Laws to control, restrain, prohibit and prevent child marriages have existed in India since 1929. It will be 100 years of child marriage law in India in 2029! Hence,
While the first law, Child Marriage Restraint Act, 1929, prescribed 14 years as the age of marriage for girls it was further amended to raise the age to 15 years in 1940. The evolving realization that the physical and mental maturity is attained at the age of 18 years, was reflected when age of marriage was made to 18 years through the 1978 amendment. The Prohibition of Child Marriage Act, 2006 (PCMA) came in 2006, and repealed the Child Marriage Restraint Act, 1929 and provides the minimum age of 18 years for marriage for a girl.
The fight against such harmful yet culturally accepted practice has remained ineffective for many reasons including patriarchy. Marriage is still seen as the “ultimate settlement for girls”. Significantly the lack of State accountability and ambiguity in different laws for vulnerable children provide scope to sustain such human rights violative practices of girl children.
Goals for #Mission2029
· Establish “zero tolerance against child marriage”.
· Create an accountability framework for effective implementation of child right laws in its totality and specially the PCMA, juvenile justice legislations against trafficking and sexual offences, penal codes and laws concerning child protection commission / institutions among others
· Monitor increased investment and resources in girls education and skills through affirmative State action
· Develop the girls’ human rights framework based on National and International Commitments specifically referring to the landmark Independent Thought 2017 judgment by Supreme Court and SDG 2030 targets.
· Position the counter narrative of child marriage as human rights violation among international development community; and to stop justifying articulation of child marriage as culture, tradition or acceptable practice.
· Seek support amongst decision makers such as parliamentary forums etc to end child marriage.
In a historic judgment on 11 October 2017, International Girl Child Day, the Supreme Court of India in the matter; Independent Thought vs. Union of India (W.P. Civil 382 of 2013) read down the Exception 2 to Section 375 of the Indian Penal Code, making sex with minor wife a criminal offence of Rape.
The judgment read that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds: –
Prohibition of Child Marriage (Haryana Amendment) Act, 2020
1. After sub-section (1) of section 3 of the Prohibition of Child Marriage Act, 2006, the following sub-section shall be inserted, namely:-
“(1A) Notwithstanding anything contained in sub-section (1), every child marriage
solemnized on or after the date of commencement of the Prohibition of Child Marriage (Haryana Amendment) Act, 2020, shall be void ab initio.”
STATEMENT OF OBJECTS AND REASONS
The Hon’ble Supreme Court while deciding the Writ Petition (civil) No. 382 of 2013 titled as “Independent Thought versus UOI and Anr.” declared that the Protection of Children from Sexual Offences Act, 2012 being a special law prevails over Indian Penal Code, 1860 and sex with a minor wife aged between 15 to 18 years as per the prevailing exception 2 of section 375 of IPC was arbitrary and violative of the Constitution. Accordingly, the Hon’ble Apex Court invalidated the existing exception 2 of Section 375 of Indian Penal Code vide which sexual intercourse between a man and his wife being a girl of aged between 15 to 18 years is not a rape as per Section 375 but as per the provisions of Section 6 of POCSO Act, this falls within the definition of rape.
Haryana makes Child Marriages as "Void ab initio" and makes husbands of minor brides criminally liable for Rape and other Sexual crimes by making applicable the Protection of Children from Sexual Offences Act, 2012
A State Consultation was held on 19 September 2019 at Indian Law Institute on “Strengthening Legal and Institutional Mechanism to End Child Marriages in Delhi”. The Consultation was organized jointly by Campaign Against Child Marriage (CACM), Delhi Commission for Protection of Child Rights (DCPCR), Indian Law Institute (ILI) and Independent Thought.
The following Guests and speakers shared their views;
· Shri Ramesh Negi, Chairperson, DCPCR
· Dr. Manoj Kumar Sinha, Director, Indian Law Institute
· Sh. Chander Jit Singh, Secretary, DSLSA
· Dr. Nisha Aggarwal, Deputy Director, Women and Child Development
· Ms. Rita Singh, Member, DCPCR
· Dr. Jyoti Dogra Sood, Associate Professor, Indian Law
· Advocate Vikram Srivastava, Founder, Independent Thought
The Workshop was attended by Chairpersons and members from 10 Child Welfare Committee(s), Special Juvenile Police Units (SJPU), Childline, CCIs, NGOs, Lawyers and Others
The Workshops discussed the situation of child marriages which in Delhi is unique and confusing. Despite news articles and videos reporting instances of child marriages in the region, the NCRB data of Delhi (UT) shows a different picture. While NCRB only report 6 cases under PCMA in Delhi between the years 2008 to 2016; cases of child marriages are frequently being heard before the Delhi Commission for the Protection of Child Rights (DCPCR) at the State level and before the 10 Child Welfare Committees (CWCs) at the District level in the National Capital. These are clear evidence of child marriages existing in NCT Delhi.
The Consultation led to identification of many needs and way forward including the development of a standard operating procedure and stakeholders role clarity.
State Level Consultation on Strengthening Legal and Institutional mechanisms to end Child Marriages in Bihar was Jointly organized on 10th August 2019, Patna by Campaign Against Child Marriage (CACM) Child Rights Centre, CNLU Patna Save The Children Organisation and Independent Thought.
