, Parliament also raised the
age of marriage to eighteen years for girls and twenty-one years for boys. This
time too, legislative intervention was largely animated by a concern for
population control rather than the autonomy or agency of children. The
Statement of O bjects and R easons expressly stated the intent behind the
amendment. It states as follows:
“Prefatory Note-Statement of Objects and
Reasons. The Child Marriage Restraint Act, 1929,
was enacted with a view to prevent child marriages,
namely, a marriage to which either of the contracting
parties is under a specified age. Originally, the age
limit for a male was eighteen years and for a female
fourteen years. The age limit was subsequently
raised in the case of females from fourteen to fifteen
by the Amending Act 41 of 1949. Violation of the
provisions of the Act is made punishable.
2. The question of increasing the minimum age
of marriage for males and females has been
considered in the present context when there is
an urgent need to check the growth of population
in the country. Such increase of the minimum
age of marriage will result in lowering the total
fertility rate on account of letter span of married
life. It will also result in more responsible
parenthood and in better health of the mother
and child. A Bill introduced for this purpose in the
Lok Sabha on 25th August, 1976, lapsed with the
dissolution of the Lok on 18th January, 1977. The
matter has examined in all its aspects again.
3. The Bill seeks to amend the Child Marriage
Restraint Act, 1929, to increase the minimum age of
marriage from fifteen to sixteen for females and from
eighteen to twenty-one for males and to make
consequential amendments in the Hindu Marriage
Act, 1955, and the Indian Christian Marriage Act,
PART V
Page 31 of 141
1872. It is also being provided that offences under
the Child Marriage Restraint Act may be investigated
upon by a police officer under the Code of Criminal
Procedure as if it were a cognizable offence. The
police officer shall, however, not have the power to
arrest without a warrant or an order of a Magistrate.”
(emphasis supplied)
38. The CMRA did not stipulate that child marriages would be void, voidable or
invalid. It did not affect the validity of child marriages and did not prohibit the
marriage of a girl to an old man. This remained unchanged till Parliament
repealed the CMRA and enacted the Prohibition of Child Marriage Act 2006.
V. Contemporary legal framework
A. The Prohibition of Child Marriage Act 2006
39. The National Commission for Women
65
in its annual report for the year 1995-
1996 proposed to amend the CMRA. It proposed that (i) the government should
appoint Child Marriage Prevention Officers; (ii) punishments under CMRA be
made more stringent; (iii) child marriages be declared void; (iv) a penal
obligation be imposed on anyone attending a child marriage; and (v) all offences
under the CMRA must be made cognizable without any qualification.
66
The
NCW further recommended that systematic efforts to spread awareness about
the evils of child marriage be carried out.
67
40. In 2001- 2002, the National Human Rights Commission
68
released its annual
report which inter alia reviewed the CMRA. The NHRC proposed certain
65
‘NCW’
66
Annual Report 1995- 1996, National Commission for Women, 3.
67
Annual Report 1995- 1996, National Commission for Women, 3.
68
‘NHRC’
PART V
Page 32 of 141
amendments to the CMRA to (i) provide for higher penalties for violation of the
CMRA; (ii) stipulate action against organisers or associations who organise
child marriages at a mass scale; (iii) make child marriages voidable at the
instance of the minor party within two years of the party attaining the age of
majority; (iv) provide for the maintenance of a minor girl by her husband or
guardian till she remarries; and (v) stipulate for the return of all dowry and gifts
exchanged during the child marriage.
69
The report also stressed on the need to
initiate social action by networking with NGOs in the areas where child
marriages were prevalent in order to sensitize community leaders against such
marriages.
70
41. On the basis of the two reports, the Government of India consulted the States
and the Union Territories. Accordingly, the Parliament decided to repeal the
CMRA and enact the PCMA . The Statement of Objects and Reasons of the
PCMA stated the salient features of the Act as follows:
“4. The salient features of the Bill are as follows:–
(i) To make a provision to declare child marriage
as voidable at the option of the contracting
party to the marriage, who was a child.
(ii) To provide a provision requiring the husband
or, if he is a minor at the material time, his
guardian to pay maintenance to the minor girl
until her remarriage.
(iii) To make a provision for the custody and
maintenance of children born of child
marriages
(iv) To provide that notwithstanding a child
marriage has been annulled by a decree of
69
Annual Report 2001- 2002, National Human Rights Commission, 50- 51, 336- 348.
70
Annual Report 2001- 2002, National Human Rights Commission, 51.
PART V
Page 33 of 141
nullity under the proposed section 3, every child
born of such marriage, whether before or after
the commencement of the proposed
legislation, shall be legitimate for all purposes.
(v) To empower the district court to add to, modify
or revoke any order relating to maintenance of
the female petitioner and her residence and
custody or maintenance of children, etc.
(vi) To make a provision for declaring the child
marriage as void in certain circumstances.
(vii) To empower the courts to issue injunctions
prohibiting solemnisation of marriages in
contravention of the provisions of the proposed
legislation.
(viii) To make the offences under the proposed
legislation to be cognizable for the purposes of
investigation and for other purposes.
(ix) To provide for appointment of Child Marriage
Prevention Officers by the State Government.
(x) To empower the State Governments to make
rules for effective administration of the
legislation.
5. The Bill seeks to achieve the above objectives.”
42. The PCMA retained the age of marriage as twenty-one for males and eighteen
for females.
71
The Act provides for governing parties to a child marriage after
its commission, punitive measures against offenders of the Act as well as
provisions for the prevention of child marriage. We shall analyse the scheme of
the PCMA in three parts. In Part i, we shall analyse the provisions that seek to
protect women married as girls as well as children born in child marriages
(Sections 3 to 8 of the PCMA). Having analysed the remedies of parties upon
the commission of a child marriage, we shall analyse the provisions which
71
Section 2(a), PCMA.
PART V
Page 34 of 141
penalise the commission of child marriages in Part ii. Lastly, in Part iii we shall
analyse the provisions which are aimed at preventing child marriages.
i. Recourse to the wedded: maintenance, residence and custody
43. The PCMA prescribes that a petition under the Act may be filed before a district
court having jurisdiction over the place where (i) the defendant resides; or (ii)
the child resides; or (iii) the marriage was solemnized; or (iv) the parties last
resided together; or (v) the petitioner is residing at the time of filing the petition.
Such a court shall have jurisdiction to deal and decree the following reliefs :
(i) to annul the marriage and issue a decree of nullity under Section 3 of the
PCMA;
(ii) to provide for maintenance and residence to the female contracting party
to a child marriage under Section 4; and
(iii) for the custody and maintenance of children of a child marriage under
Section 5.
44. The PCMA diverges from the CMRA in its approach towards the validity of child
marriages as well as its enforcement. The PCMA prescribes that a child
marriage is voidable at the instance of the contracting party who was a child at
the time of the marriage.
72
Section 3 stipulates that a petition for annulling a
child marriage by a decree of nullity may be filed before the district court. Such
a person must exercise the right to file the petition within two years of attaining
72
Section 3, PCMA.
PART V
Page 35 of 141
the age of majority.
73
In case the party is still a minor, the petition may be filed
by their guardians or next friend along with the CMPO.
74
In addition to entitling
the minor contracting party to a child marriage to a decree of nullity, it also
requires the district court to direct both parties to the marriage to return all
money, valuables, ornaments and other articles exchanged as gifts at the time
of marriage.
75
In doing so, the district court must afford an opportunity to the
parties against whom the order of returning gifts is made.
76
45. The PCMA further empowers the district court to provide for the maintenance
and residence of the female contracting party to the child marriage. The court
may pass an interim or final order directing the grant of maintenance to the
female contracting party by the male contracting party.
77
Where the male
contracting party is a minor, the court may issue a direction to his parents or
guardians to maintain the female contracting party.
78
The court may grant such
a relief till the female contracting party remarries.
79
In computing the amount of
maintenance, the court shall have regard to the needs of the child, the lifestyle
enjoyed by the child during marriage and the means of income of the paying
party.
80
Clause (4) of Section 4 empowers the district court to make a suitable
order for the residence of the female contracting party to a child marriage who
files an annulment petition.
73
Section 3(3), PCMA.
74
Section 3(2), PCMA.
75
Section 3(4), PCMA.
76
Section 3(4), PCMA.
77
Section 4(1), PCMA.
78
Section 4(1), PCMA.
79
Section 4(1), PCMA.
80
Section 4(2), PCMA.
PART V
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46. Section 5 of the PCMA provides for the custody and maintenance of children of
child marriages. The PCMA is oriented on the universal principal of child law,
which is that the welfare and beneficial interest of the child has to be paramount.
The provision governs the custody of the child, the visitation rights of parents
as well as the maintenance of a child born from a child marriage. The district
court is empowered to make an order as to the custody of a child born from a
child marriage
81
keeping in mind the welfare and best interest of the child.
82
The
court may also pass an order granting the other party access to the child in a
manner that serves its best interest.
83
The child or its parents or guardians may
also be awarded maintenance by the court.
84
Therefore, the PCMA has sought
to ensure the upkeep and protection of women and children in families which
emerge from a child marriage.
47. One of the critiques against rendering child marriages void is that women and
children would lose the protective shield of the law, which accrues to them
under a valid marriage. The PCMA has repelled this criticism by specifically
providing for the maintenance of women and children in a child marriage
notwithstanding a decree of nullity being granted under Section 3 of the Act.
The Act further protects a child born from a child marriage by declaring that
such a child, begotten or conceived of a child marriage, shall be deemed
legitimate for all purposes under the law.
85
81
Section 5(1), PCMA.
82
Section 5(2), PCMA.
83
Section 5(3), PCMA.
84
Section 5(4), PCMA.
85
Section 6, PCMA.
PART V
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48. The maintenance of women and children has been a feature of our family laws.
It recognises the inherent maldistribution of economic resources and life
opportunities between men and women. It further recognises the innocence of
the children who end up in broken families due to no fault of theirs. The status
of these universally recognised vulnerable persons is further made tragic in a
child marriage because all child marriages are forced marriages. Children are
made to enter into matrimony before arriving at the age of intelligent consent
and are often unaware of the responsibilities, duties and rights which accrue to
members of the marital union in the eyes of the law as well as society. When
the party to a child marriage ends up in a situation which is not of their making,
the vulnerability of the child born from such marriage is heightened.
49. In Union of India v. VR Tripathi
86
, a two-Judge Bench of this Court speaking
through one of us (DY Chandrachud, J) has opined that the legitimacy of a child
is a matter of the dignity of the child. When the law recognises a child as
legitimate, it aims to shield the child from the legal fallout of illegitimacy as well
as the social stigma attached to illegitimate children. It is impermissible to treat
children of void marriages, who are statutorily legitimate, as illegitimate. Section
6 of the PCMA therefore serves to afford dignity to children born to parents who
had entered into a child marriage. A decree of nullity of marriage passed under
Section 3 shall not affect the legitimacy of the child born from such a marriage.
50. Section 7 of the PCMA allows the district court to add to, modify or revoke any
order which it passes on the maintenance, residency of the woman or the
86
(2019) 14 SCC 646.
PART V
Page 38 of 141
custody and maintenance of the child born from a child marriage based on
change in circumstances. Such a change in the order of the court may be made
at any time, either during the pendency of the petition or after it has been
disposed of.
51. These provisions seek to safeguard the interest of the vulnerable stakeholders
involved in a child marriage, namely, a child bride and any child born from a
child marriage. Parliament, having safeguarded these rights has further
stipulated punishments for violation of the PCMA and solemnization of child
marriages.
ii. Penalties for child marriage
52. The PCMA prescribes punishment for three classes of persons, namely, (i) an
adult groom in a child marriage,
87
(ii) persons involved in the solemnization of
child marriage
88
and (iii) persons who promote or permit the solemnization of
child marriage.
89
The maximum punishment prescribed for all three classes is
rigorous imprisonment of two years and a fine of rupees one lakh. Unlike many
social legislations, the PCMA does not prescribe a mandatory minimum
punishment for committing an offence under the Act. The effect of this is that a
judge would be at liberty to nominally punish the accused who are convicted
under the Act. The non- prescription of a minimum mandatory sentence has led
to ineffective enforcement of the PCMA.
87
Section 9, PCMA.
88
Section 10, PCMA.
89
Section 11, PCMA.
PART V
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53. Section 15 of the PCMA stipulates that all offences under the Act are cognizable
and non- bailable. This is a deviation from CMRA which initially did not make the
offence of child marriage cognizable. The effect of this was to make the
prevention of child marriage entirely contingent on the private initiative of
citizens to file a complaint before the magistrate and be examined under oath.
The CMRA also initially required a security bond to be executed by the
complainant to sustain their bona fides. This requirement made the
enforcement of the Act illusory. The requirement of executing a mandatory
security bond was eliminated by the Child Marriage Restraint (Second
Amendment) Act 1938. The offences under the CMRA were further made
partially cognizable through an amendment in 1978. Section 15 of PCMA is
therefore a welcome step which aims to better enforce the Act.
54. Section 9 of the PCMA prescribes that a man above the age of eighteen, who
enters into a marriage with a minor girl is liable to be punished with rigorous
imprisonment which may extend to two years or with a fine which may extend
to one lakh rupees or both. The court is accordingly empowered to penalise an
accused under Section 9 with imprisonment or a fine or both. The court is at
liberty to exercise its options of imposing punishment based on the gravity of
the offence, the circumstance of the marriage and the socio- economic power of
the male over his child bride. In many instances, the marriage between a child
bride and aged groom occurs at the instance of the groom incentivising the
family of the girl to marry her off. The provision deals with such situations but
also recognises the relative lack of involvement of a man who may be a young
adult and enters into matrimony with a minor. The option of imprisonment and
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fine is a deviation from the other two penal provisions in the PCMA which
mandate both, a fine and imprisonment, to be imposed on guilty convicts. The
rationale of this option is to allow the judge a degree of latitude in assessing the
culpability of the groom under Section 9 and impose a proportionate criminal
sentence.
55. Despite the age of majority for a man to enter into a marriage being prescribed
as twenty-one under Section 2(a) of the Act, his criminal liability for entering into
a child marriage with a minor woman begins at eighteen. Therefore, two
positions of law emerge from Section 9. First, a woman, regardless of her age
is not liable for entering into a child marriage. Second, a man above the age of
eighteen but under the age of twenty one is liable for marrying a girl who is
under the age of eighteen. The legislative intent behind making a groom liable
for entering child marriage is to recognise the relative control of the agency that
a groom may have in relation to his marriage as opposed to a girl.
56. In Hardev Singh v. Harpreet Kaur
90
the appellant was under the age of twenty-
one and had married a woman who was twenty-three years old. The High Court
of Punjab and Haryana directed an FIR to be registered under Section 9 of the
PCMA against the wife for entering into a marriage with a man who was a minor
under the PCMA. A two- Judge bench of this Court set aside the judgment of
the High Court and held that the PCMA does not prescribe any punishment for
an adult woman who marries a male child. This Court held that the A ct
recognises women as a vulnerable class and seeks to punish adult men who
90
(2020) 19 SCC 504.
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marry child brides. The Court further rejected the literal interpretation of Section
9 which would make a man between the ages of eighteen and twenty one who
marries an adult woman liable for child marriage. Therefore, no child as defined
in Section 2(a) of the PCMA is liable under Section 9 for marrying an adult
person.
57. Section 10 of PCMA stipulates that a person who performs, conducts, directs
or abets any child marriage shall be punished with rigorous imprisonment which
may extend to two years and shall be liable to a fine which may extend to one
lakh rupees. The provision, unlike Section 9, does not allow the court to choose
the option of imposing a fine or sentencing a term of imprisonment or both. A
court adjudicating under Section 10 is mandated to impose a sentence of
imprisonment as well as impose a fine.
58. The provision is expansive and would govern any accomplice to the
commission of child marriage. This would include the priest who performs the
marriage, any family member, relative or person at whose direction the
marriage takes place or anyone who abets it. The provision stipulates a defence
available to any accused under Section 10 which is that a person must
demonstrate that he had reasonable belief that the marriage was not a child
marriage. The inbuilt defence stipulated in the provision is to safeguard any
person who may unwittingly become a part of the commission of the offence of
child marriage.
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59. Section 11 of the PCMA is a catchall provision against the promotion or
permitting of child marriage by those in charge of a minor party to the marriage.
The provision reads as follows:
“11. Punishment for promoting or permitting
solemnisation of child marriages.—
(1) Where a child contracts a child marriage, any
person having charge of the child, whether as parent
or guardian or any other person or in any other
capacity, lawful or unlawful, including any member of
an organisation or association of persons who does
any act to promote the marriage or permits it to be
solemnised, or negligently fails to prevent it from
being solemnised, including attending or
participating in a child marriage, shall be punishable
with rigorous imprisonment which may extend to two
years and shall also be liable to fine which may
extend up to one lakh rupees: Provided that no
woman shall be punishable with imprisonment.
(2) For the purposes of this section, it shall be
presumed, unless and until the contrary is proved,
that where a minor child has contracted a marriage,
the person having charge of such minor child has
negligently failed to prevent the marriage from being
solemnised.”
60. Section 11 stipulates that any person having charge of the child – who promotes
or permits a child marriage or fails to prevent it – is liable to rigorous
imprisonment which may extend to two years and a fine which may extend to
one lakh rupees. Similar to the provision under Section 10 of the PCMA, Section
11 also prescribes a mandate to the sentencing court to impose a sentence of
imprisonment as well as a fine. The provision uses the word ‘and’ between the
two punishments and the judge does not have the liberty to pick a certain
punishment to the exclusion of the other. The person liable under Section 11
may be the parents of the child or a guardian or any other person or
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organisation. Further, the means by which a person may have the charge of the
child is immaterial as the provision stipulates that the charge may be ‘lawful or
unlawful’. The section seeks to penalise any person or organisation involved in
a child marriage. Its expansive scope allows for the prosecution of any person
who may have unlawfully taken the custody of a child and thereafter promoted,
permitted or failed to prevent the child marriage. Section 11 also deals with
organisations, such as orphanages or schools or hostels, which may have the
charge of a child and under whose watch the child is married off.
61. The intention of the provision is to place an obligation on any person who has
the charge of a child to ensure that the offence of child marriage is not
committed. The provision not only penalises the active participation of the
person having charge of a child but also penalises the omission on the part of
such a person to prevent child marriage. The provision recognises that children
lack the ability to form intelligent consent and may not necessarily know the full
ambit of the activity which they are about to commit. Further, children may lack
the ability and grit to defend themselves and refuse to participate in the
marriage against the pleasure of their custodians or parents.
62. Clause (2) of Section 11 raises a presumption. It stipulates that any person,
who is in charge of a child who was married off, is presumed to have negligently
failed to prevent the child marriage. The presumption is a rebuttable one and
may be defended if the person proves that he could not have prevented the
marriage or failed at preventing it, having tried to do so to the best of their ability.
