Assam crackdown on child marriage: What does the law say?

Chief Minister Himanta Biswa Sarma said that the police will retrospectively book people who participated in child marriage in the last seven years and the focus will especially be on “mullahs, kazis, and pujaris” conducting these marriages. The arrests come in the backdrop of growing debate on the minimum age of marriage of Muslim women.

Under what law are the arrests being made?

Assam’s Chief Minister has said that while men who married girls below 14 years of age would be booked under the Protection of Children From Sexual Offences Act, those marrying girls between 14 and 18 years would be booked under the Prohibition of Child Marriage Act.

The POCSO Act, of 2012 criminalises sex between a minor and an adult. The law does not recognize a minor’s consent as valid. Sexual assault under POCSO is a non-bailable, cognisable offence. This means that the police can make an arrest without warrant. So a presumption of sexual assault is being made in case of child marriage involving minor girls below the age of 14. Sexual assault, that is not penetrative, carries a minimum imprisonment of three years that may extend to five years with a fine.

Moreover, under Section 19, POCSO Act imposes a “mandatory reporting obligation” which requires every person who suspects or has knowledge of a sexual offence being committed against a child must report it to the police or the Special Juvenile Police Unit. Failure to do so will result in imprisonment, a fine, or both.

These mandatory reporting obligations also require doctors to report cases where minor girls seek medical assistance during pregnancies or for termination of pregnancies. Often doctors are forced to report sexual activity involving a minor girl, even if all parties involved have consented to the marriage.

The Prohibition of Child Marriage Act 2006, says that child marriages are illegal but not void. Instead, they are voidable at the option of the minor party, in the scenario that the minor petitions the court to declare the marriage void. The Act stipulates 18 years as the minimum marriageable age for women, while for men it is 21 years. The Act punishes child marriage with “rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.”

The punishment also extends to anyone who performs, conducts, directs, or abets any child marriage and includes rigorous imprisonment of up to two years and a fine which may extend to one lakh rupees unless proven that he had reasons to believe that the marriage was not a child marriage.

What is the debate on Muslim age of marriage?

Under Muslim personal laws, the marriage of a bride who has attained puberty is considered. Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. This gap between Muslim personal law and special legislations prohibiting child marriages or sexual activity of minors puts a shadow on criminality on such marriages.

What have the courts said on the issue?

The Supreme Court is currently examining this issue since different High Courts have ruled differently on it. On January 13, a bench led by CJI Chandrachud-led bench of the Supreme Court agreed to hear an appeal against a 2022 decision of the Punjab & Haryana High Court which allowed a 16-and-a-half-year-old Muslim girl to marry a person of her choice after attaining puberty. The National Commission for Protection of Child Rights (NCPCR) has filed the appeal.

NCPCR challenged the High Court’s ruling on grounds that personal laws can’t override special penal statutes. The National Commission for Women (NCW) also filed a petition in the Apex court in December 2022, where it sought directions to make the minimum marriageable age for Muslims at par with the other communities. The court had issued notice and appointed Senior Advocate Rajshekar Rao as amicus curie to assist in the matter.

The SC’s intervention came after various High Courts ruled differently on this issue.

* The Punjab and Haryana High Court in a string of rulings has held that a Muslim girl can legally marry after attaining puberty. Often, the family of such girls file a case under POCSO alleging rape even when the minor girl has decided to marry or elope on her own volition.

* In October 2022, the Karnataka High Court quashed a POCSO case against a Muslim man who was arrested after a hospital made mandatory disclosures under the law when his pregnant wife, aged 17 years and two months visited a doctor.

* In November 2022, another bench of the Karnataka High Court, while noting the incongruity in law, granted bail to a Muslim man arrested under similar circumstances.

* However, in January 2013, the Karnataka High Court had ruled that the Prohibition of Child Marriage Act will have an overriding effect on the provisions of Muslim personal laws where a girl can marry upon attaining puberty, as was the case of a 17-year-old girl in “Seema Begum vs State of Karnataka.”

What is the central government’s stand?

In 2021, the Central government sought to introduce the Prevention of Child Marriage (Amendment) Bill 2021, to raise the manageable age for women across all religions, from 18 to 21 years. However, the Parliament panel examining this is yet to submit its report, after receiving an extension in October 2022.

In line with the Centre’s attempts, was the establishment of the Jaya Jaitly Committee in June 2020, by the Ministry of Women & Child Development, following which the committee submitted a report stating that the marriageable age for women should be increased from 18 to 21 years of age, in light of factors like reproductive health, education, etc.

In December 2021, Smriti Irani, Union Minister for Women and Child Development said that the Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to raise the age of legal marriage for women from 18 to 21, will apply to all communities in the country and, once enacted, will supersede existing marriage and personal laws.

At the time of India’s independence, the minimum marriageable age stood at 15 years for females and 18 years for men. In 1978, the government increased it to 18 for girls and 21 for men. Years later, in 2008, the Law Commission came out with a report which stated that the minimum marriageable age for both men and women should be 18 years of age, as both are considered eligible to vote as citizens at the time.