The following guests and speakers shared their views
· Guest of Honour, Hon’ble Justice Smt. Anjana Mishra, Patna High Court
· Hon’ble Justice Smt. Mridula Mishra, Vice Chancellor, Chanakya National Law University
· Hon’ble Justice, Mr. Abhijit Sinha, Chairman, Bihar Law Commission
· Sri Sunil Dutt Mishra, Member Secretary, Bihar State Legal Services Authority
· Shri M.P. Srivastava, Registrar, CNLU
· Shri Rafay Eajaz Hussain, General Manager, Save the Children
· Advocate Vikram Srivastava, Founder, Independent Thought
· Ms Sneha, Centre Coordinator, Child Rights Centre
· Mr. Ravi Ranjan, Women Development Corporation, Social Welfare Department
· Sunil Jha, SCPS, Bihar
· Mr. Bipin Kumar, Assistant Manager – ACC, Save the Children
· Mr. Chandan Kumar Sinha, Programme Coordinator
The event was participated by around 100 people from NGOs, Activists, Lawyers and Students
CACM is working since 2013 to strengthen the State Accountability towards total elimination of Child Marriage in India through effective legal and institutional mechanisms. CACM believes that Child Marriage (CM) includes all forms of early and forced marriages. The following are non-negotiable elements in all cases of CM:
· CM is a grave Human Rights violation and denial of all interrelated rights of child. irrespective of the reason and the circumstances accompanying it, Amongst other things, it leads to complete loss of childhood along with health, education and overall development of the child / children involved
· All CM are cases of forced marriages as the informed consent of children involved is never present and hence it is a clear Human Rights denial case
· CM is deep rooted in patriarchy, gender inequality and gender based discrimination along with larger issues of poverty, Gender Based Violence, Stereotypes, lack of access and opportunities to education, livelihood and security for girls, increasing sexual assault, and is directly linked to the economics of and ownership, dowries, bride prices and power of men to buy and control women/girls
· Child marriages in many cases are means of grave human trafficking and commercial sexual exploitation
· All Child Marriages are harmful practices and leads to law and order issues in society and hence needs to be addressed accordingly
In order to understand the complexity and measure the nuances of this problem, we attempt to take a fresh look at the issue in hand. Throughout, we analyse CM from three entirely new lenses:
1. CM is clearly a Human Rights violation (inclusive of it being a grave Child Rights violation). It is undermining to see it solely as a social, economic or cultural norm. In fact, under the vote bank politics of the country where children are voiceless, India has adopted the appeasement approach by not taking a serious approach to this issue.
2. CM is a clear law and order crisis of present times, thriving in India since ages and only increasing in numbers.
3. CM is a child development issue and undermines the whole childhood of parties involved.
The need is for a widespread action on a campaign mode focusing on the following, among others:
· Child marriage is a pure Rights violation of children, especially girl children.
· The Right to free and compulsory education should be extended beyond 14 years to cover children upto 18 years of age in neighborhood schools
· The State has a clear role in ensuring a law and order situation by protecting children from being married off in the fear of insecurity of girls in a unprotected society.
As part of the ongoing Campaign Against Child Marriage (CACM) we were instrumental in historic judgment by the Supreme Court of India on 11 October 2017, the International Girl Child Day, in the matter; Independent Thought vs. Union of India (W.P. Civil 382 of 2013) where the Exception 2 to Section 375 of the Indian Penal Code, which allowed marital rape within child marriages, was read down. The apex court ruled the "Exception in rape law is discriminatory, capricious and arbitrary... It violates bodily integrity of the girl child. If a man has sexual intercourse with a wife who is below 18 years, it will be an offence of Rape. The minor wife can complain against the husband within one year".
While exception 2 to Section 375 IPC is read down as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.
It is also clarified
CACM works with the conviction that child marriages can be eradicated only if we provide quality education to all the children especially the girls till the age of 18 years. For making that a reality we are advocating that all schools in India should provide free and compulsory education as a constitutional right to all children and that of quality. To make that a reality the law on Right to education would need amendment which we have taken up as a social action in the ongoing public interest litigation, Independent Thought vs. Union of India (WP Civil 8763 of 2015) before Delhi High Court; where we have challenged the exemption given to government and government aided school from obtaining a “certificate of recognition” and whereby exempting from adhering to the basic norms and standards by exclusionary clause under Section 18(1), Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) as Unconstitutional. http://www.asianage.com/delhi/delhi-hc-seeks-centre-response-school-pil-064 Please find a PIL note attached along with the two favourable interim orders dated 17 May 2016 (para 5 important) and 6 January 2017.
Ongoing PILs towards ensuring State Accountability, Law reform and effective governance; Independent Thought vs. UOI, in Supreme Court [W.P.(C) 1082 of 2018] CACM seek the following;
o Declare Prohibition of Child Marriage Act, 2006 (PCMA) is a special and secular legislation
o Effecting implementation of provision of Child Marriage Prohibition Officer (CMPO)
o Declare Child Welfare Committees (CWC) as the “next friend” as u/s 3(2) PCMA
o Direct preparation of National and State Plans of Action with focus on District and sub-district Level mechanisms.
o Direct NCPCR and SCPCR to effectively monitor implementing of PCMA in a mission mode.
o PCMA / POCSO are special and secular laws applicable on all needs to be publicised widely even in High Courts
Ongoing PILs towards ensuring State Accountability, Law reform and effective governance; Independent Thought vs. UOI, in Delhi High Court [W.P.(C) 3811 of 2019] CACM seek the following;
o Declare Section 198(6) CrPC being inconsistent with POCSO as unconstitutional
o Amend Section 198(1), CrPC to remove restriction and widen locus standi on who can report in reference to section 19 read with Section 21 POCSO Act, 2012
o Amend and expand the definition of ‘Person’ under Section 198(3) CrPC to include and empower agencies under JJ Act esp Childline and CWC to file complaints on behalf of minor child
o Allow minor victims of marital rape to file compliant till age of 20 yrs similar to annulment u/s 3(3) PCMA