This principle is only applicable to an offence under Section 11.
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63. Having stipulated penal provisions for the commission of child marriage in
Sections 9, 10 and 11, the PCMA further stipulates that any child marriage
which occurs as a result of another criminal act is void ab initio .
91
Section 12
stipulates three instances in which the marriage of a child is null and void. These
instances are where a minor child –
(i) is taken or enticed out of the keeping of the lawful guardian;
92
or
(ii) compelled by force or by any deceitful means induced to go from any
place;
93
or
(iii) is sold for the purpose of marriage; and made to go through a form of
marriage or if the minor is married after which the minor is sold or trafficked
or used for immoral purposes.
94
64. Section 12 provides that the marriage in these instances is non est in law and
has no legal standing from its inception. The declaration of the provision is
mandatory and removes the option from the hands of the party to consent to
the marriage after its commission. Therefore, all marriages done by taking or
enticing a child, compelling by force or deceit or selling are void. Section 12(c)
further stipulates that where a child marriage occurs and after the marriage, the
minor is sold or trafficked or used for immoral purposes is void. Therefore, even
when the commission of marriage was not through force or deceit the marriage
91
Section 12, PCMA.
92
Section 12(a), PCMA.
93
Section 12(b), PCMA.
94
Section 12(c), PCMA.
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would be void from the inception based on the acts performed after the marriage
takes place.
iii. Preventive measures under the PCMA
65. The PCMA seeks to eliminate child marriages by deterrence and prevention.
The Act designed the preventive measures in two ways, i.e., (i) by an injunction
against the commission of child marriage, and (ii) by the appointment of
CMPOs. We shall analyse the scheme of the PCMA in regard to both of these
aspects below.
Injunctions against child marriage
66. Sections 13 and 14 of the PCMA deal with injunctions against child marriage.
Section 13 reads as follows:
“13. Power of court to issue injunction
prohibiting child marriages.—
(1) Notwithstanding anything to the contrary
contained in this Act, if, on an application of the Child
Marriage Prohibition Officer or on receipt of
information through a complaint or otherwise from
any person, a Judicial Magistrate of the first class or
a Metropolitan Magistrate is satisfied that a child
marriage in contravention of this Act has been
arranged or is about to be solemnised, such
Magistrate shall issue an injunction against any
person including a member of an organisation or an
association of persons prohibiting such marriage.
(2) A complaint under sub-section (1) may be made
by any person having personal knowledge or reason
to believe, and a non- governmental organisation
having reasonable information, relating to the
likelihood of taking place of solemnisation of a child
marriage or child marriages.
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(3) The Court of the Judicial Magistrate of the first
class or the Metropolitan Magistrate may also take
suo motu cognizance on the basis of any reliable
report or information.
(4) For the purposes of preventing solemnisation of
mass child marriages on certain days such as
Akshaya Trutiya, the District Magistrate shall be
deemed to be the Child Marriage Prohibition Officer
with all powers as are conferred on a Child Marriage
Prohibition Officer by or under this Act.
(5) The District Magistrate shall also have additional
powers to stop or prevent solemnisation of child
marriages and for this purpose, he may take all
appropriate measures and use the minimum force
required.
(6) No injunction under sub- section (1) shall be
issued against any person or member of any
organisation or association of persons unless the
Court has previously given notice to such person,
members of the organisation or association of
persons, as the case may be, and has offered him or
them an opportunity to show cause against the issue
of the injunction:
Provided that in the case of any urgency, the Court
shall have the power to issue an interim injunction
without giving any notice under this section.
(7) An injunction issued under sub- section (1) may
be confirmed or vacated after giving notice and
hearing the party against whom the injunction was
issued.
(8) The Court may either on its own motion or on the
application of any person aggrieved, rescind or alter
an injunction issued under sub- section (1).
(9) Where an application is received under sub-
section (1), the Court shall afford the applicant an
early opportunity of appearing before it either in
person or by an advocate and if the Court, after
hearing the applicant rejects the application wholly
or in part, it shall record in writing its reasons for so
doing.
(10) Whoever knowing that an injunction has been
issued under sub- section (1) against him disobeys
such injunction shall be punishable with
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imprisonment of either description for a term which
may extend to two years or with fine which may
extend to one lakh rupees or with both:
Provided that no woman shall be punishable with
imprisonment.”
67. A Judicial Magistrate of the first class or a Metropolitan Magistrate, as the case
may be, is empowered to issue an injunction order if they are satisfied that a
child marriage has been arranged or is about to be solemnised.
95
The judge
may issue such an order based on information that may be received as a
complaint or otherwise. The person who complains to the judge must have
personal knowledge or reason to believe that a child marriage is likely to
occur.
96
In case the complainant is a non- governmental organisation, they must
have reasonable information, relating to the likelihood of the taking place of or
solemnisation of a child marriage or child marriages. The injunction order may
be issued against any person or association of persons .
97
However, the court
must issue notice to such person, members of the organisation or association
of persons, as the case may be, and offer them an opportunity to show cause
against the issuance of an injunction.
98
The court may eschew from this
requirement only if it is expedient or urgent for the court to act, in which case
an interim injunction may be issued.
68. A Judicial Magistrate of the first class or a Metropolitan Magistrate, as the case
may be, is also empowered to take suo moto cognizance of the commission of
a child marriage based on a reliable report or information.
99
The PCMA also
95
Section 13(1), PCMA.
96
Section 13(2), PCMA.
97
Section 13(1), PCMA.
98
Section 13(6), PCMA.
99
Section 13(3), PCMA.
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gives the judge associated powers in addition to the power to issue an
injunction. These include the power to (i) confirm or vacate the injunction;
100
(ii)
rescind or alter an injunction;
101
and (iii) reject the application for injunction
wholly or in part by a speaking order.
102
The punishment for disobeying an
injunction issued under Section 13 of the PCMA is imprisonment which may
extend to two years or a fine which may extend to one lakh rupees or both.
103
However, no woman can be sentenced to imprisonment for violating an
injunction order under Section 13. Any marriage solemnized in violation of an
injunction order passed under the PCMA is void ab initio as per Section 14 of
the PCMA.
69. In addition to the power of the Judicial Magistrate of the first class or a
Metropolitan Magistrate to issue injunctions, Section 13 also stipulates the role
of the District Magistrate in the prevention of child marriages. Clause (4) of
Section 13 stipulates that a District Magistrate is deemed to be a CPMO on
certain days to prevent the solemnization of child marriages. The District
Magistrate may exercise all the powers which accrue to the CMPO under the
PCMA.
104
The intent of empowering the District Magistrate is in recognition of
the fact that child marriages may take place in higher numbers on certain days.
Since many communities in India believe that marriages may be beneficial if
conducted on auspicious days, the authorities may preventively earmark these
days for the application of Clauses (4) and (5) of Section 13 of the PCMA.
100
Section 13(7), PCMA.
101
Section 13(8), PCMA.
102
Section 13(9), PCMA.
103
Section 13(10), PCMA.
104
Section 13(4), PCMA.
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Clause (5) of the PCMA stipulates that the District Magistrate shall have
additional powers to stop or prevent the solemnisation of child marriages, for
which he may take appropriate measures and use the minimum force required.
Child Marriage Prohibition Officers
70. In addition to injunctions, the PCMA also prescribes the appointment of C MPOs
for the prevention of child marriage. One of the primary critiques of the CMRA
was that the law was depende nt on the private initiative of public-spirited
citizens to avoid child marriages. The offences under the CMRA were only
partially cognizable and its enforcement was met with severe social penalty and
the wrath of the two families whose wards were made to tie the knot. The PCMA
sought to better enforce its provisions by stipulating the appointment of a
CMPO. Section 2(d) of PCMA defines a CMPO as an officer appointed by the
State Government under Section 16(1) of PCMA. Section 16 empowers the
State Government to issue a notification in the official gazette appointing a
CMPO for the specified jurisdiction. Under Clause (2) of Section 16 of PCMA,
the State may also request a respectable member of the locality with a record
in social service or an officer of the Gram Panchayat or Municipality or an officer
of the Government or any public sector undertaking or a non- governmental
organisation to render assistance to the CMPO. The CMPO is mandated to
carry out the duties stipulated in Clause (3) of Section 16 of PCMA. These
duties are as follows:
(i) to prevent solemnisation of child marriages by taking such action as he
may deem fit;
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(ii) to collect evidence for the effective prosecution of persons contravening
the provisions of the Act;
(iii) to advise either individual cases or counsel the residents of the locality
generally not to indulge in promoting, helping, aiding or allowing the
solemnisation of child marriages;
(iv) to create awareness of the evil which results from child marriages;
(v) to sensitise the community on the issue of child marriages;
(vi) to furnish such periodical returns and statistics as the State Government
may direct; and
(vii) to discharge such other functions and duties as may be assigned to
him by the State Government.
71. The CMPO may move the court for an order of (i) maintenance and residence
of the child bride under Section 4; (ii) custody of a child born from a child
marriage under Section 5; and (iii) injunction against the solemnization of
marriage or against the violation of an injunction under Section 13.
105
Additionally, the CMPO may move the court along with a child who has been
married off for a decree of nullity under Section 3 of PCMA.
106
72. The legislative intent behind the appointment of the CMPOs is to designate an
officer to take tailored action against child marriage in each district. The
105
Section 16(5), PCMA.
106
Section 16(5), PCMA.
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prevention of child marriage ensures that communities can progress whereas
the prosecutorial functions of the CMPO ensure effective deterrence.
73. The Petitioner has submitted that the practice widely prevalent is to appoint an
officer with multifarious duties as the CMPO. The task of the CMPO is doled out
as an additional task to officers who are already burdened with their primary
duties. This leads to ineffectiveness and allows many child marriages to slip
through the cracks.
74. The data provided by the Union in its additional affidavit sheds light on the
prevalence of officers holding additional charges as CMPOs at the district level.
In states like Haryana and Chhattisgarh, officials such as Sub- Divisional
Magistrates
107
and District Social Welfare Officers are appointed as CMPOs but
may also hold other responsibilities.
75. As argued by the Petitioner, the appointment of CMPOs who are inundated with
other multifarious duties impedes the effectiveness of child marriage prevention
measures. Officers with multiple duties might struggle to dedicate sufficient time
and resources to their role as CMPOs, potentially hindering the effectiveness
of child marriage prevention efforts. The appointment of CMPOs is not a mere
statutory formality as part of an ornate virtue signalling. These officers are in
charge of prosecution of child marriages, counselling of stakeholders and
spreading awareness and sensitization in the community. An effective CMPO
must make efforts to find their roots in the community, engage with communities
and organisations in the area and carry out the painstaking, and sometimes
107
‘SDM’
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thankless, task of reporting specific factors affecting child marriages in the
district. We observe that the need for dedicated personnel with a focused
mandate to tackle child marriage is crucial to ensure that resources are utilized
effectively and that the objectives of the PCMA are met.
76. Additionally, the level at which CMPOs are designated—whether at the district,
Block, or Gram Panchayat level—is also a critical concern. For instance, states
like Karnataka have appointed 58,522 officers across thirty one districts, and
Maharashtra has appointed 25,562 officers across thirty six districts, extending
appointments down to the Gram Panchayat level. Andhra Pradesh has
appointed 16,590 officers from the village or ward level up to the district level,
including District Magistrates at the district level. However, Uttar Pradesh has
designated only one CMPO per district, with 75 CMPOs for seventy -five
districts. Although high numbers of appointments may suggest extensive
coverage, this alone does not ensure effectiveness unless there are exclusive
officers dedicated solely to CMPO duties, free from additional responsibilities.
For example, at the Gram Panchayat level, Panchayat Secretaries, Village
Revenue Officers, and Patwaris are often given CMPO duties in addition to their
primary roles, which dilutes their ability to focus solely on child marriage
prevention.
77. CMPOs often lack adequate training and are ill-equipped to engage sensitively
with children. A study analysing child marriage cases filed nationwide between
2008 and 2017 revealed that CMPOs initiated only seven percent of these
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cases, highlighting a significant gap in proactive enforcement.
108
In some
instances, CMPOs redirect complaints to other designated officers under
different laws, such as protection officers under the Domestic Violence Act
2005
109
or the JJ Act
110
, who then refer the complaints back to the CMPOs.
This back-and-forth highlights a need for improved clarity and streamlined
coordination in handling child marriage cases effectively.
78. We accordingly hold that, given the significant obligations expected to be
discharged by a dedicated CMPO, no officer with other responsibilities shall be
appointed as the CMPO. States or UTs shall appoint exclusive CMPOs in each
district in addition to any CMPOs already serving in a dual capacity, and they
shall equip these officers with adequate resources for the effective discharge of
their functions. If a State or UT concludes that instances of child marriage have
decreased to the extent that appointing exclusive CMPOs is no longer
necessary, it may file an application before this Court, seeking leave to appoint
a CMPO who also holds other duties at the District level.
B. The Protection of Children from Sexual Offences Act 2012
79. The Protection of Children from Sexual Offences Act 2012
111
was enacted by
Parliament to safeguard the right of all children to safety, security and protection
from sexual abuse and exploitation. It is a self-contained comprehensive
legislation for the protection of children from sexual assault, sexual harassment
108
Social and Policy Research Foundation. ‘Child and Early Marriage in India, Issue Brief’ (2021) referred in
India Child Protection, Towards Justice: Ending Child Marriages (2024), 21.
109
The Domestic Violence Act, 2005.
110
The Juvenile Justice (Care and Protection of Children) Act, 2015.
111
‘POCSO Act’
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and pornography.
112
The POCSO Act operates in a manner which promotes the
best interest and well-being of a child and ensures their healthy physical,
emotional, intellectual and social development.
113
80. The POCSO Act applies to all children regardless of their gender. Section 2(d)
defines a child as being under the age of eighteen. The Act elevates the age of
consent to eighteen years for all persons. The 2013 amendment to the IPC
increased the age of consent under the rape provision from sixteen to eighteen.
However, the marital rape exception to the rape provision in Section 375 IPC
continued to protect men for having sex with their minor wives. In Independent
Thought (supra) this court removed the inconsistency and struck down the
exception to the penal provision on rape under Section 375 IPC in so far as it
related to minors. Further, Subclause (vi) of clause (d) of Section 63 of
Bharatiya Nyaya Sanhita 2023
114
prescribes the age of consent to be eighteen
years. Section 63 BNS is pari materia to Section 375 IPC.
81. The principles of the POCSO Act are directly threatened by the commission of
child marriage. The intent of the POCSO Act i s to protect children from sexual
advances. Child marriage on the other hand is an institution which puts minor
girls directly in harm’s way. Under the POCSO Act, a man is liable to
punishment for having sex with his minor wife. Nevertheless, the existence of
child marriage and its continued recognition in the law as a valid (and voidable)
marriage threatens the dignity of children. The institution of child marriage, more
112
Statement of Objects and Reasons, POCSO.
113
Ibid.
114
‘BNS’
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directly than any other institution, stipulates for the sexual abuse of child brides
by design.
C. The Juvenile Justice (Care and Protection of Children) Act 2015
82. The Juvenile Justice (Care and Protection of Children) Act
115
was first enacted
in 2000 to provide for the protection of children. The legislation underwent
amendments in 2006 and 2011. Thereafter, based on the recorded
inadequacies of the legislation, Parliament enacted a new JJ Act in 2015. The
JJ Act was enacted in furtherance of Article 15 and Articles 39(e) and (f),
116
45
117
and 47
118
of the Constitution to ensure the proper care, protection,
development, treatment and social re- integration of children in difficult
circumstances. The JJ Act applied a child- friendly approach and is premised on
the principle of the best interest of the child.
83. The JJ Act inter alia deals with children in need of care and protection.
119
Section 2(14) defines CNCP. Sub- clause (xii) of Section 2(14) of the JJ Act
115
‘JJ Act’
116
“39. Certain principles of policy to be followed by the State.— The State shall, in particular, direct its
policy towards securing—
…
(e) that the health and strength of workers, men and women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited to their
age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment.”
117
“45. Provision for early childhood care and education to children below the age of six years.— The
State shall endeavour to provide early childhood care and education for all children until they complete the
age of six years.”
118
“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public
health.— The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State shall endeavour
to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health.”
119
‘CNCP’
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prescribes that children at imminent risk of marriage are CNCP. The provision
reads as follows:
“2. Definitions.– In this Act, unless the context
otherwise requires,–
…
(14) “child in need of care and protection” means a
child–
…
(xii) who is at imminent risk of marriage
before attaining the age of marriage and
whose parents, family members, guardians
and any other persons are likely to be
responsible for solemnisation of such
marriage;”
84. The Act provides a comprehensive framework to deal with CNCP. Section 27
120
of the JJ Act establishes the Child Welfare Committee
121
to inter alia handle
and resolve complaints in relation to children who are in need of care. The
CWC's role is to ensure the children's basic needs are met and that they are
protected, treated, developed, and rehabilitated.
85. Therefore, children who are married off are required to be produced before the
CWC so that they may be rehabilitated and taken care of. The JJ Act further
120
“27. Child Welfare Committee.– (1) The State Government shall by notification in the Official Gazette
constitute for every district, one or more Child Welfare Committees for exercising the powers and to
discharge the duties conferred on such Committees in relation to children in need of care and protection
under this Act and ensure that induction training and sensitisation of all members of the committee is
provided within two months from the date of notification.
(2) The Committee shall consist of a Chairperson, and four other members as the State
Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on the
matters concerning children.
(3) The District Child Protection Unit shall provide a Secretary and other staff that may be required
for secretarial support to the Committee for its effective functioning.
…
(8) The Committee shall submit a report to the District Magistrate in such form as may be
prescribed and the District Magistrate shall conduct a quarterly review of the functioning of the Committee.
(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of
Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of First Class.
(10) The District Magistrate shall be the grievance redressal authority to entertain any grievance
arising out of the functioning of the Committee and the affected child or anyone connected with the child, as
the case may be, may file a complaint before the District Magistrate who shall take cognizance of the action
of the Committee and, after giving the parties an opportunity of being heard, pass appropriate order.”
121
‘CWC’
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provides for the constitution of the State Child Protection Society and District
Child Protection Unit. Section 106 of the JJ Act stipulates that the State shall
constitute a State Child Protection Society and a Child Protection Unit in each
district. The mandate of the Society and Unit may be prescribed by the State.
The constitution of these societies and units is to take up matters related to
children for the implementation of the Act including inter alia notification of
competent authorities in relation to the children and their rehabilitation and co-
ordination with various official and non- official agencies concerned. The society
and units therefore have the responsibility to identify needs and engage with
stakeholders, official and non- official, for the implementation of the JJ Act. As
a beneficial social legislation aimed at children, the society and units constituted
under the JJ Act are required to proactively identify remedies and strategies for
the rehabilitation and protection of victims of child marriages.
