A new study, "Exploring the interlinkages between child marriage and family laws in South Asia," has shed light on the profound legal ambiguities and systemic challenges that perpetuate child marriage in India, despite the country's significant progress in reducing its prevalence.
The report, which examines the intersection of religious personal laws and child protection statutes, reveals that while India has a general law prohibiting child marriage, contradictions with religious and personal laws create significant loopholes that continue to place millions of girls at risk.
According to the study, India still accounts for one in three of the world's child brides, a staggering statistic that underscores the scale of the problem even as the country has witnessed a notable decline, from 47.4% in 2005-06 to 26.8% in 2015-16, and further to 23.3% among women aged 20-24 between 2019-21.
The core of the legal conflict lies in the disharmony between the Prohibition of Child Marriage Act (PCMA), 2006, which sets the minimum age of marriage at 18 for women and 21 for men, and various religious personal laws.
While Hindu, Christian, and Parsi personal laws generally align with this age requirement, Muslim personal law, governed by the Muslim Personal Law (Shariat) Application Act, 1937, remains largely uncodified and is generally interpreted to prescribe puberty as the age of marriage, which is often interpreted as 15 years.
This legal variance creates a state of confusion, as conflicting judgments from various High Courts have left the applicability of the PCMA's minimum age to the Muslim community in a state of uncertainty. The report notes that this lack of uniformity regarding the minimum age at which the law recognises the capacity to consent is a major lacuna in child protection.
The study also highlights that the definition of a 'child' itself is inconsistent across Indian laws, with some statutes like the Bharatiya Nyaya Sanhita, 2023, and the Protection of Children from Sexual Offences Act (POCSO), 2012, defining a child as under 18, while labour laws and the Right to Education Act define a child as under 14, further complicating legal enforcement.
The study identifies critical gaps within the PCMA itself, such as the differential marriage ages for boys and girls, which not only weaken enforcement but also perpetuate discrimination.
The report points out that a male can marry an adult woman over 18 without penalty, while he is still considered a 'minor' for marriage purposes until 21. Furthermore, the legal status of a child marriage under the PCMA is 'voidable' at the option of the minor, a provision intended to protect the rights of child brides, but which creates a legal dichotomy compared to state-level amendments like those in Karnataka, where child marriages are declared void ab initio. This inconsistency is further complicated by independent legislative amendments by states, such as Himachal Pradesh raising the marriage age for women to 21, rendering the law inconsistent across the country.
The report also notes the lack of harmony with religious laws, as Hindu, Christian, and Parsi family laws do not explicitly address whether child marriages are void or voidable, while Muslim personal law continues to allow marriage below 18.
The study delves into the complex interplay between the age of marriage and the age of sexual consent, which is 18 under the POCSO Act and the Bharatiya Nyaya Sanhita. This conflation has led to the criminalisation of adolescents in self-initiated, consensual relationships, as any sexual activity under 18 is considered statutory rape, regardless of consent. The Supreme Court, in the 2017 Independent Thought v. Union of India case, confirmed that sexual intercourse with a wife below 18 constitutes rape, a ruling that has had profound implications.
The report notes that this strict application of the law leads to the criminalisation of what are often consensual relations, particularly when parents file complaints to control their daughters' decision-making. The courts have taken a nuanced view in some cases, but the approach remains inconsistent, with the Supreme Court itself suggesting that Parliament review the age of consent.
The phenomenon of "love jihad," or interfaith marriages, has added another layer of complexity, with several states introducing laws targeting such unions and imposing severe penalties for alleged forcible religious conversions for marriage. The study observes that these laws further complicate the landscape for young people and can be weaponised against interfaith couples.
In response to these challenges, the Government of India proposed the Prohibition of Child Marriage (Amendment) Bill, 2021, to raise the minimum age of marriage for women to 21 across all personal laws. However, this move has sparked a debate over whether raising the age of marriage beyond 18 is the most effective solution, with critics arguing that social change, health infrastructure, and education are more critical.
The report emphasises that sex and marriage are often conflated, and that young people themselves believe marriage is the only way to have sexual interaction, while adults use marriage to control the sexuality of girls, underscoring the need for comprehensive sexuality education and conversations on responsible sexual behaviour.
Despite the legal recognition of the harmful impact of child marriage across the region, the study notes that resistance from religious leaders, seen in countries like Pakistan and Sri Lanka, and different judicial interpretations on the application of general and personal laws, further complicate reform efforts.
The report calls for a comprehensive, multi-sectoral approach that goes beyond legislation, emphasising the need to allocate resources and create opportunities for the most vulnerable girls. It recommends setting the minimum age of marriage at 18 without exceptions across all applicable laws and ensuring that the age of sexual consent is not conflated with the minimum age of marriage.
The study strongly advocates for the effective implementation of laws through engagement and coordination with key state and non-state actors, and for the sensitisation and training of the judiciary, police, and community leaders.
Ultimately, the findings highlight that while legal frameworks are critical instruments to curb child marriage, the mere enactment of laws is insufficient, and a holistic approach addressing poverty, insecurity, and entrenched patriarchal norms is essential for the protection of India's children.
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