A child marriage is a marriage between the parties where:
- Both people marrying are minors, or
- One of them is a child/minor.
For a woman, age of marriage is 18 years.
For a man, age of marriage is 21 years.
Under Muslim personal law, the age of marriage is puberty (15 years of age). So, if you are below 18 years/21 years respectively and you get married, your marriage is not illegal. However, you can choose to cancel the marriage under the child marriage law.
Child marriage is an age old practice in India. To address this social issue, the law prohibits people from performing child marriages and lays down punishments for those involved in conducting the marriage.
However, if a child has been married, the law does not immediately make the marriage illegal. The child so married has the option to cancel the marriage or continue the marriage.
According to certain personal laws (laws that govern different religions on aspects like marriage, divorce etc.), in India, marriage is allowed after the child has attained puberty. This can happen before the child has turned 18 years (in case of girls) or 21 years of age (in case of boys). On several occasions, Courts have held that such marriages conducted under personal laws would not be illegal. However, the child married under such laws would still have the option to cancel their marriage as per the child marriage law.
However, in certain circumstances, some child marriages are considered to be absolutely illegal.
Conducting child marriages is also a crime:
- Conducting the Marriage: Anyone who performs or helps in performing a child marriage will be committing a crime.
- Parents/Guardians conducting marriage: If a parent, guardian or any person responsible for a child in any capacity, promotes child marriage or participates in conducting a child marriage, then they will be committing a crime. Attending or participating in a child marriage is also a crime.
Anyone who is convicted of committing these crimes will be punished with rigorous imprisonment for two years along with a fine of one lakh rupees.
All offences under this law are cognizable and non-bailable, which means that the police can arrest you without a warrant and bail will not be granted to you as a matter of right.
In most crimes, the responsibility to prove the guilt lies on the public prosecutor, an advocate for the State. However, under this law, if a child marriage has taken place, then it will be presumed that the parent or guardian responsible for the child failed to prevent the child marriage from taking place.
It is important to note that women cannot be punished with imprisonment under this law, and can only be fined.
Where a child marriage has taken place, the person who was a child at the time of marriage has an option to cancel the marriage. You can cancel a child marriage in the following manner:
Where do you file the case?
A petition should be filed in the District Court to get the marriage annulled.
Who files the case?
If the person filing the case is a minor (below 18 years of age) then their petition has to be filed through a guardian or any other person who is interested in the child’s well being. This person will have to file the case along with the Child Marriage Prohibition Officer, who is responsible for preventing child marriages.
When can you file the case?
It is important to note that there is a time limit to file this petition. It can only be filed within two years after the child attains majority. For girls, such a petition to strike down their marriage can only be filed till they turn 20 years old and for boys till they turn 23 years old.
What does the Court do?
When such a child marriage is cancelled, the District Court will order both the parties to return all the money, valuables, ornaments and all other gifts received during the wedding to the other side. If they are unable to return the gifts, an amount equal to the value of the gifts must be returned.
In certain cases under the child marriage law, the marriage would be absolutely illegal and will be considered to have not occurred in the first place. Such instances are as under:
- When a child is kidnapped for the purpose of marriage.
- When a child is enticed and taken for the purpose of marriage.
- Sold for the purpose of marriage
- After marriage, the minor is sold or trafficked
- If the Court passed an order against a child marriage and it still takes place.
Irrespective of whether the child marriage has been cancelled or not, as per the law, a child born out of such a marriage would be considered a legitimate child under the law.
Custody of Children
As for the custody of such children, the district court will decide who would receive custody of the children only while hearing the petition for cancelling the marriage.
The court will take the following into account while granting custody:
- The welfare and the best interest of the child will be given paramount consideration by the court while deciding their custody.
- The court may even allow the other party access to such children if it thinks it would be in the best interest of the child to do so.
- The District Courts can direct the husband, or in cases of minors, their parents or guardians, to pay an amount as maintenance to the girl.
The law offers certain protections to girls who have been married below the age of 18 years and have filed for cancelling their marriage.
Payment of Maintenance
The district court can direct the husband, or in cases of minors, his parents or guardians, to pay some money as maintenance to the girl.
The Court while deciding the amount of maintenance, will keep in mind the lifestyle of the girl and the income of the person paying. This payment has to be given till the girl remarries.
Arrangements for Residence
The court can even order suitable arrangements for residence to be made for the girl until she remarries.