86. Section 107 of the JJ Act further provides for the Child Welfare Police Officers
122
and Special Juvenile Police Units
123
. It stipulates that at each police station, at
least one police officer shall be appointed as the CWPO. The officer so
designated shall not be below the rank of A ssistant Sub-inspector. The
appointment of CWPOs is required to be done bearing in mind the aptitude,
appropriate training and orientation of the inspector. The officer so appointed is
in charge of exclusively dealing with children, either as victims or perpetrators,
and coordinate with the police and voluntary and non- governmental
organisations.
122
‘CWPO’
123
‘SJPU’
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87. In each district, the State governments are mandated to constitute a SJPU for
effective coordination of all police- related functions related to children. The
SJPU shall be headed by an officer of the rank of Deputy Superintendent of
Police or superior. The SJPU shall comprise all the CWPOs appointed in each
police station throughout the district as well as two social workers who have
worked on issues relating to child rights. At least one of such social workers
who is made part of the unit shall be a woman.
88. The JJ Act recognises the inapplicability of standards which accrue to adults. It
is intended to safeguard children and deal with those among them who are in
conflict with the law. In the context of child marriage, the principles enunciated
in the JJ Act as well as the framework established under it are vitally important.
Children who are at risk of marriage at the hands of their family or relatives are
expressly recognised as CNCP under the Act. The JJ Act further prescribes for
their protection, rehabilitation and development. While victims of child marriage
are protected under the JJ Act, it further strengthens the effort to eliminate child
marriages by creating a trained and skilled force of police officers to deal with
children. The SJPUs are marked by their unique ability to inject humanity in law
enforcement. The task of law enforcement officers, the police in particular, has
traditionally been associated by the State’s ability to compel compliance to its
norms. The formation of SJPUs reflects a refreshing outlook toward police work,
one which is imperative in liberal democracies’ treatment of vulnerable groups.
Law with a touch of humanity and law enforcement with a boost of sensitivity
and empathy are the cornerstone of the law on children. The JJ Act therefore
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forms an important instrument in the contemporary legal framework concerning
child marriages in India.
D. The Commissions for Protection of Child Rights Act 2005
89. The UN General Assembly adopted the Declaration on Survival, Protection and
Development of Children in 1990. In 1989 the UN adopted the Convention on
the Rights of the Child
124
which India ratified on 11 December 1992. To
implement India’s obligations under these international instruments, Parliament
enacted the Commissions for Protection of Child Rights Act 2005 .
125
90. The CPCRA seeks to assure child rights in two ways. Firstly, it establishes
National and State Commissions for the protection of Child Rights.
126
These
bodies study, review, and oversee the implementation of child rights law in
India. Secondly, the CPCRA establishes Children’s Courts for providing speedy
trial of offences against children or for violation of child rights.
127
Clause (b) of
Section 2 of CPCRA defines child rights to include the rights stipulated in CRC.
91. The NCPCR under Section 13 and the State Commissions for the Protection of
Child Rights under Section 24 of CPCRA are inter alia entrusted with performing
the function of:
124
‘CRC’
125
‘CPCRA’
126
Sections 3 and 17, CPCRA.
127
Section 25, CPCRA.
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(i) examining and reviewing the safeguards provided by any law for the
protection of child rights and recommending measures for their effective
implementation;
(ii) inquiring into violation of child rights and recommend initiation of
proceedings in such cases; and
(iii) inquiring into complaints and taking suo motu notice of matters relating to,-
(a) deprivation and violation of child rights; (b) non- implementation of laws
providing for protection and development of children; (c) non- compliance
of policy decisions, guidelines or instructions aimed at mitigating hardships
to and ensuring welfare of the children and to provide relief to such
children, or take up the issues arising out of such matters with appropriate
authorities.
92. The NCPCR and SCPCR serve the roles of review, monitoring and oversight of
the legal framework on child rights in India. While the CPCRA enables the two
commissions to effectively discharge their functions with appropriate resources,
the effective implementation of the law is contingent on pro-active initiatives of
the NCPCR and SCPCRs and the timely appointment of members to the two
commissions. The effective implementation of the PCMA also falls within the
subject matter of the NCPCR and SCPCRs. Over time, the commissions have
collected data and reviewed the progress of the implementation of the PCMA.
The operative directions and guidelines that we shall issue in this judgment shall
also stipulate the further and specific role that we envision for the NCPCR and
SCPCRs to perform in the prevention and elimination of child marriages.
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93. The MWCD and the NCPCR have been actively engaged in raising awareness
about the negative consequences of child marriage and strengthening the
enforcement of the PCMA. In recent years, the NCPCR has conducted multiple
review meetings and collaborated with a broad spectrum of stakeholders,
including District Magistrates, CMPOs, CDPOs, CWCs, and Anganwadi
Workers.
128
These initiatives have aimed to create a coordinated approach to
tackling child marriage at the grassroots level.
94. The NCPCR has also concentrated on identifying children at risk by compiling
school-wise data on those who have dropped out or exhibit irregular
attendance. In 2023- 2024, the NCPCR identified 645,673 children across India
who were either out of school or at risk of early marriage. The Commission
directed district authorities to pinpoint vulnerable children from this list, prevent
their marriages, and ensure proper rehabilitation for those affected. While these
awareness campaigns and data- driven interventions have been vital, it is
evident that awareness alone is not enough to prevent child marriages
effectively. Enforcement of laws, community engagement, and support systems
for vulnerable children are equally crucial.
E. The Legal Services Authorities Act 1987
95. The Legal Services Authorities Act 1987 was enacted to constitute legal
services authorities at the National, State and District levels to provide free and
competent legal services to the weaker sections of the society. The constitution
128
‘AWWs’
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of the authorities is aimed at ensuring that opportunities for securing justice are
not denied to any citizen by reason of economic or other disabilities.
96. Section 12(c) of the Act stipulates that any child who has to file or defend a case
is entitled to legal services.
129
The Legal Services Authorities are therefore
under an obligation under the Act to assist minors who file cases under the
PCMA to exercise their statutory rights. The National Legal Services
Authority,
130
State Legal Services Authority,
131
District Legal Services
Authorities,
132
Taluk Legal Services Committees, High Court Legal Services
Committees, and Supreme Court Legal Services Committee have formulated
various schemes to be followed while they deal with legal services to
children.
133
We shall make further directions in this regard to legal services
authorities in the operative portion of this judgment.
F. Policies formulated by the Union Government
97. In addition to the legislative apparatus outlined above, the Union has submitted
that the MWCD proposed a National Strategy on Child Marriage on 14 February
2013. This strategy emphasized linking with Integrated Child Protection
Scheme
134
structures and statutory bodies to ensure early detection and swift
referral of cases needing care and protection. One of its strategic directions was
129
Section 12(c), The Legal Services Authorities Act 1987,
130
‘NALSA’
131
‘SLSA’
132
‘DLSA’
133
See for example National Legal Services Authority (Child Friendly Legal Services to Children and their
Protection) Scheme, 2024.
134
‘ICPS’
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to ensure that children already in child marriages should not face discrimination
in accessing health, nutrition, education, and employment services.
98. The Union Government has also implemented several schemes aimed at
empowering young girls and women, such as Sukanya Samridhi Yojana,
Pradhan Mantri Awas Yojana (Urban & Rural), Pradhan Mantri Jan Dhan
Yojana, and Pradhan Mantri Matru Vandana Yojana (PMMVY). These
initiatives aim to promote social well-being and to create a supportive
environment for young girls. Complementing these efforts are programs like
Samagra Shiksha, the National Overseas Scholarship Scheme, Babu Jagjivan
Ram Chhatrawas Yojana, and the Swachh Vidyalaya Mission, whic h focus on
making schools girl-friendly, particularly for vulnerable sections of society. The
Rajiv Gandhi Scheme for Empowerment of Adolescent Girls – SABLA,
launched on November 19, 2010
135
, in 200 districts, focuses on empowering
adolescent girls (aged 11-18) by improving nutrition, health, and vocational
skills. SABLA provides nutrition at Rs 5 per day for 300 days, iron and folic acid
supplementation, health check-ups, nutrition and health education, family
welfare guidance, and vocational training for girls aged sixteen and above under
the National Skill Development Programme. It also raises awareness about the
importance of marrying at the appropriate age.
99. To enhance the employability of female workers, the Ministry offers training
through a network of Women’s Industrial Training Institutes, National Vocational
Training Institutes, and Regional Vocational Training Institutes. Additionally, the
135
See Rajiv Gandhi Scheme for Empowerment of Adolescent Girls: Sabla, https://www.india.gov.in/rajiv-
gandhi-scheme- empowerment-adolescent-girls-sabla.
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Skill India Mission aims to ensure economic independence for women through
skill development.
100. The Ministry implements the Beti Bachao Beti Padhao scheme
136
, which
specifically aims to address issues of gender inequality by promoting the
education and welfare of girls. It targets high- risk districts with low child sex
ratios and focuses on changing societal attitudes toward girls through
awareness campaigns, community engagement, and promoting girl -friendly
educational infrastructure. Additionally, the Union has established CHILDLINE,
a 24/7 emergency outreach service for children in crisis, which coordinates with
police and child protection services to address various issues, including child
marriage prevention.
101. Despite these efforts, there remains a gap in implementing specific,
targeted measures focused solely on the prevention of child marriage. Existing
schemes, while impactful, do not provide sufficient tools to tackle child marriage
comprehensively. For instance, while training and educational programs are
vital, there appears to be a lack of robust mechanisms to monitor the long- term
outcomes of these initiatives, particularly in rural and underserved areas where
child marriage rates are often high. Additionally, while financial support is
essential in empowering women, it may not always effectively reach the most
vulnerable communities. Therefore, we direct that a special scheme be
introduced, specifically focusing on skill development, vocational training, and
economic stability for women and girls who choose to leave child marriages.
136
See https://www.myscheme.gov.in/schemes/bbbp.
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This scheme should include provisions for legal aid, psychological support, and
financial assistance to help them transition to a life of self-reliance.
G. States’ efforts to curb child marriage
102. Each State and UT in India has introduced training programs, awareness
initiatives, and financial incentives as part of a comprehensive approach to
enforcing the PCMA
137
. These efforts encompass preventive training,
education, financial support, and community-based outreach to discourage
child marriage and promote girls' education and empowerment. Relevant up- to-
date data on the States’ efforts to curb child marriage over the last three years
has been placed before this Court. As and by way of illustration, we shall briefly
provide an overview of the efforts made in regard to (i) training schemes, (ii)
awareness programs, (iii) financial incentives and (iv) other incentives. We shall
then analyse the impact of these schemes broadly.
i. Training schemes
103. Across India, States and UTs have conducted extensive training programs
over the past three years to equip officials and communities with the knowledge
needed to combat child marriage. States and UTs are conducting training
programs to equip officials and communities with the knowledge needed to
combat child marriage.
137
Additional Affidavit, Ministry of Women and Child Development (2023). The data highlights the steps
undertaken by the States in the Past Three Years – 2020 - 2023.
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104. States like Telangana, Uttar Pradesh, Jharkhand, Gujarat, and Chhattisgarh
have conducted training and awareness programs for field workers through
DCPUs, providing critical information on the PCMA. Some states have
partnered with DWCD&SS and UNICEF, with support from partner
organizations, to conduct these training sessions. For instance, Karnataka has
established Child Marriage Prohibition Cells
138
under its Spoorthi Yojana
139
to
train staff in identifying and preventing child marriages. Additionally, Rs. 12.51
crores have been allocated for training Protection Officers and staff in Special
Cells for women and children
140
. In Haryana, Protection- cum-Prohibition
officers receive intensive training and sensitization from experts with support
from NIPCCCD and HIPA. These initiatives indicate a structured approach,
focusing not only on immediate prevention but also on long- term societal
change by raising awareness and educating local populations about the harms
of child marriage.
ii. Awareness programs
105. Awareness initiatives play a vital role in changing societal perceptions about
child marriage and promoting girls' education. In terms of the number of
awareness sessions over the last year , most sessions have been reported by
138
These cells deal with the administrative Sanction of Spoorthi Yojana, Action Plan, Prohibition of Child
Marriage Act Systematic Procedure, Coordination and Review Committee, Cell Establishment Details, Child
Marriage Prohibition Officers Roles and responsibilities and additional CMPOs Orders, Revised Committee
Order at Gram panchayat; See details of Government orders and guidelines for major schemes and programs
of the Department (2024) https://dwcd.karnataka.gov.in/info-
4/Details+of+Government+orders+and+guidelines+for+major+schemes+and+programs+of+the+Departme
nt/en.
139
The Scheme was first introduced on a pilot basis, has been successful, and will now be extended to a few
more districts. It aims to improve nutritional levels and empower 12- to-18-year adolescent girls in 5 districts
covering 50000 adolescent girls from 11 Special Development Plan Taluks.
140
The State cabinet approved the release of Rs 12.51 crore for ‘Spoorthi scheme’ in 2023.
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Andhra Pradesh, Uttar Pradesh, Odisha and Tamil Nadu.
141
Andhra Pradesh
conducted 37,446 sessions, reaching 857,012 participants; Uttar Pradesh
conducted 35,377 sessions, reaching 1,248,394 participants; and Odisha
conducted 33,276 sessions covering 30,755 blocks and villages.
142
Additionally, Tamil Nadu has actively engaged communities with widespread
awareness programs tailored to local needs.
143
106. States have deployed varied and unique measures in spreading awareness
such as leveraging local media to economically empower girls,
144
distributing
legal informational pamphlets in rural areas,
145
partnering with NGOs,
146
facilitating community meetings
147
, targeted awareness programs focusing on
high school students and school dropouts
148
, and running educational YouTube
channels.
149
107. This grassroots, multisectoral collaboration is essential, as it leverages
community-based networks to reach children most at risk, ensuring early
intervention and protection against child marriage. It strengthens coordination
141
NCCPR, Comprehensive Report of Virtual Review Meetings on Child Marriage with Districts All Over
India For 2023- 2024 (2024).
142
Ibid.
143
Ibid.
144
Delhi Ladli Scheme, 2008 has been operational since 01.01.2009 for controlling female foeticide,
improving the sex ratio, and empowering girls educationally and financially.
145
Haryana has engaged 1,855 stakeholders through targeted campaigns, distributing over 50,000
informational pamphlets in rural areas to explain the legal ramifications and adverse impacts of child
marriage; Similarly, Tamil Nadu has created thirteen different types of posters, with 3,77,585 posters
distributed across the state, and an allocation of Rs. 50 lakhs specifically for campaigns in ten economically
disadvantaged districts.
146
Odisha has partnered with NGOs to conduct 1,500 workshops in schools.
147
Assam facilitated community meetings in 200 villages, highlighting the harmful effects of early marriage
on health, education, and economic opportunities.
148
Telangana has organized targeted awareness programs aimed at identifying vulnerable children,
particularly with the support of Village Child Protection Committee members. These initiatives focus on high
school students and school dropouts, working in coordination with ICPS, ICDS, ChildLine, Sakhi staff,
Anganwadi teachers, ASHA workers, and local Sarpanchs.
149
Tamil Nadu launched an educational YouTube channel and provided 3- 6 months of vocational training to
support victims of child marriage, equipping them with skills for a better future.
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between state authorities, NGOs, and local stakeholders to enhance the impact
of these awareness initiatives.
iii. Financial incentives
108. Financial incentives play a significant role in these initiatives. In Telangana,
the Shaadi Mubarak and Kalyana Lakshmi schemes offer cash transfers to
eligible families; for instance, families receive a one- time grant of approximately
Rs. 1 lakh upon the girl reaching adulthood
150
. Chhattisgarh offers a similar
scheme, the Noni Suraksha Yojana, while Bihar’s Kanya Utthaan Yojana
provides financial support of Rs. 25,000 per girl to encourage education and
delay marriages and Mantri Vivah Yogana aids families by covering marriage
expenses for eligible girls. Madhya Pradesh’s Ladli Lakshmi Yojana links
financial support to educational milestones, offering up to Rs. 6,000 for
completing certain grades.
151
In Andhra Pradesh, the Jagananna Amma Vodi
program aims to improve the Gross Enrollment Rate (GER) and promote higher
education for girls. Rajasthan’s Mukhyamantri Kanyadan Yojana provides
financial assistance to BPL families from SC, ST, and minority communities for
the marriages of girls upon reaching 18 years.
109. These financial incentives serve as a powerful tool in reducing child
marriage and enhancing girls' education by alleviating the financial expenses of
150
The Government of Telangana launched the 'Kalyana Lakshmi/Shaadi Mubarak scheme provided to
unmarried girls who are above 18 years of age from SC, ST, BC and Minority families (with a combined
income of both parents not exceeding Rs. 2,00,000 per annum) at the time of their marriage.
151
This aims to discourage child marriage, eradicate female infanticide, rectify the falling birth rate of girls,
improve the health and educational status, curtail inequality and uphold the status of the girl child in the
society. ln this scheme, there is a provision for a final payment of Rs. 1.00 lakh on completion of 21 years of
age of the girl child, on appearing in class 12th examination birth and on early marriage
Instructions were issued for Akshay Tritiya.
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families. These States demonstrate promising results in increasing girls'
enrolment in schools through targeted financial assistance programs. However,
these schemes must be supported by robust monitoring and evaluation
mechanisms to ensure that the funds are used effectively and that the intended
outcomes are achieved.
iv. Other initiatives
110. In addition to training, awareness, and financial support, states have
implemented various structural measures to reinforce the PCMA. For example,
some States conduct regular meetings with school authorities to identify and
reintegrate school dropouts, using education as a key tool to prevent child
marriages. States like Assam collaborate with NGOs and CBOs to rehabilitate
victims, provide compensation, and facilitate home visits through DCPU staff.
Several states have also drafted action plans: Uttar Pradesh has District Action
Plans for ending child marriage and a dolescent empowerment, incorporating
and adapting activities from the State Action Plan. Rajasthan introduced its
State Action Plan in 2017
152
, anchoring multiple interventions and activities to
address the root causes of child marriage. These plans include partnerships
and monitorable indicators, ensuring that progress is tracked and evaluated for
effectiveness and relevance.
152
Rajasthan Government (2017), ‘State Strategy and Action Plan for Prevention of Child Marriage: Towards
creating a child marriage free Rajasthan; The document articulates the principles, strategy, vision, objectives,
actions, coordination mechanisms and resources that will ensure effective
implementation of the actions/interventions to end child marriage in Rajasthan.
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111. Additionally, some S tates like Karnataka have created online portals to
monitor child marriage cases, enhancing transparency and accountability.
