Preventing Child Marriages: PCMA and the Road to be Taken

Empowering adolescents can be a much smarter alternative instead of criminalising or penalising a widely prevalent social practice, which is clearly a pure violation of individual rights.

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India ranks first in the world in terms of number of marriages being carried out. Around the world every three seconds one marriage is solemnised and India tops with 15,59,000 marriages. Among them 7 per cent are of the girls below 17 years of age. For over 90 years now India has had laws against child marriage. The first law came way back in 1929, which was Child Marriage Restrain Act and yet even today this practice is widely prevalent, the reason being a number of loopholes in the legal and policy domains. The enforcement of the law is also a lost battle. As per the National Crime Records Bureau (NCRB), in the last three years the maximum number of cases registered against child marriage was in 2018, which were only 500. With no accountability of the legislation, sub-standard penalty and given the premium on chastity and the universality of marriage it is not easy for a child to pull out of the institution of marriage.

In order to understand the root cause of child marriage and develop an action plan to prevent it, Praxis, along with Partners in Change (PIC) and Dialectics, hosted its 33rd webinar, a series that they had started since the onset of lockdown in order to bring the voices from the marginalised community braving with the pandemic and its impact. The webinar brought together several panelists, which included children, activists, organisations and individuals who are engaged with the issues of children and their development at large. “Child marriage is a complex issue with multiple levels of complexity. In the name of family and caste honour, girls are being pushed into child marriage and if we look at the post-COVID situation and the lockdown, these instances have drastically increased and so has domestic violence”, said Tom Thomas, CEO, Praxis, in his initial remarks and setting off the discussions.

Bringing forward the ground reality, S. Jothi Lakshmi from Nilakottai, Dindigul, studying in Class 11 and a member of an Adolescent Girls’ Group in her village, shared that to protect the children from social threats or due to their own poverty and fear of elopement of the girls, parents marry their daughters before the right age. “Parents who commit child marriage should be legally punished, which will then let other families realise that child marriage is a crime” said a furious Jothi Lakshmi. Adding on, Nanku Das from Dhanbad, Jharkhand, associated with the community-led collective that works to prevent child marriage, brought forward a means that they were using to stop child marriage. In order to understand the situation and compulsion of the people, he created a space for dialogue and analysis where people had the opportunity to see through the pros and cons of their choices and decide on their options accordingly. Nanku’s daughter Sweety Kumari, an active member of his collective, aspires to join civil services. Assisting her father in his initiative she mobilised with other girls motivating them to speak for their own rights. As a possible solution to curb child marriage, Soosaimariammal from Dindigul, and a member of Community Support Group, Vaanavil Federation, suggested that the government should help children continue their education by offering free education and scholarship benefits till the age of 21. Also, the government should work on their skill development, which will help adolescent girls gain confidence and support their families who think daughters are a financial burden.

Throwing light on the issue from a legal perspective, Balamurugan, Programme Advisor, Freedom Fund, and one of the founding members of the Tamil Nadu Alliance, highlighted that the Prohibition of Child Marriage Act (PCMA) 2006 is not comprehensive enough, as it is not actually prohibiting all child marriages.

Also Read : Child Marital Rape: What the Centre has failed to understand

For instance, the Section 3 of the Act talks about voidable marriage where only the bride or the groom can file a petition to nullify their marriage, which is not at all possible under the clutches of the parents. In Section 4 of PCMA, marriage is called void only if it is done by force or cheating and the Section 13 also does not fully nullify the marriage. Hence PCMA does not declare that all child marriages are illegal making a big gap in the legislation. The Hindu Marriage Act 1955also does not nullify child marriage, and moreover PCMA is not applicable to the Muslim Personal Law, which makes it all the more inefficient. As a possible solution Balamurugan suggested that the existing gap in PCMA should be amended based on the Section 375 of the Indian Penal Code (IPC). “Prohibition of Child Marriage Act should be the supreme act with no contradiction with any other personal law in the country. After PCMA there have been several other developments. In 2017 the supreme court gave a landmark judgment and a clear understanding of section 375 of IPC in which the court said that if the wife is below 18 years and is conjugated even by her husband it will be considered as rape”, he said.

