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.
Anyone can file a complaint of child marriage, including the child. It doesn’t matter whether the child marriage has taken place or not as it can be filed at any time before or after the marriage. A complaint can be made to any of the following authorities:
1098 is a toll-free number and it operates across India. It is operated by Childline India Foundation which works for child rights and child protection. Anyone, including children themselves, can call and give information on this number. You should educate children at schools or children who are working, about this helpline number so that illegal acts of child marriage can be prevented.
You can call the Police on 100 to report:
- About a child marriage that is taking place or
- A child marriage that is about to take place.
Alternatively, you can even go to a Police Station where you can file an FIR and report the same.
Child Marriage Prohibition Officer
You can approach the local Child Marriage Prohibition Officer and report a child marriage to him. He will immediately proceed to take action against the persons responsible.
Child Welfare Committee
You can even approach your local Child Welfare Committee established under the law for juvenile justice to look into the matter. For example, in Delhi you can contact the committees based on the districts.
File a Complaint with the Court
You can even directly file a complaint with the Judicial Magistrate (First Class) or the Metropolitan Magistrate. The Court will order the Police or the Child Marriage Prohibition Officer, as required to take action.
When the Court receives credible information that a child marriage has been arranged or is about to take place, it can issue an order prohibiting the persons from conducting and organizing such marriages.
The accused person can apply to the Court to either revoke this order or even alter it. The Court can even do this on its own motion.
Any child marriage that takes place after the order has been issued will not be a valid marriage.
Circumstances of Court Intervention
The Court can intervene:
- On its own, or
- On the basis of a complaint filed by a Child Marriage Prohibition Officer or any Non Governmental Organization (NGO), or
- In some cases, such as on days of Akshaya Tritiya which is an auspicious time for marriages, the Court can also act as the Child Marriage Prohibition Officer and have all the powers of this Prohibition Officer to prevent child marriages from taking place, or
- Any person who has personal knowledge about a child marriage which may take place.
Notice Issued by Court
Before passing this order the Court must issue a notice to the person accused under this law to give an opportunity to defend themselves.
However, in urgent cases, the Court has the power to issue an interim order (before the final order) stopping the marriage, without giving notice to the person(s) accused.
If a temporary order has been issued against you and you do not follow it, you will be punished with jail time of up to two years and/or fine up to one lakh rupees.