153
These structural initiatives, supported by partnerships with community
organizations and digital monitoring tools, are crucial to a holistic approach that
prevents child marriages and strengthens protection for vulnerable children.
v. Impact analysis of State schemes
112. The data reveals that a comprehensive, multifaceted approach involving
training schemes, awareness programs, and financial incentives is essential for
effectively combating child marriage. However, not all S tates have adopted this
three- pronged strategy. States such as Andhra Pradesh, Telangana, and Bihar
showcase strong alignment with this multifaceted approach. For instance, the
financial incentive schemes in Telangana and Bihar effectively incentiviz e
families to delay marriage. States like Haryana, Utta r Pradesh and Chhattisgarh
focus on training and awareness. The absence of direct financial support could
limit their schemes’ impact on economically vulnerable communities. While
these efforts contribute to raising awareness and promoting societal change,
families facing financial hardships may still lean toward early marriage without
economic support for educational or vocational opportunities. The absence of
direct financial assistance may limit the reach and impact of otherwise well-
designed training and awareness programs, as families in economically
challenged communities may not feel the immediate benefits of delaying
marriage without addressing financial constraints.
153
Karnataka’s online portal ‘Surakshini’ keeps track of the child’s status, and every department official
involved has to log in regularly.
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113. The data on child marriages across various States and UTs shows a range
of outcomes in both prevention and prosecution efforts over the last three years.
Several states, such as Andhra Pradesh, Karnataka, and West Bengal, report
a high number of cases, though many of these cases were prevented before
the marriages could be solemnized. Karnataka documented 8,348 child
marriage cases, preventing 7,306 of these, while Andhra Pradesh reported
3,413 cases, with 3,136 successfully prevented. This reflects a proactive
approach to preventing child marriages in some states, where authorities
intercept and prevent a significant portion of cases before, they are formalized.
114. Some States illustrate discrepancies between the number of child marriage
cases reported, the number prevented, and the number of FIRs filed.
Maharashtra reported 2043 cases prevented but registered 178 FIRs ,
suggesting limited legal follow-through. Similarly, Telangana reported 4440
cases of child marriage, of which only 149 FIRs were filed. Andhra Pradesh,
despite having 3,416 cases registered, filed 10 FIRs. These gaps highlight
potential obstacles in prosecution and a possible need for streamlined
cooperation between child marriage prevention authorities and law
enforcement agencies. Tamil Nadu presents a more comprehensive approach,
where both prevention and FIR filing are high; with 8,966 reported cases, the
state successfully prevented 6,436 marriages and filed 2,392 FIRs.
115. Interestingly, several States and UTs, such as Dadra and Nagar Haveli,
Meghalaya, Mizoram, and Nagaland, reported no cases of child marriage over
the last three years. While this might indicate minimal occurrences of child
marriage in these areas, it could also suggest underreporting or a lack of
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awareness of the issue among authorities and communities. Furthermore,
States and UTs like Chhattisgarh, Chandigarh and Puducherry, which reported
very low figures or none at all, raise questions about the consistency and
accuracy of data reporting processes.
116. A more comprehensive look across all regions also includes variations in the
effectiveness of interventions. In addition, the number of cases leading to FIRs
is relatively low across most states compared to the number of marriages
reported, highlighting potential gaps in legal action and prosecution efforts.
Even in states with high intervention rates, the limited legal action suggests that
additional support may be needed to ensure accountability and deterrence.
VI. Traversing frontiers: international human rights norms
117. The development of child rights law is highly influenced by the evolving legal
standards in international law. The comity of nations has arrived at a broad
consensus rooted in the goal to realise universal human rights of children.
Domestically and abroad, various jurisdictions have developed their legal
standards under the influence of global advancements in international bodies.
It is therefore instructive to look at the progress made and prevailing standards
on child rights in the context of early and forced marriage in international law.
We shall therefore trace the universal framework on child rights, various
regional advancements and the rights-based framework against child marriage
presently.
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A. Universal framework
118. Early international conventions did not explicitly prohibit child marriage. With
the evolution of international law, the community of nations inched closer to an
agreeable standard against child marriage. We shall trace this evolution in
international human rights norms presently. First , we shall briefly overview the
Universal Declaration of Human Rights,
154
then we shall explore the
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery of 1956
155
and the International
Covenant on Civil and Political Rights 1966.
156
Lastly we shall look at the two
seminal conventions on the issue of child marriage, namely, the Convention on
the Elimination of All Forms of Discrimination against Women 1979
157
and the
CRC 1989.
i. Universal Declaration of Human Rights
119. The UDHR adopted as General Assembly Resolution 217 A (III) in 1948,
158
set forth fundamental principles regarding the right to marry. Article 16(1) of the
UDHR stipulates that men and women of full age, without any limitation due to
race, nationality, or religion, have the right to marry and to found a family.
159
They are entitled to equal rights as to marriage, during marriage, and at its
dissolution. Article 16(2) further stipulates that marriage shall be entered into
154
‘UDHR’
155
The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery of 1956; India ratified it on 23 June 1960.
156
‘ICCPR’
157
‘CEDAW’.
158
The Universal Declaration of Human Rights, G.A. Res. 217, U.N. Doc. A/810 (1948).
159
Ibid, article 16(1); See also Maja Eriksson, ‘Article 16’ in The Universal Declaration of Human Rights: A
Commentary, ed. Aide Eide et al. (Oxford: Scandinavian University Press, 1992), 243.
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only with the free and full consent of the intending spouses.
160
Although it does
not specify a minimum age for marriage, the UDHR establishes that marriage
should be based on free and full consent, laying an early framework for
safeguarding autonomy and protecting individuals from coerced or forced
marriages.
161
120. In the years following the UDHR, International Human Rights Law
162
began
to recognize and address the specific vulnerabilities and abuses associated
with child marriage. This shift was a response to growing evidence that child
marriage disproportionately harms girls, undermining their education, health,
and prospects for economic independence. Recognizing that such marriages
are often non- consensual and perpetuate cycles of poverty and inequality, the
international community began drafting conventions aimed at setting protective
standards for marriageable age and conditions.
ii. Recognition in political conventions
121. The Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to Slavery of 1956
163
expanded on these
protections by directly addressing practices similar to slavery, including child
marriage. Article 2 of the Convention mandates that State Parties prescribe,
where appropriate, suitable minimum ages of marriage and encourage the use
of facilities whereby the consent of both parties to a marriage may be freely
expressed in the presence of a competent civil or religious authority
164
. This
160
Ibid, article 16(2).
161
Ibid.
162
‘IHRL’
163
The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery, 1956.
164
Ibid, Article 2.
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provision reflects a recognition that child marriage can be exploitative and akin
to slavery. In aligning marriage requirements with those designed to end
slavery- like practices, the Convention highlights the UN's stance against child
marriage as a form of coercion and exploitation.
122. These standards were developed as a matter of political rights guarantee in
the ICCPR
165
. Article 23(2) establishes the right of men and women of
marriageable age to marry and to found a family.
166
Article 23(3) prescribes that
no marriage shall be entered into without the free and full consent of the
intending spouses.
167
Finally, Article 23(4) requires that State Parties take
measures to ensure equality in marriage, signalling the UN’s increasing
recognition of individual autonomy, choice, and consent in marriage.
168
This
framework not only advocates for minimum marriageable age requirements but
also emphasizes free and full consent. The framers of these documents aimed
to prevent child marriage by specifically using the terms “men and women,”
rather than “males and females,” to imply an age of maturity and decision-
making capacity necessary for marriage.
169
iii. Targeted focus: the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the
Child.
123. The progress of the international community led to the ground-breaking
inclusion of child marriage as an expressly recognised illegality in the
165
UN General Assembly (1966). International Covenant on Civil and Political Rights, United Nations, Treaty
Series, vol. 999, p. 171.
166
ICCPR, Article 23 (2).
167
ICCPR. Article 23(3).
168
ICCPR. Article 23(4).
169
See Maja Eriksson, ‘Article 16’ in The Universal Declaration of Human Rights: A Commentary, ed. Aide
Eide et al. (Oxford: Scandinavian University Press, 1992), 243.
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CEDAW
170
. Article 16(2) explicitly invalidates child betrothals and marriages,
calling for legislation to establish a minimum age for marriage and mandate
official registration.
171
This is crucial to CEDAW’s objective of safeguarding
women's rights and autonomy, highlighting that child marriage undermines the
agency, equality, and dignity of girls and women. By emphasizing that child
marriages should have no legal effect, CEDAW directly addresses the systemic
inequalities perpetuated through such practices.
124. The guarantee to women in CEDAW was further tailored as a matter of child
rights in 1989 with the adoption of the CRC
172
. It was essential to establish a
global framework dedicated to children because, despite previous human rights
treaties, there remained gaps in protections for children who, due to their age
and vulnerability, require special safeguards. The CRC acknowledges the
unique needs of children for development,
173
care, and protection from abuse,
exploitation, and neglect.
174
The international community recognized that
children are often marginalized, and their rights overlooked, which made it
critical to implement specific provisions tailored to them.
125. Article 1 of the CRC defines a child as a person below the age of eighteen
unless, under the law applicable to the child, a majority is attained earlier.
175
In
the context of child marriage, this provision sets a clear threshold for defining
170
UN General Assembly (1989). Convention on the Elimination of All Forms of Discrimination Against
Women, United Nations, Treaty Series, vol. 1249, p. 13.
171
CEDAW, Article 16 (2).
172
UN General Assembly (1989). Convention on the Rights of the Child, United Nations, Treaty Series, vol.
1577, p. 3.
173
CRC, Article 6(2); State Parties shall ensure to the maximum extent possible the survival and development
of the child.
174
CRC, Article 19 (1); Requires States to take all appropriate measures to protect the child from all forms of
abuse, neglect, or maltreatment while in the care of parents.
175
CRC, Article 1.
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who is considered a child, ensuring that international standards focus on the
protection of minors from early and forced marriages. Article 19(1) of the CRC
requires State Parties to take all necessary legislative, administrative, social,
and educational measures to protect children from all forms of physical or
mental violence, injury, abuse, neglect, or exploitation, including sexual abuse,
whether committed by parents, guardians, or others responsible for the child’s
care.
176
This article recognizes that children, due to their vulnerability, require
comprehensive protection across various domains of life, especially from forms
of violence that may occur within the family or caregiving environment. This is
particularly relevant in cases of child marriage, where minors may face abuse
or exploitation under the guise of familial or cultural practices. Article 19(2)
further emphasizes the need for protective measures, including the creation of
social programs, support services for children and caregivers, and judicial
mechanisms to address and prevent maltreatment.
177
This highlights the
importance of establishing a robust framework for the identification, reporting,
and follow-up of child abuse cases, offering practical measures for intervention
and prevention.
B. Regional framework
126. In addition to international conventions, three important regional
conventions have addressed the issue of child marriage. Regional conventions
reflect the targetter focus of a region to pivot their shared values and goals into
176
CRC, Article 19(1).
177
CRC. Article 19(2)
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obligatory and tangible outcomes. We shall elucidate the framework developed
in the African Union, the European Union and the SAARC.
i. African Union
127. The African Charter on the Rights and Welfare of the Child,
178
adopted in
1990,
179
builds upon international frameworks by requiring State Parties to
enact legislation setting eighteen as the minimum age for marriage. Article 21
of the Charter specifically addresses “Protection against Harmful Social and
Cultural Practices,” stating that all necessary measures should be taken to
eliminate customs detrimental to children’s health, dignity, and development.
180
Under Article 21(2), child marriage and betrothal are prohibited, with a mandate
that states enact laws setting a minimum marriageable age of eighteen and
ensuring compulsory marriage registration.
181
128. In Association pour le Progrès et la Défense des Droits des Femmes
Maliennes (APDF) and the Institute for Human Rights and Development in
Africa (IHRDA) v. Republic of Mali,
182
the African Court on Human and
Peoples’ Rights addressed significant issues regarding child marriage. The
applicants argued that Mali’s Family Code of 2011, which set the minimum
marriage age for girls at sixteen (with exceptions allowing marriage as young
as fifteen), violated key international agreements such as the African Charter
178
‘ARWRC’
179
The African Charter on the Rights and Welfare of the Child (1990). OAU Doc. CAB/LEG/24.9/49, entered
into force Nov. 29, 1999; See also IPAS, African Alliance for Women’s Reproductive Health Rights – A
Handbook for Advocacy in the African Human Rights System (Chapel Hill: IPAS, 2006), 29.
180
ARWRC, Article 21(1).
181
ARWRC, Article 21(2).
182
Association pour le progrès et la défense des droits des femmes Maliennes (APDF) and the Institute for
Human Rights and Development in Africa (IHRDA) v. Republic of Mali, App. No. 046/2016, Judgment, African
Court on Human and Peoples' Rights [Afr. Ct. H.P.R.] (May 11, 2018).
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on Human and Peoples’ Rights on the Rights of Women in Africa
183
and the
ACRWC both of which require a minimum marriage age of eighteen to protect
the rights of children. Furthermore, the applicants raised concerns that religious
authorities in Mali often performed marriages without ensuring full and free
consent from both parties, leading to forced marriages that particularly affected
young girls.
184
129. The court found that Mali’s Family Code was i ncompatible with i ts
obligations under multiple international instruments, including the Maputo
Protocol, the ACRWC and CEDAW.
185
Specifically, the Family Code’s
provisions on minimum marriage age and the lack of mandatory consent were
seen as violations of these treaties, which seek to eliminate harmful practices
and ensure gender equality and child protection.
186
Consequently, the court
ordered Mali to amend its Family Code to align it with these international
standards by setting a minimum marriage age of eighteen, ensuring free
consent to marriage, and providing equal inheritance rights for all children,
including those born outside of marriage.
130. This ruling is significant because it highlights the enforceability of
international human rights treaties at the regional level, compelling Mali to
amend its laws to meet international obligations. By holding Mali accountable,
the court reinforced the legally binding nature of the Maputo Protocol, ACRWC,
and CEDAW, promoting the standardization of human rights protections across
Africa. This decision also sets a precedent for other African nations,
183
‘Maputo Protocol’
184
Ibid, para 59, 60, 62.
185
Ibid, para 124.
186
Ibid, para 125.
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emphasizing the duty to harmonize domestic laws with international child
protection standards.
ii. European Union
131. In the European Union, the European Convention on Human Rights
187
is
a key legal instrument that impacts issues of marriage and child protection.
188
Specifically, Article 12 of the ECHR grants men and women of marriageable
age the right to marry
189
, while Article 8 protects the right to respect for private
and family life.
190
These articles do not directly set a minimum age for marriage
but do highlight the importance of individual autonomy and respect for personal
and family life, which are relevant to child marriage discussions. Article 3,
which prohibits inhuman or degrading treatment, has also been interpreted to
protect vulnerable individuals, including children, from practices that may be
harmful or coercive, such as child marriage.
191
132. Early marriage in the European Region is described as an abrupt and
premature transition from childhood to adult life for the affected minors, who are
predominantly girls
192
. At the EU level, the resolution of the European
Parliament of 4 October 2017 on “Ending Child Marriage” references the
considerable negative effects of child marriage on the rights of children, in
particular those of girls affected by the practice.
187
“ECHR”
188
The European Convention on Human Rights, 1950; See https://www.echr.coe.int/european- convention-
on-human- rights
189
ECHR, Article 12.
190
ECHR, Article 8.
191
Ibid, Article 3.
192
Parliamentary Assembly of the Council of Europe, Forced Marriage in Europe (2018), Resolution 2233,
para. 2; Recognised that Early marriage thereby typically leads to restricted opportunities for education and
economic development of women, who are mostly affected.
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133. A landmark case in the German Federal Constitutional Court
193
involved a
Syrian couple who married in 2015 under Syrian law, with the wife being 14 at
the time. Fleeing the Syrian conflict, they arrived in Germany, where the
authorities took the young wife into care due to her minor status. Citing the Act
to Prevent Child Marriages 2017, the German courts automatically invalidated
the marriage under Article 13(3) no. 1 of the Introductory Act to the Civil Code
(EGBGB), which prohibits the recognition of marriages if one spouse was under
16 at the time. The husband contested this, arguing that their marriage was
valid under Syrian law and should be recognized in Germany.
134. The Federal Constitutional Court of Germany ruled that, although the state
has a legitimate interest in protecting minors from child marriage, the automatic
invalidation of marriages involving minors under 16 was unconstitutional.
194
The
Court found that the law lacked provisions for dealing with the legal
consequences of invalidation, and it failed to offer the possibility of validating
the marriage once both parties reached adulthood. This automatic invalidation
was seen as conflicting with Article 6(1) of the German Basic Law , which
protects the right to marry and form a family
195
. It is a right that is based on the
free will, equality and autonomy of the partners and involves special mutual
obligations, with the official ceremony of marriage serving to substantiate the
marriage through a formal act.
196
135. The Court recognised that the invalidation of such marriages not only
safeguards minors from the inherent risks associated with marital cohabitation
193
See BVerfG, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 (Germany).
194
Ibid, Para 44- 45.
195
Ibid, Para 107.
196
Ibid, Para 114 -116.
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but also enhances the legal options available to guardians. They can determine
the living arrangements of married minors without considering their marital
status, ensuring that decisions prioritize the child's best interests under IHRL
197
.
Protecting minors from early marriage aligns with the state's duty to uphold life
and physical integrity under Article 2(2) of the German Basic Law and
addresses the need to eliminate disadvantages faced by women.
As a result, the court ordered the legislature to amend the law by 30 June 2024,
to address these gaps, thus providing legal clarity on the status of such
marriages and offering a pathway for validation after reaching adulthood.
198
This case illustrates the complexities involved in addressing child marriage
within Europe, particularly in the context of refugees and migration. While the
German law aimed to protect minors, the Federal Constitutional Court
emphasized the need for balance.
136. In India, the PCMA protects child brides and any child born from a child
marriage by prescribing for their maintenance, residence and custody. Further,
any child born from such a marriage is deemed legitimate. These provisions
apply even when the marriage has been nullified at the instance of the minor
contracting party. India therefore does not have the same legal gap that the
Federal Constitutional Court observed in German law. Protections of
maintenance, residence and custody under family law are a recognition of the
responsibilities that society places on families after marriage. The philosophy is
that a law must not merely penalise criminal action – in this case child marriage
– but must also compensate and address the harm meted out to the victim.
197
Ibid.
198
Ibid, Para 190- 192.
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iii. SAARC
137. Child marriage is a significant concern in South Asia, where approximately
one in four young women are first married or in union before reaching the age
of eighteen.
199
The prevalence of child marriage varies greatly across the
region, with over 50% of girls married before eighteen in Bangladesh, compared
to only 2% in the Maldives.