Dwelling further on the issue, Albertina, an activist, lawyer, researcher and co-convenor of Citizens’ Initiatives for Communal Harmony, emphasised that the State should take proactive steps to ensure that the factors that are responsible for child marriage do not exist. According to her, “The State has an obligation to do whatever is necessary that prevents child marriage. It should not only penalise people, but also take necessary steps to ensure that there is food security, social security and bodily security of the children because these are the factors which are the reasons why child marriage is still prevalent.”

Elaborating on the accountability of the government, Christhuraj a child rights activist, Coordinator of Early Child Marriage Project at CRY, and an Advocate at Madras High Court, recommended a behaviour communication change within the government agencies so that they all unanimously address this issue. The village administrative officer and primarily the Panchayat also need to ensure that the rights of every child particularly of the marginalised children are protected by linking them with government facilities, schemes and policies. The various adolescent bodies available at the school level like National Cadet Corps (NCC), The Bharat Scouts and Guides, Junior Red Cross, etc. need to be empowered so that schools are not just institutions that provide education, but a comprehensive learning system by which everybody emerges as a leader. With proper orientation they can stand as a child rights protectors and ambassadors at their own neighbourhood. Even the religious leaders can be empowered so that they stand against child marriages being conducted at their platforms.

Tushar Anchal, who has worked closely on the juvenile justice system and was an advisory board member for National Commission for Protection of Child Rights (NCPCR), gave an international perspective on the whole issue. India has been a signatory to the UN Childs Rights Convention (UNCRC), the Convention on the Elimination of Discrimination of All Forms of Discrimination Against Women (CEDAW) and India has signed other international treaties as well, which define that India should protect the rights of the girls and young women in the country, but India as a government is failing to do that. He further stated that India has never signed the convention on the minimum age of marriage and is still holding itself back from the convention and there is no uniformity across the country when it comes to child marriage abolition and the type of punishment, which is there is very sub-standard. Apart from that, one of the biggest problems with a child is that they are not understood as an actor in the human rights framework and are more seen as recipient that makes all the treaties and laws which is coming on board to prevent the child marriages inefficient. “The biggest change what the society needs is a perspective that a child is not a commodity of a parent. It is not a health complication, it is not backlog of education or livelihood issues, it is a clear and pure violation of an individual rights. And if individual rights are not going to be respected, we can never end child marriage”, he said. It is also important to create support institutions working with the girls to help them initiate economic activities so as to decrease the dependence on the parents and then on the husbands, respectively.

Vikram Srivastava, a human rights lawyer and founder of ‘Independent Thought’—a leading national human rights organisation, shared there is a possibility that the minimum age of marriage will be raised to 21 for the girls because the NITI Aayog report has suggested that for various health reasons the age of motherhood should be increased to 21.

However, on the other hand, the Law Commission report, 2005, which was a proposal to amend the PCMA and other allied laws, clearly stated that “the age of marriage for both boys and girls should be 18 years as there is no scientific reason why it should be different”.

Also Read : Education: The path to curbing child marriages

Hence there is still a lot of ambiguity regarding the age of marriage. Another major gap in the legislation is the complete absence of State for the children under the age group of 14 to 18. The “Right To Education ends at 14, Anganwadis rarely cater to these young girls because they work more on the targeted approach than universal approach and there are no other schemes where adolescents between age 14 to 18 are approached by the State. The law and policies emerge only when something bad happens to these girls. This issue of absence of state has to be dealt with”, he said. The other issue that was presented was of law and order as many marriages were solemnised because of the fear of some mishap and staining of honour of the family. If children are getting married because of law and order problem, this issue is much beyond socio-economic problem, there is a larger issue of law and order.

Concluding the discussions, Anindo Banerjee from Praxis stated that we need to ponder on the question “If not marriage, then what? Given that there are so many factors at play, one key question that we need to find answer for is what if these compulsions were not there, would parents still want their children to be married young? It is a hypothetical question, but an important one that needs to be answered if the intent is to prevent child marriages”, he said. Other questions were also raised regarding the mobilisation of communities as to whether they can come together and stand against a practice, which is so widely prevalent and often so normalised that it is not even seen as an issue. If the battle against child marriage is still on even after 90 years, it means that only legal interventions are not sufficient. “A more rational option might be to incentivise proactive, progressive and affirmative choices, where a girl, if she wants to pursue higher levels of education or acquire new skills, it should be made possible as an assured choice by the State. This seems an important lead for advocacy”, he added.