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LATEST NEWS UPDATES | Child marriage in the time of #selfiewithdaughter -Manoj Mitta

Child marriage in the time of #selfiewithdaughter -Manoj Mitta

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published Published on Jul 3, 2015   modified Modified on Jul 3, 2015
-The Times of India

In all the buzz about Narendra Modi's promotion of #selfiewithdaughter, what seems to have been overlooked is one bar baric form of discrimination that millions of daughters continue to suffer in this day and age. It's child marriage, which affects the upbringing of daughters and pushes them into situations long before they are physically and mentally capable of handling them. The country has displayed few signs of waking up to the gravity of the problem although it is home to, as borne out by Unicef figures, one in every three child brides in the world. India's own statistics admit that one in two women is married before turning 18.

Just as Nirbhaya galvanized public opinion against rape, Phulmonee did so against child marriage, way back in 1890. An 11-year-old girl in Bengal, Phulmonee died of hemorrhage from a rupture of vagina caused by her adult husband who had forced sex on her. For all the legal reforms made since then, halfhearted as they were, such tragedies still can -and do -recur with impunity. The hold of patriarchy is so tight that even after more than a century, the child marriage law, revamped as recently as in 2006, "does not address a situation like Phulmonee's".

Voidable vs void

This grim diagnosis was made by the Law Commission in a report submitted two years after the enactment of the Prohibition of Child Marriage Act, 2006 (PCMA). For, lawmakers had not mustered the courage to invalidate child marriage as such.Despite the usage of the term "prohibition" in its name, all that PCMA actually does is to make child marriage "voidable". Rather than treating child marriage as void, as demanded by feminists, PCMA allows the child bride to repudiate it after becoming an adult. Couched in a gender-neutral language, Section 3 of PCMA states that "child marriages shall be voidable at the option of the contracting party who was a child at the time of the marriage".In order to get the marriage annulled at that belated stage, it makes provision for a petition to be filed within two years of the child attaining majority .

Far from seeking "to stop a child bride from living with her husband and from being sexually abused", PCMA, as rightly put by the Law Commission, "lays the foundation for such an abuse". It said, "The adverse health consequences and the violence faced by the girl child below a certain age are factors which outweigh certain `social' considerations in not invalidating the marriage." Fittingly , it recommended that instead of being voidable, child marriage be treated as void, where at least one of the parties is below 16. It is only where the child bride is between 16 and 18 that the commission suggested that such a marriage remain voidable.

India lags behind

The recommendation contained in its 2008 report to invalidate only sub-16 marriages betrayed a hesitation on the part of even the Law Commission to disregard claims of religious or cultural sensitivities. It could easily have suggested enforcement of the global norm of 18, especially since there is already a precedent in another secular law. The Special Marriage Act, 1954, providing for nondenominational "civil marriage", stipulates that if any of the parties is underage, then the contract is automatically void. The Law Commission should also have drawn strength from a parliamentary standing committee, which had given a report on child marriage in 2005 as a prelude to the passage of PCMA. The standing committee proposed that all child marriages solemnised after the enactment of the new law be treated as void ab initio (invalid from the outset).

Had it incorporated the standing committee's recommendation in PCMA, the Manmohan Singh government would have been spared the odium of dissociating India in 2013 from a historic initiative in the UN General Assembly to pass a resolution against child marriage.When it was finally adopted in November 2014, India was conspicuous by its absence among the 116 countries sponsoring the resolution. The Modi government's failure to undo this lapse of its predecessor is ironic given its highpitched rhetoric on the girl child. After all, there is nothing unexceptionable about the resolution which regards child marriage as a human rights violation having "a disproportionately negative impact on women and girls".

Age discrimination

Apart from its incongruity of letting child marriage remain valid, the Indian law is out of sync with the global trend of having a uniform marriageable age for both genders.PCMA has retained the age discrimination under which 18 is the age of marriage for women while it is 21 for men. Since there is a two-year window under PCMA to annul a child marriage, this age discrimination makes women more vulnerable. If a boy, for instance, marries at 18, his wife may have the sword of annulment hanging over her head for five years till he turns 23. This anomaly was allowed to remain in the law despite the standing committee's proposal of a common marriageable age. Subsequently, the Law Commission too said that there was "no rational basis" for having different ages for marriage for the two genders.

The age discrimination contained in PCMA has come on top of the existing variations based on personal laws. The Muslim personal law recognizes the age of puberty as the age of marriage and unless proved otherwise, the age of puberty is presumed to be 15 years for both boys and girls. But as PCMA is secular, courts have ruled that it applied even to Muslims implying thereby that a child marriage in their community too was liable to be annulled after the bride turns 18.

Enforce and improve

Whatever its shortcomings, PCMA provides safeguards in the post-annulment scenario on aspects such as maintenance, child custody and legitimacy of the child. It even voids child marriage in exceptional situations where it is, for instance, a case of elopement or is being used as a cover for human trafficking. PCMA contains penal provisions against those responsible for forcing girls into child marriage. But the criminal cases that are booked under PCMA are a tiny fraction of this notoriously rampant social evil: in 2013, just 222 cases were booked in the whole country . That this is gross under-reporting of child marriage is evident from the figures under a related provision. The number of cases booked under Section 366 IPC in the same year for kidnapping of children to force them into marriage was 14,242. Activist Bharti Ali, who has worked extensively on child marriage, says that "the poor use of PCMA is because of the reluctance of daughters to take any legal action against their parents". Hence, the need for the government to promote enforcement of the child marriage law, besides of course tightening it.

The Times of India, 3 July, 2015, http://timesofindia.indiatimes.com/india/Child-marriage-in-the-time-of-selfiewithdaughter/articleshow/47919416.cms


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