200
Furthermore, even within individual countries,
disparities exist; for example, Afghanistan shows a tenfold difference in child
marriage rates across its provinces.
201
Although child marriage is less common
among boys, it still occurs, with nearly 1 in 10 young men in Nepal reporting
childhood marriages.
202
Despite these challenges, South Asia is recognized for
its progress in reducing child marriage rates, showcasing a potential pathway
for other regions facing similar issues.
138. The SAARC Charter,
203
established in 1985, lays the foundation for regional
cooperation among the eight South Asian countries—Afghanistan, Bangladesh,
Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka. It emphasizes the
need for collaboration in various sectors, including social development, which
encompasses the protection of children's rights. The Convention on Regional
Arrangements for the Promotion of Child Welfare in South Asia, adopted in
199
UNICEF (2023). A Profile of Child Marriage in South Asia; UN (2022). United Nations Department of
Economic and Social Affairs, Population Division, World Population Prospects.
200
Ibid.
201
Ibid.
202
Ibid.
203
The Charter of the South Asian Association for Regional Cooperation; The objectives of the association
are to: a) promote the welfare and quality of life of the peoples of South Asia; b) accelerate economic growth,
social progress, and cultural development, ensuring individuals can live with dignity and realize their full
potential; c) enhance collective self-reliance among South Asian countries; d) foster mutual trust,
understanding, and appreciation of shared challenges; e) encourage collaboration and mutual assistance in
economic, social, cultural, technical, and scientific areas; (f) strengthen cooperation with other developing
countries; g) collaborate in international forums on common interests; h) engage with international and
regional organizations with similar goals
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2002
204
, specifically addresses the alarming prevalence of child marriage in the
region. This Convention recognizes child marriage as a violation of children's
rights and advocates for legislation to set a minimum marriage age, promote
awareness, and protect children from harmful practices.
139. The Convention reinforces the commitment of SAARC member states to
create a protective environment for children by calling for effective measures to
combat child marriage. This includes the establishment of monitoring systems,
the promotion of education, and the mobilization of community resources to
challenge cultural norms that perpetuate child marriage.
C. Rights based framework
140. Child marriage is forced marriage and international law recognises it as
such. Early marriage, or child marriage involves children under eighteen years.
The majority of child marriages involve minor girls. The joint General
Recommendation and Comment on harmful practices from the CRC and the
CEDAW Committee states
205
:
“A child marriage is considered to be a form of
forced marriage, given that one and/or both
parties have not expressed full, free, and
informed consent. As a matter of respecting the
child’s evolving capacities and autonomy in making
decisions that affect her or his life, a marriage of a
mature, capable child below 18 years of age may be
allowed in exceptional circumstances, provided that
the child is at least 16 years of age and that such
decisions are made by a judge based on legitimate
exceptional grounds defined by law and on the
evidence of maturity, without deference to culture
and tradition.”
(emphasis supplied)
204
The Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, 2002.
205
Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against
Women /General comment No. 18 of the Committee on the Rights of the Child on harmful practices”, UN
Doc CEDAW/C/GC/31-CRC/C/GC18 (2014), para 20.
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141. The joint General Recommendation and Comment proposed a detailed
regime of laws to address forced and early marriage, including raising
awareness, addressing root causes, ensuring proper registration of births and
marriages, protection orders, and ensuring access to remedies and reparations,
including the use of criminal law.
206
142. This issue has been dealt with in international case laws as well. In
Prosecutor v. Dominic Ongwen,
207
the International Criminal Court's Appeals
Chamber focused on a former commander of the Lord's Resistance Army who
was charged with war crimes and crimes against humanity. The court had to
adjudicate whether the legal characterization of 'forced marriage' could be
classified as an 'other inhumane act' under Article 7(1) of the Rome Statute.
208
The Trial Chamber noted that forced marriage is similar in nature and gravity to
the acts listed in Article 7(1).
209
143. The violation of relational autonomy has been characterized in various ways
under international law. Within the framework of international human rights law,
forced marriage fundamentally denies individuals the right to freely and
consensually enter into a conjugal union. This denial not only infringes upon
personal liberty but also undermines the essential dignity and agency of
individuals, particularly women, who are disproportionately affected by such
practices. The Court noted:
“The first type of harm caused by forced marriage,
the violation of relational autonomy, has been
206
Ibid.
207
No. ICC-02/04- 01/15 A A2 (Ongwen Trial Judgment).
208
The Rome Statute, Article 7(1); “Other inhumane Act” is defined as (k) Other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or to mental or physical health”
209
Ongwen Trial Judgment, para. 2751.
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described in various ways under international law.
Under international human rights law, the crux of
forced marriage is the denial of the right to freely and
consensually enter into marriage. In other words,
the focus is on consent to marriage. For
example, the International Covenant on Civil and
Political Rights ("ICCPR”) states that “No
marriage shall be entered into without the free
and full consent of the intending spouses”.
Similarly, the Convention on the Elimination of
All Forms of Discrimination Against Women
(“CEDAW”). The same right freely to choose a
spouse and to enter into marriage only with their
free and full consent”. International human rights
law bodies have recognized that forced marriage, as
defined under international human rights law, can
take place both in peacetime and in armed conflict.
International criminal law similarly recognizes the
deprivation of relational autonomy through the
imposition of a “conjugal union” on a victim. This
union need not be marriage as recognized under
domestic law, as it also includes relationships in
which the victim is forcibly attached to a particular
person outside of the context of domestic marriage
law. These forced conjugal unions can take place
during armed conflict or ‘peacetime’ mass atrocity,
and under oppressive regimes, and can occur
regardless of the victim’s existing marriage status.”
(emphasis supplied)
i. Right to free choice and autonomy
144. The issue of forced marriage is intricately linked to child marriage, as both
practices deny individuals, particularly minors, the fundamental right to make
autonomous decisions regarding their lives. T he imposition of forced marriage
reflects the broader systemic issue of coerced relationships that deny the
victims agency and autonomy. This lack of agency is heightened in the context
of child marriage, where children are subjected to societal and familial
pressures that undermine their ability to give informed consent. This mirrors the
definition of forced marriage as articulated in international law, where relational
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autonomy is violated, and the individual's right to freely choose a partner is
disregarded. International law has evolved a rights-based framework to address
myriad issues. Child marriage is an evil against which the international
community has reflected its commitment through the recognition of rights.
These rights are traced below.
145. This encompasses the right to free and informed consent and the right
against gender-based violence.
210
These interconnected rights form the
foundation for ensuring that marriage is a consensual partnership rather than a
coercive arrangement, particularly when addressing the issue of child marriage.
a. Right to free and informed consent
146. Various international instruments
211
emphasize the necessity for parties
entering into marriage to provide free and full consent. CEDAW's General
Recommendations on M arriage and family relations further elucidate that when
men and women marry, they assume important responsibilities. Consequently,
marriage should not be permitted before they attain full maturity and capacity
to act.
212
For women to exercise full, free, and informed consent as outlined in
Article 16(1)(b) of CEDAW,
213
they must possess the cognitive capacity to
comprehend the meaning and responsibilities associated with marriage. This
entails having access to comprehensive information about their potential
210
‘GBV’
211
See Article 16(2) of the Universal Declaration of Human Rights (UDHR) 1948, Article 10(1) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, Article 23(3) of the ICCPR,
Article 1 of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages 1962, Article 16(1)(b) of the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) 1975, Article 17(3) of the American Convention on Human Rights 1969, and Article 33 of
the Arab Charter on Human Rights 2004.
212
UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation
No. 21: Equality in Marriage and Family Relations 1994, para 16.
213
CEDAW, article 16(1)b states ‘The same right freely to choose a spouse and to enter into marriage only
with their free and full consent’.
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spouse, understanding the institution of marriage, and recognizing their rights
to choose if, when, and whom to marry.
147. This principle has been elucidated in different judgments, reinforcing the
right to free and informed consent within the context of marriage. In National
Coalition for Gay and Lesbian Equality v. Minister of Justice
214
the
Constitutional Court of South Africa emphasized that autonomy encompasses
more than mere freedom from state interference; it acknowledges the need for
individuals to choose their partners freely. The court in that case held that:
“117. Autonomy must mean far more than the right
to occupy an envelope of space in which a socially
detached individual can act freely from interference
by the state. What is crucial is the nature of the
activity, not its site. While recognising the unique
worth of each person, the Constitution does not
presuppose that a holder of rights is as an isolated,
lonely and abstract figure possessing a disembodied
and socially disconnected self. It acknowledges that
people live in their bodies, their communities, their
cultures, their places and their times. It is not for the
state to choose or to arrange the choice of partner,
but for the partners to choose themselves”
148. Similarly in Artavia Murillo ET AL v. Costa Rica,
215
the Inter-American
Court of Human Rights addressed the question of whether the State’s
prohibition on the practice of in vitro fertilisation (IVF) constituted an arbitrary
interference with the right to private life. The court affirmed that the right to
private life extends beyond privacy to include personal autonomy and the
freedom to establish relationships. The Court held that:
“The scope of the protection of the right to private life
has been interpreted in broad terms by the
international human rights courts, when indicating
that this goes beyond the right to privacy. The
214
1999 (1) SA 6, CC (South Africa).
215
Inter-Am. Ct. H.R. (Ser. C) No. 257 (American Court of Human Rights).
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protection of private life encompasses a series
of factors associated with the dignity of the
individual, including, for example, the ability to
develop his or her own personality and
aspirations, to determine his or her own identity
and to define his or her own personal
relationships. The concept of private life
encompasses aspects of physical and social
identity, including the right to personal autonomy,
personal development and the right to establish and
develop relationships with other human beings and
with the outside world. The effective exercise of the
right to private life is decisive for the possibility of
exercising personal autonomy on the future course
of relevant events for a person’s quality of life.
Private life includes the way in which individual views
himself and how he decides to project this view
towards others, and is an essential condition for the
free development of the personality.”
(emphasis supplied)
149. These judgments emphasize the critical role of free and informed consent in
marriage, particularly regarding child marriage.
b. Right against gender- based violence
150. Further, the right against GBV is recognised. Article 34 of the CRC provides
a right to protection from sexual exploitation and abuse, defining child marriage
as a form of sexual exploitation.
216
Article 19 prohibits all forms of physical or
mental violence, abuse, or exploitation, with many young brides suffering these
consequences.
217
Child marriage frequently leads to violence against child
wives, and although CEDAW does not specifically label child marriage as
violence against women, it identifies forced marriage as a form of family
violence in General Recommendations 19 on violence against women.
218
The
216
CRC, Article 34.
217
CRC, Article 19.
218
See CEDAW General Recommendation No. 19: Violence against Women, Adopted at the Eleventh
Session of the Committee on the Elimination of Discrimination against Women (1992), Document A/47/38
[Para 11].
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Committee interprets Articles 2(f), 5, and 10(c) together, recognizing that
traditional attitudes regarding women's subordination perpetuate practices
involving violence or coercion, such as forced marriage.
219
151. The UN Declaration on the Elimination of Violence against Women, adopted
by the General Assembly, defines violence as any act of GBV that results in, or
is likely to result in, physical, sexual, or psychological harm or suffering to
women.
220
The Declaration calls on S tates to exercise due diligence to prevent,
investigate and punish acts of violence against women. Article 4 requires
member states to condemn violence against women and not invoke custom,
tradition, or religion to evade their obligations to eliminate such violence.
221
152. The Istanbul Convention is the first international treaty to contain a definition
of gender as a socially constructed category that defines “women” and “men”
according to socially assigned roles, behaviours, activities, and attributes.
222
It
firmly establishes the link between achieving gender equality and the
eradication of violence against women. Based on this premise, it recognizes the
structural nature of violence against women and that it is a manifestation of the
historically unequal power relations between women and men. The Convention
specifically asks S tate parties to ensure that culture, custom, religion, tradition
or so-called ‘honour’ shall not be considered as justification for any acts of
violence. Evidently, the human and fundamental right against GBV has found
firm roots in the international sphere. This affords protection against child
219
Ibid, [Para 24].
220
UN General Assembly, Declaration on the Elimination of Violence against Women, A/RES/48/104, UN
General Assembly (20 December 1991).
221
DEVAW, Article 4.
222
Council of Europe (2014). The Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence.
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marriage, as it is a form of GBV that disproportionately affects girls and women.
It subjects them to early and forced marriages perpetuating power imbalances
and often leading to physical, emotional, and sexual abuse.
ii. Right to education
153. The right to education is violated by the commission of child marriage under
international law. These rights are manifested in the rights of children to –
primary education, information, and sex education.
a. Right to p rimary education
154. The CRC mandates that States ensure primary education is free and
compulsory. Article 28 states that the child has the right to education,
223
while
Article 29 emphasizes that education should develop the child's personality,
talents, and abilities, as well as promote respect for human rights and
fundamental freedoms.
224
155. The CRC’s Guidelines for Periodic Reports require States to outline specific
measures taken to ensure compulsory primary education, including minimum
age for enrolment and compulsory education.
225
The Committee further extends
this obligation to include secondary education, reinforcing the need for
comprehensive educational policies. The Concluding Comments of the
CEDAW Committee has expressed ongoing concern regarding the impact of
223
CRC, Article 28.
224
CRC, Article 29.
225
Concluding observations of the UN Committee on the Rights of the Child (2002- 2023) – extracts
concerning inclusive education and disability, gender and ethnic background and related issues.
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early and forced marriages on school dropout rates among girls and urged
States to adopt all available measures to eliminate child marriage.
226
156. Research from UNESCO highlights that, in many countries, marriage and
schooling are seen as mutually exclusive.
227
In South Asia, particularly in
Bangladesh, India, and Nepal, child brides are four times more likely to be out
of school than their unmarried peers.
228
While the relationship between
education and child marriage is clear, the mechanisms driving this connection
are complex, suggesting that interventions must be multifaceted to address
both issues simultaneously.
b. Right to be informed
157. International obligations also emphasize the importance of awareness and
education regarding the adverse effects of child marriage. Article 12 of the CRC
asserts that children should be provided with information that aids their
understanding of issues affecting them, including the potential consequences
of early marriage.
229
The right to be informed empowers young individuals to
make autonomous choices about their lives, fostering an environment
conducive to resisting harmful practices such as child marriage. Education
plays a critical role in this regard; when girls are aware of their rights and the
detrimental effects of early marriage on their health, education, and economic
prospects, they are better equipped to advocate for themselves and their peers.
226
See Concluding observations of the UN Committee on the Elimination of Discrimination Against Women
(2002- 2010) – extracts concerning inclusive education; Also see CEDAW Committee Concluding
Observations, India (Jan 1990). UN Doc. A/55/38, Para 78.
227
UNESCO (2021). Reimagining our futures together: a new social contract for education, International
Commission on the Futures of Education; See also UNFPA (2012). Marrying Too Young: End Child Marriage,
76 p.
228
Ibid.
229
CRC, Article 12.
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c. Right to sex education
158. Major United Nations conferences of the 1990s, such as the International
Conference on Population and Development
230
held in Cairo in 1994,
emphasized the importance of human rights, gender equality, sexual and
reproductive health, and HIV/AIDS awareness.
231
The ICPD's Programme of
Action affirmed that sexual health is a vital component of overall health, stating
that all individuals should have access to information and services related to
sexual and reproductive health.
232
In subsequent years, documents like the
Yogyakarta Principles
233
and the Bali Global Youth Forum have built upon these
foundations, addressing the rights of marginalized groups, including
adolescents, to access comprehensive sexuality education. In 2012, the UN
Commission on Population and Development reaffirmed these principles -
calling states to provide evidence- based comprehensive education on human
sexuality, sexual and reproductive health, human rights, and gender equality,
enabling youth to engage with their sexuality positively and responsibly.
234
159. In a landmark ruling, the European Court of Human Rights
235
upheld young
people's right to sexuality education in schools. This case involved a refusal by
a primary school to grant a request from a parent seeking to exempt her
daughter, then seven years old, from sex education lessons. The EtCHR opined
230
“ICPD”
231
UN Population Fund (1995). Report of the International Conference on Population and Development,
Cairo, 5- 13 September 1994, A/CONF.171/13/Rev. 1; UN coordinated an International Conference on
Population and Development (ICPD) in Cairo, Egypt. Its resulting Programme of Action is the steering
document for the United Nations Population Fund (UNFPA).
232
Ibid.
233
International Commission of Jurists (2007). Yogyakarta Principles: Principles on the Application of
International Human Rights Law in Relation to Sexual Orientation and Gender Identity. International
Commission of Jurists.
234
See UNESCO (2018). International technical guidance on sexuality education: an evidence- informed
approach.
235
A.R. and L.R. v. Switzerland, application no. 22338/15 (EtCHR).
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that this refusal violated the right to freedom of thought, conscience, and
religion. It also violates Article 2 (the right to life) and Article 8 (the right to
respect for private and family life). The Court recognized that one of the aims
of sex education is to prevent sexual violence and exploitation, threats that
compromise children's physical and mental health.
236
It also stressed that state
education should prepare children for social realities, justifying the inclusion of
sexual education for even very young children in primary education.
iii. Right to development of children
160. A lack of education denies girls their right to personal development as
guaranteed in the CRC which is crucial for them to prepare for adulthood and
effectively contribute to the future well-being of their families and society. The
CRC highlights the significance of personal development, emphasizing that
every child has the inherent right to develop their personality, talents, and
mental and physical abilities to their fullest potential.
237
The right to personal
development is intricately linked to various aspects of a child's well-being,
particularly health. The CRC interrelates with five other articles,
238
which
collectively address eight specific dimensions of child development that require
protection: physical development, mental development, moral development,
social development, cultural development, spiritual development, development
of the personality, and development of talent.
161. Under Article 29(1)(a) of the CRC, States Parties agree that the education
of the child shall be directed toward the development of the child's personality,
236
Ibid.
237
See OHCHR (2013). Realising the Right to Development: Essays in Commemoration of 25 Years of
the United Nations Declaration on the Right to Development.
238
CRC, Articles 18(1), 23(3), 27(1), 29(1)(a), and 32(1).
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talents and mental and physical abilities to their fullest potential.
239
Article
29(1)(d) further emphasizes that education should be oriented toward the
preparation of the child for a responsible life in a free society, in the spirit of
understanding, peace, tolerance, equality of sexes, and friendship among all
peoples.
240
Similarly, Article 13(1) of the International Covenant on Economic,
Social and Cultural Rights
241
stipulates that education shall enable all persons
to participate effectively in a free society.
242
Article 13(2) reinforces this by
asserting that education should be directed to the full development of the
human personality and the sense of its dignity."
243
162. As Professor Nico Schrijver argues, the right to development functions as a
cluster right, encompassing a range of interconnected rights.
244
These include
the right to a decent standard of living, which encompasses the right to food,
water, clothing, and housing; the right to work; the right to education; the right
to life; and the right to freedom of expression and organization. Together, these
rights form a comprehensive 'human right to development,' which is essential
for empowering children, particularly girls, to realize their full potential and
actively participate in their communities. As we shall explore below, these rights
ought to influence our understanding of the law in dealing with child rights in
India.
239
CRC, Article 29(1)(a)
240
CRC, Article 29(1)(d).
241
UN General Assembly (1966). International Covenant on Economic, Social and Cultural Rights, United
Nations, Treaty Series, vol. 993, p. 3.
242
ICESCR, Article 13(1).
243
ICESCR, Article 13(2).
244
Nico Schrijver, Development without Destruction: The UN and Global Resource Management
(Bloomington, Indiana University Press, 2010), p. 221.
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VII. India’s obligation
163. Article 51 of the Indian Constitution emphasizes the importance of
international law and treaty obligations, urging the Indian state to make
concerted efforts to adhere to and respect international legal standards
245
. This
provision establishes a foundation for integrating international human rights law
into domestic legal frameworks, particularly concerning the protection of
vulnerable populations such as children.
164. This Court has consistently affirmed India’ s obligation with regard
international conventions and norms when interpreting domestic laws.
246
In
Vishaka v. State of Rajasthan,
247
this Court formulated basic principles and
guidelines based on i nternational instruments aimed at preventing sexual
harassment at the workplace.
248
In Vellore Citizens Welfare Forum v. Union
of India
249
this Court recognized aspects related to sustainable development
as part of customary international law.
165. In Apparel Export Promotion Council v. AK Chopra
250
this Court had the
occasion to opine on the judiciary's obligation to give due regard to international
conventions, particularly when there is no inconsistency between these
245
The Constitution of India, Article 51; The article deals with Promotion of international peace and security
- The State shall endeavour to--(a) promote international peace and security; (b) maintain just and honourable
relations between nations;(c) foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; and (d) encourage settlement of international disputes by arbitration.
246
See Prem Shankar Shukla v. Delhi Admn. (1980) 3 SCC 526; Mackinnon Mackenzie and Co. Ltd. v.
Audrey D' Costa (1987) 2 SCC 469; Sheela Barse v. Secy., Children's Aid Society [(1987) 3 SCC 50, 51]
SCC at p. 54; Vishaka v. State of Rajasthan (1997) 6 SCC 241; People's Union for Civil Liberties v. Union of
India (1997) 3 SCC 433 and D.K. Basu v. State of W.B. (1997) 1 SCC 416, 438.
247
(1997) AIR 3011.
248
These guidelines were informed by several international instruments, including the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), the Universal Declaration of Human
Rights, and the International Labour Organization (ILO) Convention No. 111 on discrimination in employment.
249
(1996) INSC 952; The Court incorporated principles like the “precautionary principle” and the “polluter pays
principle” into domestic law.
250
(1999) 1 SCC 759.
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conventions and domestic laws, or when domestic law is silent on a particular
issue.
“This Court has in numerous cases emphasized that
while discussing constitutional requirements, court
and counsel must never forget the core principle
embodied in the international conventions and
instruments and as far as possible, give effect to the
principles contained in those international
instruments. The courts are under an obligation to
give due regard to international conventions and
norms for construing domestic laws, more so, when
there is no inconsistency between them and there is
a void in domestic law.”
166. In M/s Entertainment Network (India) Ltd. v. M/s Super Cassette
Industries Ltd.
251
this Court expressed its willingness to adopt principle of
international conventions to which India is not a signatory where they were
compatible with Indian law. This approach was further exemplified in Ravindra
Kumar Dhariwal v. Union of India
252
where this Court maintained that even
when India is not a signatory to certain international treaties, the principles
enshrined within them could still inform the interpretation of domestic legislation.
167. The overarching theme emerging from these judgments is that India has a
dual obligation: to respect its commitments under international treaties and to
interpret domestic laws in a manner consistent with international human rights
standards. This is particularly relevant concerning child marriage, as India has
ratified several international instruments that set the minimum age for marriage
251
This position has been reiterated by various other decisions of this Court. See, for instance, National Legal
Services Authority v. Union of India, (2014) 5 SCC 438.
252
Ravinder Kumar Dhariwal v Union of India 2021 INSC 916.
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at eighteen, including CEDAW
253
and the CRC
254
. Moreover, even if India is not
a party to certain regional conventions that address child marriage directly, the
principles of non- discrimination, the best interests of the child, and the right to
free and informed consent should guide national legislation and policy in this
area. These fundamental principles are embedded in various international
human rights instruments and form the backbone of child protection efforts
globally.
168. As Prof. Rangita De Silva- De Alwis argues in her report, Child Marriage and
the Law – Legislative Reform Initiative Paper Series
255
child marriage must be
treated as a human rights issue to highlight its seriousness and prompt state
parties to amend their laws and policies accordingly.
256
She also emphasises
that framing child marriage within international treaties compels S tates to be
accountable for their inaction on this issue. If a treaty establishes a monitoring
body or a mechanism to address complaints, any non- compliant state party may
face public rulings against it.
257
We believe that such public scrutiny can
pressure the state to implement effective measures that protect children from
the harmful effects of early marriage.
VIII. Constitutional guarantees against child marriage
169. The right to free choice and autonomy, education and development of the
child with all their offshoots are firmly recognised in this Court’s jurisprudence
253
India ratified the Convention on the Elimination of All Forms of Discrimination against Women on July 9,
1993.
254
India ratified the Convention on the Rights of the Child in 1992.
255
Rangita De Silva De- Alwis, Child Marriage and the Law – Legislative Reform Initiative Paper Series (New
York: Division of Policy and Planning, UNICEF, 2007), para 28.
256
Ibid, 6.
257
Ibid; See also Douglas, ‘The Significance of International Law’, 89- 90.
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and the myriad legislations in India which we have traced above. The evolution
and progress of child rights in the international arena have simultaneously been
evolved and recognised in India.
170. The material deprivation of health, education, employment and life
opportunities wreaked by child marriage is an affront to cherished constitutional
principles of equality, liberty and free expression. Children who are thrown into
forced marriages are deprived of their right to development of the child. Three
quarters of a century after the commencement of the Constitution, child
marriage remains a present and continuous threat to our society, social
progress and individual liberty. The Constitution does not countenance such an
affront. We shall trace the gamut of rights accruing against child marriage from
the Constitution.
171. The right to life and liberty enshrined in Article 21 of the Constitution
258
is
violated by the commission of child marriage. All children married as minors are
denied their right to choice and autonomy, right to education, right to sexuality
and the right to development of the child. Girls who are married as children are
denied their right to health. First, we shall analyze the right to choice, autonomy
and sexuality, then we shall explore the right to health. We shall thereafter trace
the right to childhood which includes the right to education and development.
258
Article 21, The Constitution of India.
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A. Right to self-determination: choice, autonomy and sexuality of children
172. Life’s meaning for any person is animated by their dignity, the ability to make
free choices, the autonomy to have them translated into reality and to plan the
peaks and troughs of life in good health. The journey a person travels from birth
to death is made meaningful and enjoyable by the realization of these rights
which are guaranteed under Article 21.
173. Child marriage deprives children of their agency, autonomy and right to fully
develop and enjoy their childhood. The right to free choice and autonomy in
marriage encompasses three fundamental rights: the right to free and informed
consent, the right against gender based violence, and the right to sexual
autonomy. These interconnected rights form the foundation for ensuring that
marriage is a consensual partnership rather than a coercive arrangement,
particularly when addressing the issue of child marriage.
174. Girls who are married off early are not only denied their childhood but are
also forced into social isolation on account of being cut off from their natal
family, friends and other support systems. They are left to the mercies of their
marital home and in- laws and denied their innocence which is native to a
meaningful childhood experience. Boys who are married early are forced to take
up more responsibilities and are pressured to play the role of a provider to the
family, earlier in life. Patriarchy requires members of a marital union to play
specific roles. It forces men to play the public role in a marriage and fend for the
family by being responsible for its economic and occupational development.
Both sexes are adversely affected by forced and early marriage.
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175. In India, marriage has traditionally been a religious ceremony organised by
the families of the bride and groom. The union is looked at as an integration of
the two families and the object of facilitating an organically compatible
relationship between the bride and the groom is inconsequential. The mandate
to recreate a patriarchal family structure is tied to social norms and
expectations. One of the primary manifestations of this is the control over
sexuality. While social norms rooted in a patriarchal mindset seek to control the
sexuality of all persons, its nexus with child marriage is undeniable.
176. Patriarchy offends the most basic rights of people by creating a hierarchy-
based order of subjugation and static power distribution in society. When an
institution of patriarchy operates, it never denies rights in a unidimensional way.
The frontal assault of patriarchal institutions is in, all at once, denying any
deviance and valuing some over others. In the instance of child marriage, the
right to sexuality of a person is systematically dismantled. The assault starts
with the sexualisation of the child at a tender age. As we have stated above,
marriage is an institution with legal standing in which sexual conduct is
legitimised and promoted by the State and society. Marrying in childhood has
the effect of objectifying the child. The practice of child marriage imposes
mature burdens on children who are not physically or mentally prepared to
comprehend the significance of marriage. When women are forced into
marriages to protect their ‘chastity’ and ‘virginity’ she is denied her right to
sexuality, bodily autonomy and the freedom to make choices for herself as she
sees fit.
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177. The minor is then boxed with the expectation of compulsory heterosexuality.
The ability of a person to experience sexual desire organically and to navigate
their choice in intimacy is effaced at the altar of tradition and social norm. At an
age which must be instructed by the ability to make mistakes and learn from life
experiences, children are stunted and forcibly fit into boxes. The multi-
dimensional assault of child marriage is therefore not only oppressive to
heterosexual girls and boys but also to all gender and sexual minorities.
Choices in matters of sexuality are integral to human desire. Our Constitution
recognises the right a person has over all aspects of their sexuality.
259
The
control of the sexuality of a girl child from orthodox moral virtues restricts her
ability to experience life in its fullest dimension. Sexuality is not only the
orientation a person may have in matters of romance and intimacy but also the
ability to navigate the desires of a person regardless of their choice of partner
or the option not to have a partner. Men and women alike are victimised by
compulsory heterosexuality. In child marriage, their limited agency within
heteropatriarchy is also taken away in infancy.
178. Upon marriage, a girl is expected to bear children and prove her fertility.
Decisions of reproduction are withdrawn from the girl and placed in the hands
of the family. The right to choice and autonomy of a woman who is married as
a child is violated by the system of child marriage. When minor girls are forced
to make conjugal relations, they experience post-traumatic stress and
depression emanating from sexual abuse by an elder partner.
260
Child marriage
259
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; Joseph Shine v. Union of India, (2019) 3 SCC 39.
260
NCPCR (2017). A Statistical Analysis of Child Marriage in India, Based on Census, 2011. Young Lives
and National Commission for Protection of Child Rights.
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leads to irreversible physical and psychological damage in girls. Her choice is
eviscerated in matters of selection of partner, time of marriage, reproductive
freedom and sexuality. Article 21 protects these rights.
261
179. In X v. Principal Secretary,
262
a three- Judge Bench of this Court speaking
through one of us (DY Chandrachud, CJ) held that the right to choice and
autonomy includes the right to reproductive freedom. Elucidating on the
contours of this right, the Court held as follows:
“101. The ambit of reproductive rights is not
restricted to the right of women to have or not have
children. It also includes the constellation of
freedoms and entitlements that enable a woman to
decide freely on all matters relating to her sexual and
reproductive health. Reproductive rights include the
right to access education and information about
contraception and sexual health, the right to decide
whether and what type of contraceptives to use, the
right to choose whether and when to have children,
the right to access safe and legal abortions, and the
right to reproductive healthcare. Women must also
have the autonomy to make decisions concerning
these rights, free from coercion or violence.”
180. This Court has also articulated the right to self-determination in National
Legal Services Authority v. Union of India.
263
Choice and autonomy are the
vocabulary in which self-determination is exercised. This court held that the right
to self-determination which is protected under Article 21 of the Constitution
includes the right of a person to determine their gender. The meaningful realisation
of this right assumes that the underlying conditions in the society are feasible for
its free exercise. This Court in NALSA (supra) has held that the right to self-
261
Shafin Jahan v. Ashokan KM, (2018) 10 SCC 1; X v. Principal Secretary, (2023) 9 SCC 433.
262
(2023) 9 SCC 433.
263
(2014) 5 SCC 438.
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determination is an integral part of personal autonomy and self-expression and
falls within the realm of personal liberty guaranteed under Article 21 of the
Constitution of India.
181. A nine- Judge Bench of this Court in KS Puttaswamy (Privacy- 9J) v. Union
of India,
264
held that the fundamental right to privacy connotes the right to
spatial control, decisional autonomy, and information control. This Court held
that privacy is an essential aspect of dignity and protects the ability to make
choices for oneself. This Court has conclusively held that personal aspects of
life, including family, marriage, procreation and sexual orientation are intrinsic
to the dignity of an individual and enjoys protection under Article 21. From this
emerges the ability of a person to retain autonomy of their body and mind.
182. The Court held that
liberty enables the individual to have a choice of
preferences on various facets of life including what and how one will eat, the way
one will dress, the faith one will espouse and a myriad other matters on which
autonomy and self-determination require a choice to be made within the privacy of
the mind.
In Anuj Garg v. Hotel Association of India,
265
a three- Judge Bench
of this court held that the right to self-determination is an integral offshoot of
gender justice discourse. Justice SB Sinha speaking for the Court held that the
law and its enforcement strategies must reflect the right of women to freedom.
183. Despite the enactment of the PCMA, the abysmal number of prosecutions
and the continued existence of the practice violates the essence of this Court’s
holding. These rights and values are equally iterated in international law to
which India owes an obligation.
264
(2017) 10 SCC 1 at 298.
265
(2008) 3 SCC 1.
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B. Right to health
184. The right to reproductive freedom which we have traced above is part of the
constellation of rights in which the right to the health of a person also finds its
place. Article 21 of the Constitution guarantees the right to life and personal
liberty. Neither of these elements could be completely fulfilled without the ability
of individuals to lead a healthy life. Our Constitution recognises the right to
health as an inalienable aspect of the right to life and personal liberty under
Article 21.
266
Women who are married young are forced to bear children earlier
in life. They are likely to have their first childbirth before the age of eighteen and
are likely to conceive more than once within twenty-four months. The health
penalty imposed on women in child marriages is writ large in the complications
arising from adolescent pregnancies. Teenage pregnancy leads to health
complications such as fistula, pregnancy complications and death during
childbirth. Early childbirth also leads to the deterioration of maternal mortality
and morbidity.
185. The maternal morbidity is associated with adolescent fertility – typical to
child marriage. It is marked by common negative health outcomes such as
anaemia, high blood pressure, toxaemia, delayed or obstructed labour,
complications in pregnancy and weight loss during lactation.
267
The adverse
health effects of early marriage and pregnancy have dented the nutritional
status of adolescent girls in India. These ill health outcomes haunt the woman
266
Pt. Parmanand Katara v. Union of India, (1989) 4 SCC 286; Paschim Banga Khet Majoor Samiti v. State
of West Bengal, (1996) 4 SCC 37.
267
Jaya Sagade. Child Marriage in India: Socio- legal and human Rights Dimensions. Oxford University Press,
2
nd
ed. (2012) 17.
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throughout her life cause severe impediments in navigating the daily trifles and
occasions of life.
186. Studies have shown that women married as children are more likely to be
sterilized earlier in life. The sterilization is associated with families getting the
desired number of children earlier in the marital life of the couple. Sterilization
of women in child marriage is indicative of loss of control of a woman over her
own reproductive choices. This also leads to more unprotected sex which may
expose women to risks of contracting sexually transmitted diseases like HIV.
187. In Independent Thought v. Union of India,
268
this Court struck down the
marital exception to rape in Section 375 IPC as it relates to underage wives.
The Court had the opportunity to delve into the effects of child marriage and its
interposition with the right to health. Justice Deepak Gupta in his opinion has
traced the right to health in the context of child marriage as follows:
“179. There can be no dispute that every citizen
of this country has the right to get good
healthcare. Every citizen can expect that the
State shall make best endeavours for ensuring
that the health of the citizen is not adversely
affected. By now it is well settled by a catena of
judgments of this Court that the “right to life”
envisaged in Article 21 of the Constitution of India
is not merely a right to live an animal existence.
This Court has repeatedly held that right to
life means a right to live with human dignity.
Life should be meaningful and worth living.
Life has many shades. Good health is the
raison d'être of a good life. Without good
health there cannot be a good life. In the case
of a minor girl child good health would mean
her right to develop as a healthy woman. This
not only requires good physical health but
also good mental health. The girl child must
be encouraged to bloom into a healthy
268
(2017) 10 SCC 800.
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woman. The girl child must not be deprived of
her right of choice. ....”
(emphasis supplied)
188. Child marriage inflicts tangible and lifelong physical and mental injuries to
its members. The right to health is made illusory by all accounts within such an
institution. The effect of child marriage denies women their health which is vital
to lead a dignified life.
C. Right to childhood: education and development
189. Childhood represents the best of what human life has to offer. A good
childhood is marked by limitless imagination and the ability to dream big. The
audacity to envision futures filled with success, happiness, divergence and
enjoyment occurs naturally to all – but is manifested most authentically in
childhood. The right to childhood is the right to be able to develop the
experiences of childhood into tangible life skills and intellectual pursuits. It is
marked by the expectation of the child that they are not on their own but are
entitled to the supportive network of their parents, siblings, family, friends and
the entire society. As the saying goes – it takes a village to raise a child. The
foremost method by which society commits to developing a child is by imparting
education. Institutions of learning are centres for society to channel knowledge
and experience and make them available to children. Education allows its
recipients to benefit from the best of human advances and claim a degree of
ownership in its fruits.
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190. Education allows a person to develop and articulate their thoughts and learn
the language of global engagement. It is a call for greater emancipation of the
mind. Education breathes life into intellect, dimension into perspective and
openness in minds. It opens doors to employment opportunities and enables
people to stand on their own feet in professional and personal pursuits of life.
The detrimental effect of not being educated affects girls most starkly since they
are already vulnerable to agents of oppression on account of their gender.
Marriage for most women in patriarchal societies is an announcement of
educational conclusion.
191. It is uncommon for women to continue education after marriage without the
express approval and wish of the in- laws and husband. The imposition of a
marital family on the education of women may be an experience common to all
women. But when the woman is married as a child, her education is arrested in
place during a pivotal period of brain development. The minority of a woman’s
age at the time of her marriage has a heightened impact on her education. The
right to primary education is a fundamental right expressly enshrined under
Article 21-A.
192. However, the right to education under Article 21 holds broader significance.
The right to information about routine ways to make life meaningful and be
educated on the adverse effects of child marriage falls under Article 21.
Children are entitled to be aware of their rights and the ill effects that marriage
unleashes on them. The entitlement of the child flows from the right to
education. Education cannot be restricted to pedantic and bookish classroom
learning. The State certainly has an obligation to provide free and compulsory
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education to all between the ages of six and fourteen. The mandatory minimum
prescribed by Article 21- A, however, cannot restrict the right of children to be
informed of significant and life altering dangers.
193. In a litany of judgments, this Court has firmly grounded the right to education
into our constitutional jurisprudence.
269
While dealing with a PIL against
physically and mentally challenged children being kept in jails, this Court in
Sheela Barse II v. Union of India
270
has recognised that it is the duty of the
State to ensure the full development of a child’s personality. The articulation of
the right to development of a child puts a positive obligation on the State to
create conditions feasible and resources necessary for the full development of
children. In addition to the rights tracible to Part III of the Constitution, the
development of child is also a part of the Directive Principles of State Policy .
271
Article 39 stipulates certain principles of policy to be followed by the State.
Clause (f) of Article 39 reads as follows:
“(f) that children are given opportunities and facilities
to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth
are protected against exploitation and against moral
and material abandonment.”
194. The duty of the State corresponds to the right to development of a child
which is tracible to Articles 14, 19(1)(a), 21 and 15. The right comprehends the
ability of a child to exercise free speech, express authenticity and live a life of
liberty and dignity. It falls on the State to ensure that children are informed of
269
Unni Krishnan JP v. State of Andhra Pradesh, (1993) 1 SCC 645; Society For Unaided Private Schools
Of Rajasthan v. Union Of India (2012) 6 SCC 1; Avinash Mehrotra v. Union Of India, 2009 INSC 498; Bachpan
Bachao Andolan v. Union of India, (2011) 5 SCC 1; Maharishi Mahesh Yogi Vedic Vishwavidyalaya v. State
of M.P., (2013) 15 SCC 677; Sampurna Behura v. Union of India, (2018) 4 SCC 433.
270
(1983) AIR 378.
271
‘DPSP’
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ways in which their life is likely to interact with society and the cautions to bear
in the journey they chart out in life so that they may enjoy and exercise their
rights under Articles 14, 15, 19(1)(a) and 21.
195. Child marriage is one such threat. Sexual conduct within this relation, or for
that matter outside marriage, is another aspect of education and information.
Sex education becomes imperative for children to process experiences which
they are to inevitably encounter. In Just Rights for Children Alliance v. S
Harish,
272
one of us (J B Pardiwala, J) has lucidly reflected on the importance
of sex education. The Court has opined that:
“238. In India, the misconceptions about sex education
are widespread and contribute to its limited
implementation and effectiveness. Many people,
including parents and educators, hold conservative
views that discussing sex is inappropriate, immoral, or
embarrassing. This societal stigma creates a
reluctance to talk openly about sexual health, leading
to a significant knowledge gap among adolescents.
239. One prevalent misconception is that sex
education encourages promiscuity and irresponsible
behaviour among youth. Critics often argue that
providing information about sexual health and
contraception will lead to increased sexual activity
among teenagers. However, research has shown that
comprehensive sex education actually delays the onset
of sexual activity and promotes safer practices among
those who are sexually active. [Padminin Iyer & Peter
Aggleton, Seventy years of sex education - A Critical
Review, 74(1) HEALTH EDUC. J. 3 (2015).]
240. Another common belief is that sex education is a
Western concept that does not align with traditional
Indian values. This view has led to resistance from
various state governments, resulting in bans on sex
education in schools in some states. This type of
opposition hinders the implementation of
comprehensive and effective sexual health programs,
leaving many adolescents without accurate
272
2024 INSC 716.
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information. This is what causes teenagers and young
adults to turn to the internet, where they have access
to unmonitored and unfiltered information, which is
often misleading and can plant the seed for unhealthy
sexual behaviours.
241. Additionally, there is a misconception that sex
education only covers biological aspects of
reproduction. Effective sex education encompasses a
wide range of topics, including consent, healthy
relationships, gender equality, and respect for diversity.
Addressing these topics is crucial for reducing sexual
violence and promoting gender equity.”
196. In the context of child marriage, we have demonstrated the heightened risk
of health complications to arise out of adolescent sex and childbearing. While
girls married as children have to bear the consequences of this, they are not
the only party to the sexual relation which causes negative health outcomes.
Boys married at young age equally feel pressures associated with sexual
performance. Often, the only resource available to them is their peer group. The
performance of sexual activity is an avenue for men to exhibit their masculinity.
Because of their tender mind and patriarchal notions of masculinity and sexual
dominance, they are likely to fall into egregious misinformation by their peers
and commit violence on their child brides. The issue of approaching boys in
child marriage with care, compassion and affection is unfortunately lost in some
mainstream discourse on child marriage. While girls are undoubtedly affected
by child marriage disproportionately, we ought to also account for the tender
minds of men who are forced into marriages as children.
197. The right to childhood belongs to all sexes. Education- primary, sexual and
life enhancing – is integral to the right to childhood. Realisation of this right is
crucial in dealing with the evils of child marriage. Abuses of patriarchy are learnt
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behaviours. What is learnt can be unlearned or better yet, disabused early on.
Education in all aspects allows for the debunking of harmful life choices and
conducts which children may adopt in the absence of better guidance.
D. Reiterating the S tates’ obligations towards combatting c hild marriage
198. Under IHRL, the State has a concrete, enforceable obligation to prevent and
eliminate child marriage by ensuring that laws, policies, and social services
align with international standards such as those in the CRC and the CEDAW.
The state must establish and enforce a legal framework that explicitly prohibits
child marriage, accompanied by robust mechanisms for implementation and
redress.
199. States also have an obligation to monitor and enforce compliance with these
laws and to work closely with civil society organizations to implement effective
interventions. The S tate's role is not limited to merely punishing offenders but
extends to creating an enabling environment where children can exercise their
rights freely. This includes the responsibility to not only to legislate against child
marriage but also to address the underlying socio- economic factors—poverty,
lack of education, and gender discrimination—that perpetuate this practice.
200. The Directive Principles of State Policy in Part IV of the Constitution lay
down the fundamental principles in the governance of the country and press
upon the S tate to apply them while making laws. Article 38(2) of the
Constitution
273
requires the state to promote the welfare of people and eliminate
inequalities in opportunities: It states that:
273
Article 38(2), the Constitution of India 1950.
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“38. State to secure a social order for the promotion
of welfare of the people –
…
(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of
people residing in different areas or engaged in
different vocations.”
201. This Article mandates the State to actively reduce inequalities and promote
welfare, which is essential in addressing child marriage—a practice that
disproportionately affects children from economically and socially
disadvantaged backgrounds. By targeting inequalities in income, status, and
opportunities, Article 38(2) supports creating conditions where vulnerable
children have better access to education, healthcare, and social support. This,
in turn, reduces the pressures that often lead to early marriage, such as
economic dependency and limited future prospects, and enables children to
pursue a life free from the constraints imposed by early marital commitments.
202. This Court has, in several landmark judgments, reinforced the State’s
positive obligation to protect children’s rights. In Sheela Barse II (supra) this
court dealt with abandoned or destitute children lodged in various jails across
the country for ‘safe custody.’ The Court noted that the National Policy for the
Welfare of Children contained the following preamble:
“The nation’s children are a supremely important asset.
Their nurture and solicitude are our responsibility.
Children’s programmes should find a prominent
part in our national plans for the development of
human resources, so that our children grow up to
become robust citizens, physically fit, mentally
alert and morally healthy, endowed with the skill
and motivations needed by society. Equal
opportunities for development of all children during the
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period of growth should be our aim, for this would serve
our large purpose of reducing inequality and ensuring
social justice.”
(emphasis supplied)
203. This Court observed that if a child is a “national asset” as per the National
Policy, the State bears the duty to nurture and ensure their full development,
underscoring the expectation that children not be subjected to custodial
detention. Here, the principles of care and protection are directly relevant to
child marriage, as the practice obstructs the full and healthy development of
minors by imposing on them responsibilities and roles they are neither
physically nor emotionally prepared to undertake. Such an arrangement
undermines their potential and violates their rights to education, health, and
personal development, reinforcing cycles of poverty and inequality.
204. In this context, the principle of parens patriae—where the State assumes a
protective role akin to that of a guardian—is particularly relevant. The State’s
intervention in preventing child marriage aligns with its duty to act in the best
interest of children, ensuring their safety, development, and freedom from
practices that harm their physical, emotional, and educational prospects. This
principle has been repeatedly upheld by the judiciary as essential in upholding
child rights and creating a supportive environment that upholds their well -being
and growth into empowered, healthy citizens.
205. Similarly, in Society for Unaided Private Schools v. Union of India
274
the
Court addressed the constitutionality of Section 12 of the Right of Children to
Free and Compulsory Education Act 2009. This provision, which mandates a
274
(2012) 6 SCC 1.
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25% reservation in schools for children from disadvantaged backgrounds, was
challenged on the grounds that it violated Articles 19(1)(g) and 30 of those who
had established schools in the private sector. The Court upheld the
constitutionality of this provision, finding the following:
“222. The provisions referred to above and other
provisions of international conventions indicate that the
rights have been guaranteed to the children and those
rights carry corresponding State obligations to respect,
protect and fulfil the realisation of children's rights. The
obligation to protect implies the horizontal right
which casts an obligation on the State to see that it
is not violated by non- State actors. For non-State
actors to respect children's rights casts a negative
duty of non- violation to protect children's rights
and a positive duty on them to prevent the violation
of children's rights by others, and also to fulfill
children's rights and take measures for
progressive improvement. In other words, in the
spheres of non- State activity there shall be no violation
of children's rights.”
…
224. The primary responsibility for children's rights,
therefore, lies with the State and the State has to
respect, protect and fulfil children's rights and has also
got a duty to regulate the private institutions that care
for children, to protect children from violence or abuse,
to protect children from economic exploitation,
hazardous work and to ensure human treatment of
children. Non- State actors exercising the State
functions like establishing and running private
educational institutions are also expected to respect
and protect the rights of the child, but they are, not
expected to surrender their rights constitutionally
guaranteed.”
(emphasis supplied)
206. These judgments affirm that the State must regulate private as well as non-
State actors in ensuring children’s welfare and that the State holds primary
responsibility for protecting children’s rights. Applied to child marriage, these
principles reiterate that the State must enact and enforce laws that prohibit child
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marriage while ensuring that social, educational, and economic protections are
in place to prevent the practice.
IX. Way forward
207. In light of the foregoing analyses, we seek to formulate specific guidelines
for achieving the elimination of child marriage while bearing in mind the delicate
socio-economic interplay. The Union submits that the PCMA focuses on two
key pillars: (a) raising awareness and (b) prosecution. Despite progress in
awareness campaigns, there is still a pressing need to enhance accountability
mechanisms, ensure mandatory reporting, and rehabilitate minors affected by
child marriages. Further attention is required to make the legal framework more
effective by addressing loopholes and ensuring swift action against offenders,
particularly in areas with high child marriage prevalence.
208. Addressing child marriage requires an intersectional approach that
acknowledges the overlapping vulnerabilities experienced by children,
especially girls from marginalized communities. Intersectionality involves
considering factors like gender, caste, socioeconomic status, and geography,
which often increase the risks of early marriage. Preventive strategies should
therefore be tailored to the unique needs of various communities and focus on
addressing the root causes of child marriage, such as poverty, gender
inequality, lack of education, and entrenched cultural practices.
209. The PCMA as a social legislation will only succeed through the collective
efforts of all stakeholders to address the issue within a broader social
framework which emphasises the need for multi-sectoral coordination. This
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necessitates the enhancement of reporting mechanisms, expansion of public
awareness campaigns, and investment in the training and capacity-building of
law enforcement officers and related actors. It is also crucial to regularly monitor
the implementation of the Act, conduct evaluations to identify gaps, and
establish feedback mechanisms to continually refine and improve responses to
child marriage. As we issue these directions, we emphasize the need for more
comprehensive approaches and community-driven strategies to ensure the
complete eradication of child marriages.
210. We frame the following guidelines for the effective and useful
implementation of the PCMA. The orientation of these guidelines is to prioritise
prevention before protection and protection before penalisation. We are
cognizant of the impact that criminalisation has on families and communities.
To ensure effective use of penal provisions in the PCMA, it is imperative that
there is widespread awareness and education about child marriage and the
legal consequences of its commission. We therefore direct that the following
guidelines be interpreted to expand effective implementation of the preventive
measures under PCMA analysed in Part V(A)(iii) of this judgment.
211. We must not be understood to discourage prosecution of those who commit
illegal acts. However, the aim of the law enforcement machinery must not be
solely focused on increasing prosecutions without making the best efforts to
prevent and prohibit child marriage. The focus on penalisation reflects a harms-
based approach which waits for a harm to occur before taking any steps. This
approach has proven to be ineffective at bringing about social change. We
therefore direct as follows:
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A. Legal Enforcement
1. Appointment and accountability of CMPO
1.1. State Governments and Union Territories (UTs) must appoint officers solely
responsible for discharging the functions of CMPO at the district level. These
officers should not be burdened with additional duties that could impede their
focus on preventing child marriage;
1.2. If a CMPO believes that they lack the necessary resources to safely and
comprehensively fulfil their functions, they must submit a request to the
relevant State Ministry of Women and Child Development. The Ministry shall
conduct an assessment and address the resource needs within three months
of the date on which the request was made;
1.3. To enable personal accountability and ensure immediate preventive measures
are taken against any planned solemnization of child marriages - each State
and UT is directed to upload quarterly reports from CMPOs on their official
websites. These reports should detail the steps taken to prevent child
marriages and the outcomes of investigations;
1.4. The Ministry of Women and Child Development and Ministry of Home in each
State/UT shall conduct quarterly performance reviews of CMPOs and law
enforcement agencies to assess:
1.4.1. The effectiveness of child marriage prevention initiatives;
1.4.2. Response times and outcomes of reported case;
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1.4.3. The level of cooperation and communication between CMPOs and
local law enforcement agencies;
1.4.4. The engagement with communities and stakeholders in prevention
efforts;
1.4.5. The status of CMPOs regarding deployment to additional duties,
including the reasons for such assignments, to ensure that their primary
focus on child marriage prevention is not compromised; and
1.4.6. Recommendations for improvements based on the assessments,
including identifying areas requiring additional support or resources.
1.5. The Ministry of Women and Child Development is directed to execute
mandatory training refreshers for CMPOs every six months. These refreshers
will ensure that all personnel are updated on:
1.5.1. Legal changes relevant to child marriage prevention;
1.5.2. Best practices and effective strategies for combating child marriage;
1.5.3. Community engagement techniques to foster collaboration with local
stakeholders;
1.5.4. Advocacy skills to effectively promote child rights and raise
awareness about the negative impacts of child marriage;
1.5.5. Cultural sensitivity training to address the social factors contributing
to child marriage, ensuring a nuanced understanding of local contexts and
practices; and
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1.5.6. Evaluation and reporting mechanisms to assess the effectiveness of
their initiatives and adjust strategies accordingly.
2. District-Level Responsibility for Prevention of Child Marriages
2.1. In addition to the mandate of the CMPO under Section 16(3)(a) – the Collectors
and Superintendents of Police in each district across India shall also be
responsible for actively preventing child marriages within their districts. They
shall have the authority and responsibility to prosecute all individuals who
facilitate or solemnize child marriages, including those who knowingly assist,
promote, or bless such marriages, even if reported in public events or media;
2.2. The CMPO, the Collectors and Superintendents of Police in each district shall
inform the State Government about any impediments they encounter in the
discharge of their functions, including but not limited to, social boycotts; and
2.3. Specific emphasis must be placed on preventing mass marriages, often
conducted in public, where the participation of government or law enforcement
officials could inadvertently lend legitimacy to child marriage ceremonies. Any
failure by district authorities to act in accordance with this mandate will warrant
immediate administrative action and disciplinary proceedings against the
responsible officials.
3. Establishment of a Specialized Police Unit
3.1. Recognizing the sensitivity and unique aspects of child marriage cases, a
specialized police unit is deemed essential. The State Ministries of Home
Affairs shall consider the viability of integrating the Special Juvenile Police Unit
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into the child marriage prevention framework. The SJPU, already trained in
handling juvenile and sensitive cases, shall be deployed to manage cases of
child marriage;
3.2. The Ministry should evaluate the effectiveness of this integration and provide
necessary resources and support to the SJPU for optimal performance in
addressing child marriage issues;
3.3. The SJPU, supported by trained personnel and resources, will ensure that child
marriage cases are handled with appropriate sensitivity and urgency. The unit
shall work in coordination with CMPOs and district authorities to ensure swift
preventive action and enforce legal accountability; and
3.4. The Ministry of Women and Child Development is directed to consider the
viability and prescribe a format for the SJPUs to biannually report the following:
3.4.1. The outcomes of legal actions taken against perpetrators of child
marriage, including any convictions or pending cases;
3.4.2. The number of awareness programs conducted and the community
engagement efforts made to prevent child marriages;
3.4.3. The status of collaboration with local law enforcement and child
protection agencies in addressing child marriage; and
3.4.4. Any challenges faced in the reporting period and recommendations
for improving child marriage prevention efforts.
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4. Establishment of a Special Child Marriage Prohibition Unit
4.1. The State Governments and UTs shall constitute a State Special Child
Marriage Prohibition Unit and where there are more than one CMPOs in any
district, a District level Special Child Marriage Prohibition Unit;
4.2. The Unit shall comprise of all the CMPOs of the State or the District, as the
case may be, and shall include five social workers having experience of
working against child marriage or on child rights. At least two of such social
workers shall be women. All the CMPOs of the Unit shall be provided special
training on dealing with child marriages;
4.3. The Units shall tailor courses and resources with the help of professionals
dealing with the mental health concerns of the CMPOs. The Unit shall also
provide forums for CMPOs to raise any difficulties or grievances they encounter
in discharge of their functions, including but not limited to, any difficulty relating
to social ostracization for preventing child marriages; and
4.4. The Unit shall act as a forum of sharing best practices, inviting trained
professionals to dispense knowledge and collectivise and redress grievances.
B. Judicial Measures
1. Empowering Magistrates to Take Suo Moto Action and Issue Preventive
Injunctions
1.1. All Magistrates vested with authority under Section 13 of the Prohibition of
Child Marriage Act, 2006, are directed to take proactive measures, including
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issuing suo motu injunctions to prevent the solemnization of child
marriages; and
1.2. Magistrates are encouraged to particularly focus on "auspicious days"
known for mass weddings, when the occurrence of child marriages is
notably high. Upon receiving credible information or even upon suspicion,
Magistrates should use their judicial powers to halt such marriages and
ensure child protection.
2. Exploration of Special Fast-Track Courts for Child Marriage Cases
2.1. The Union Government, in coordination with State Governments, is directed
to assess the feasibility of establishing special fast-track courts exclusively
to handle cases under the PCMA. These courts will expedite case
proceedings, thereby preventing prolonged delays that often lead to
additional harm for the affected children; and
2.2. A status report on the establishment, resource allocation, and potential
effectiveness of these fast-track courts shall be submitted to this Court
within a year from now onwards.
3. Mandatory Action Against Neglectful Public Servants
3.1. It is directed that strict disciplinary and legal action be taken against any
public servant found to be in deliberate neglect of duty concerning child
marriage cases within their jurisdiction. As stipulated under Section 199(C)
of the Bharatiya Nagarik Suraksha Sanhita (BNS), 2023, public officials who
fail to act in child marriage cases, particularly those with knowledge of
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imminent marriages, shall be subject to stringent punishment. This direction
is aimed at reinforcing accountability among public officials and ensuring
that child marriage cases receive immediate and appropriate action at all
administrative and enforcement levels.
C. Community Involvement
1. Annual Action Plans and Community-Centric Capacity Building
1.1. Each State and UTs is directed to develop an Annual Action Plan to prevent
child marriages, incorporating Key Performance Indicators (KPIs) that
reflect local cultural and social contexts. This plan should include
measurable goals tailored to address community -specific beliefs and
practices related to child marriage; and
1.2. States and UTs shall incorporate regular orientation programs, seminars,
and workshops in their annual schedules aimed at building the capacity of
all stakeholders. These initiatives should target CMPOs, Gram Panchayat
or Municipality office holders, government officials, school principals and
teachers, representatives of non- governmental organizations, local
representatives, and Para Legal Volunteers (PLVs), fostering a
collaborative approach to child marriage prevention.
2. Adoption of the Child Marriage Free Village Initiative
2.1. Inspired by the "Open Defecation Free Village" model under the Swachh
Bharat Mission, a “Child Marriage Free Village” initiative should be
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launched, encouraging Panchayats and community leaders to play an
active role in preventing and reporting child marriages; and
2.2. This initiative will mobilize local communities to collectively discourage child
marriages, with the involvement of Panchayats in monitoring and promoting
"Child Marriage Free" certifications for villages and Gram Panchayats. This
designation should be publicly celebrated to reinforce a culture where the
rights and well-being of children are paramount.
D. Awareness Campaigns
1. Awareness Campaigns Led by CMPOs in Schools, Religious Institutions,
and Panchayats
1.1. CMPOs are directed to conduct regular, structured awareness campaigns
across schools, religious institutions, and Panchayats. These campaigns
must include impactful hoardings and slogans in local languages that
highlight the legal penalties for child marriage, health risks associated with
early and forced marriages, and their socio- economic consequences; and
1.2. Schools and local institutions must conduct monthly informational sessions,
leveraging creative methods like plays, storytelling, and interactive sessions
to engage young people on the topic of child marriage prevention,
emphasizing gender equality, reproductive rights, and personal agency.
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2. Comprehensive Sexuality and Rights Education
2.1. All States and Union Territories are directed to integrate comprehensive
sexuality education
275
into school curricula in line with the framework
prescribed by the World Health Organisation
276
and leading thoughts in the
field of CSE. This education must include clear information on the legal
aspects of child marriage, gender equality, reproductive health rights, and
the impacts of child marriage on physical and mental well-being; and
2.2. Educational content should be tailored for age- appropriateness and be
culturally sensitive, with particular emphasis on empowering students with
knowledge of their legal rights, the importance of delaying marriage, and
understanding of sexual and reproductive health.
3. Educational Materials and Community Awareness Tools
3.1. Schools in regions where child marriage prevails must include information
on child marriage prevention within the curriculum, with a dedicated section
in textbooks that outlines legal protections, health risks, and preventive
measures. Visible posters or charts summarizing this information should be
displayed prominently in schools, Gram Panchayats, and public institutions;
and
275
‘CSE’
276
CSE is the imparting of accurate, age- appropriate information about sexuality and their sexual and
reproductive health – which is critical for their health and survival; See World Health Organization, (2023),
“What is Comprehensive Sexuality Education?”.
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3.2. Schools must adhere to a reporting protocol whereby principals or teachers
are required to report potential cases, such as sudden drop out of a girl
child, to the appropriate authorities immediately.
4. Targeted Community Awareness Campaigns
4.1. Regular community-based campaigns are mandated, specifically targeting
parents, respected members of the community (including but not limited to
teachers, principals and local body leaders) and local influencers. CMPOs
are instructed to work with these groups to challenge entrenched social
norms, using community discussions, multimedia presentations, and
testimonials from child marriage survivors to shift perceptions; and
4.2. Community-focused initiatives should also include public forums where the
adverse effects of child marriage are openly discussed, alongside the
benefits of educating young women.
5. Empowerment Programs for Girls and Young Women
5.1. All States and Union Territories are directed to implement mentorship and
leadership programs that encourage young girls to become active
participants in their communities. These programs should include
workshops on leadership skills, public speaking, and advocacy training,
enabling girls to become local ambassadors for change; and
5.2. Schools and local organizations should establish peer groups led by trained
mentors, where girls can safely discuss personal issues of home, family and
public ongoings which may potentially force a girl into child marriage.
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6. Helpline Awareness and Reporting Mechanisms
6.1. Comprehensive awareness of helpline numbers such as Childline (1098)
and Women Helpline (181) should be included in all educational materials
and community campaigns. Schools, Panchayats, and local institutions are
required to display these numbers prominently and ensure that children and
adolescents are aware of how to seek help.
E. Training/Capacity Building
1. Training for Community Health Workers and Educators
1.1. All State and UTs will impart specialized training to Anganwadi Workers
(AWW), Auxiliary Nurse-Midwives (ANM), and Accredited Social Health
Activists (ASHA) to enhance their role in the prevention of child marriage
through active community engagement. This training should cover:
1.1.1. Identification of at-risk children and families, effective communication
strategies to engage communities, and understanding the legal
framework surrounding child marriage;
1.1.2. Workshops on the socio- economic impacts of child marriage on girls
and families, enabling them to effectively communicate these
consequences to community members; and
1.1.3. Effective ways and strategies to deal with crisis-management and
render immediate and long- term support to victims who may be in a
crisis associated to child marriage. This may include persons such as a
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girl vulnerable to child marriage herself; a peer, sibling or other person
who fears that another person may be at risk of child marriage; or girls
who have witnessed early or forced marriages around them.
2. Training for Law Enforcement and Judicial Officers
2.1. Police officers, particularly those in the Special Juvenile Police Units
(SJPU), must undergo training focused on the legal aspects of the PCMA,
child rights, and sensitivity towards cases involving minors. This training
should include:
2.1.1. Protocols for handling child marriage cases, ensuring the protection
of victims, and understanding the psychological impact of child
marriage on children and those affected around them; and
2.1.2. Regular refresher courses on human rights and the ethical treatment
of victims in accordance with the Juvenile Justice (Care and Protection
of Children) Act.
3. Capacity Building for Teachers and School Administrators
3.1. Teachers and school administrators will be trained to recognize signs of
potential child marriage and engage with students regarding their rights and
the importance of education.
4. Empowerment of Local Leaders and Community Influencers
4.1. Training programs will be designed for local leaders, including members of
Panchayati Raj Institutions and community influencers, focusing on their
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critical role in preventing child marriage. This training should cover
strategies to challenge and change harmful social norms and practices that
perpetuate child marriage within their communities.
5. Engagement with Non-Governmental Organizations (NGOs)
5.1. Collaborations with NGOs that focus on women's rights and child protection
will be established to train volunteers and staff on child marriage prevention.
State authorities including the CMPO and SJPU must proactively identify
and collaborate with NGOs on the practical and procedural difficulties in
preventing, prohibiting and prosecuting child marriages.
6. Training for Health Care Providers
6.1. Healthcare providers, including doctors and counsellors, will be trained to
address the specific health risks associated with child marriage. This
training will include:
6.1.1. Counselling techniques for young women and girls, focusing on
reproductive health rights and the health consequences of early
marriage; and
6.1.2. Awareness of available resources for girls at risk and the referral
processes for victims seeking help.
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F. Educational and Social Support
1. Educational Incentives and Scholarships
1.1. The Ministry of Women and Child Development is directed to consider the
viability of implementing comprehensive educational incentive programs
specifically targeted at girls at risk of child marriage. This includes:
1.1.1. Providing scholarships to girls for secondary and higher education to
encourage families to prioritize education over early marriage;
1.1.2. Offering stipends or financial support for families with daughters who
remain in school beyond the age of fifteen, as a tangible incentive for
delaying marriage; and
1.1.3. Creating mentorship programs that connect at-risk girls with role
models who have successfully pursued education and career
opportunities.
2. Social Welfare Programs
2.1. The Ministry of Women and Child Development will also consider
developing and implementing social welfare programs to assist families at
risk of engaging in child marriage, including:
2.1.1. Conditional cash transfer programs that provide financial support to
families in exchange for commitments to keep their daughters in school
and delay marriage until legal adulthood;
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2.1.2. Access to vocational training and skill development programs for
families, enabling them to improve their economic status and lessen
reliance on marrying off daughters for financial relief; and
2.1.3. Support services for families facing economic hardships, such as food
assistance, healthcare services, and access to microfinance
opportunities to promote sustainable livelihoods.
3. Convergence and Continuity of Services
3.1. The Chief Secretaries of all States/UTs shall designate an appropriate
authority who shall ensure the convergence of services across various
government departments and agencies to create a cohesive support
system for vulnerable and at-risk communities. This includes:
3.1.1. Regular inter-departmental meetings to coordinate efforts and
resources among education, health, social welfare, and law
enforcement sectors to address the multifaceted nature of child
marriage; and
3.1.2. Establishing community-based resource centres that provide
information and support related to education, legal rights, and social
services to families at risk of child marriage.
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G. Monitoring and Accountability
1. Development of Standard Operating Procedures
1.1. The National Legal Services Authority
277
is directed to formulate a Standard
Operating Procedure
278
that provides comprehensive guidelines for legal-
support services, and long- term rehabilitation plans related to the
prevention, protection, and rehabilitation of victims of child marriage for
lawyers and law-enforcement officers. NALSA is further directed to dispatch
this SOP to all States and District Legal Services Authority where it may be
used in assisting aggrieved victims;
1.2. The Ministry of Women and Child Development, in consultation with State
Child Protection Societies
279
and local government bodies, shall draft SOPs
focused on maintaining detailed registers. These registers will document:
1.2.1. The number of awareness programs and capacity-building initiatives
conducted;
1.2.2. The number of child marriages prevented and reported; and
1.2.3. Follow- up actions taken in each case.
1.3. The SOPs must clearly define the duties and responsibilities of CPMOs,
and other stakeholders involved in community protection efforts, such as
police authorities, Sarpanchs, village Pradhans, school teachers, AWWs,
277
“NALSA”
278
“SOP”
279
“SCPS”
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and ASHA. Special emphasis shall be placed on these responsibilities
during critical periods and other wedding seasons and
1.4. The National Commission for Protection of Child Rights is directed to
expedite the process of drafting an SOP to establish accountability for the
non-reporting of child marriages, provide rehabilitation for minor survivors,
and initiate prosecution procedures.
2. Role of Panchayats and Local Leaders
2.1. All Panchayats, Sarpanchs, and local leaders must:
2.1.1. Complete a training program on child marriage prevention and
reporting within three months;
2.1.2. Report any suspected child marriages within 48 hours of awareness
to relevant authorities; and
2.1.3. Actively participate in community awareness programs to educate
families on the legal consequences of child marriage and promote
alternative practices to early marriage.
3. Individual Care Plans for At-Risk Girls
3.1. State authorities must develop and implement Individual Care Plans (ICP)
for at-risk girl children, ensuring compliance with Section 10 of the JJ Act,
which mandates individualized care and rehabilitation for children in need
of care and protection. It shall include:
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3.1.1. Immediate access to educational resources tailored to the child's
needs;
3.1.2. Regular psychological support sessions, including counselling and
therapy, as necessary;
3.1.3. Establishment of peer support groups to help at-risk girls connect with
one another and share experiences;
3.1.4. Monitoring by Child Welfare Officers/District Child Protection Unit
(DCPU) should occur every month for the first year post-intervention to
ensure successful reintegration into education and community life; and
3.1.5. Follow- up assessments should be conducted every three months to
evaluate the effectiveness of the ICP, adjusting support services as
needed to address any emerging challenges faced by the child.
H. Technology-Driven Initiatives for Reporting Child Marriage
1. Creation of a Centralized Reporting Portal
1.1. The Ministry of Home Affairs, in collaboration with the Ministry of Women
and Child Development and the NALSA, shall establish a designated portal
for online reporting of child marriages. This portal will include features for
anonymous reporting, allowing victims and concerned citizens to easily
lodge complaints and access support services; and
1.2. The portal will serve as a centralized platform for collecting and analyzing
data on child marriage incidents, enabling targeted interventions. It will
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enhance accessibility, transparency, and accountability by ensuring that all
reports are addressed promptly by enforcement agencies and CMPOs.
2. Leveraging Technology for Support Services
2.1. Each State and UT shall make all endeavours to disseminate information
against child marriage across all print, digital and social media – with a
focus on regions where child marriages are likely to occur in high numbers.
They shall also consider the viability of data analytics to identify high- risk
areas and patterns of child marriage, enabling swift interventions.
3. Technology-Driven Monitoring of Attendance
3.1. The Ministry for Women and Child Development, in coordination with the
relevant State Ministries, shall consider the viability of a technology-driven
monitoring system to track daily attendance for school-going girls up to the
12th grade, ensuring compliance with the privacy standards outlined in the
Supreme Court judgment in KS Puttaswamy (9J) (supra).
I. Funding and Resources
1. Dedicated Annual Budget Allocation
1.1. The relevant ministries of the Union Government are directed to
recommend the allocation of a dedicated yearly budget for each State
specifically aimed at preventing child marriage and supporting affected
individuals. This budget should encompass:
1.1.1. Community awareness programs;
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1.1.2. Educational initiatives targeting at-risk populations;
1.1.3. Training programs for frontline workers, including CMPOs and local
law enforcement;
1.1.4. Rehabilitation services for victims, including counselling and
vocational training; and
1.1.5. Provisions for regular monitoring, home visits, and follow-up support
for victims to ensure their reintegration into society.
2. Juvenile Justice Fund Institutionalization
2.1. The State Governments are directed to institutionalize the Juvenile Justice
Fund established under Section 105 of the JJ Act . This fund will provide
financial assistance in the form of scholarships and stipends specifically for
girls at imminent risk of child marriage or whose marriages have been
annulled, promoting their educational and social empowerment.
3. Compensation for Girls Opting Out of Marriage
3.1. The Ministry of Women and Child Development is requested to consider the
viability of providing compensation to girls who opt out of marriage upon
reaching the age of majority under the NALSA Victim Compensation
Scheme or respective State Victim Compensation Schemes. This
compensation should be equivalent to that provided to rape victims,
ensuring adequate support for those who have escaped child marriage.
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4. Identification and Support for At-Risk Children
4.1. Superintendents of Police and Collectors are directed to identify instances
of child marriage and monitor children at risk of dropping out of school due
to socio-economic challenges or threats of early marriage. This initiative
should ensure:
4.1.1. Comprehensive access to education and health services for at-risk
children; and
4.1.2. Provision of stipends and fellowships to support their continued
education and mitigate the factors contributing to child marriage.
X. Suggestions
212. In the course of this judgment, we have traced the full breadth of the law
against child marriage. The PCMA is the central legislation governing the issue on
the subject. In light of the Constitutional guarantees accruing to children, we
observe certain gaps in the PCMA. Absent a Constitutional challenge or a case
being argued, we resist from making declarations and restrict ourselves to making
suggestions for the scrutiny of the Union. The legal question on these issues,
however, is kept open if it were to come before a Constitutional court in an
appropriate proceeding.
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213. The issue of the interface of personal laws with the prohibition of child
marriage under the PCMA has been a subject of some confusion. The Union in its
note of submission filed after the judgment was reserved in the case has stated
that this Court may direct that the PCMA prevails over personal law. The note
states as follows:
“9. As a way forward, Ministry of Women & Child
Development has following inputs to provide for kind
consideration of the Hon’ble Court –
i. There are conflicting pronouncements by
various High Courts about the precedence of the
Prohibition of Child Marriage Act (PCMA), 2006 over
the personal laws. Hence, Hon’ble Court may
consider issuing directions pronouncing that the
PCMA will prevail over the personal laws governing
marriage.
…”
214. Details of the conflicting opinions were not furnished in the submissions by
either party to these proceedings. The PCMA states nothing on the validity of the
marriage as we have noted above. The Prohibition of Child Marriage (Amending)
Bill 2021 was introduced in Parliament on 21 December 2021. The Bill was referred
for examination to the Department Related Standing Committee on Education,
Women, Children, Youth and Sports. The Bill sought to amend the PCMA to
expressly state the overriding effect of the statute over various personal laws. The
issue, therefore, is pending consideration before Parliament.
215. Lastly, we note that while the PCMA seeks to prohibit child marriages, it
does not stipulate on betrothals. Marriages fixed in the minority of a child also have
the effect of violating their rights to free choice, autonomy, agency and childhood.
It takes away from them their choice of partner and life paths before they mature
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and form the ability to assert their agency. International law such as CEDAW
stipulates against betrothals of minors. Parliament may consider outlawing child
betrothals which may be used to evade penalty under the PCMA. While a betrothed
child may be protected as a child in need of care and protection under the JJ Act,
the practice also requires targeted remedies for its elimination.
XI. Conclusion
216. A copy of this Judgment will be transmitted to the Secretaries of all
concerned Ministries, the Government of India which includes the Ministry of Home
Affairs, Ministry of Women and Child Development, Ministry of Panchayati Raj,
Ministry of Education, Ministry of Information and Broadcasting, Ministry of Rural
Development, statutory authorities, institutions, and organizations under the
control of the respective ministries.
217. The Ministry of Women and Child Development is directed to circulate this
judgment to the Chief Secretaries/Administrators of all the States and Union
Territories, as well as NALSA, and NCPCR for strict compliance with the directions.
This shall be done within a period of four weeks from the date of delivery of this
judgment.
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218. The writ petition is disposed of.
219. Pending application(s), if any, stand disposed of.
…….……………………………………CJI
[Dr Dhananjaya Y Chandrachud]
.….…………………………………………J
[J B Pardiwala]
..….…………………………………………J
[Manoj Misra]
New Delhi;
October 18, 2024
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