On 11th January the Division bench of Chief Justice DN Patel and Justice Jyoti Singh issued notice. It seeks directions for the declaration of Section 3 (1) of the Prohibition of Child Marriage Act, 2006 as ultra vires of the Constitution. The plea seeks that the child marriages should be treated as ‘void ab initio’ in the state of Delhi. So far child marriage is voidable which means it will be valid unless the petition for invalidating the marriage is made by either party. The decision in favour of this plea will make child marriage void which means that, from the onset marriage will have no legal force or binding.
Child marriage violates the rights of children and puts them at high risk of abuse and exploitation. Child marriage affects both girls and boys, but it disproportionately impacts girls. It adversely affects the rights of the girls to education, health and safety. These repercussions directly affect not only the girls, but also their family and community.
It is more likely that a girl who is married as a child will be out of school and not earn money and contribute to the society. She is more likely to witness domestic violence and to become HIV/AIDS infected. When she is still a teenager, she is more likely to have kids and is more likely to die because of complications during pregnancy and childbirth.
The inefficiency of the Child Marriage Restraint Act, 1929, contributed to its replacement. Hence, lead to the enactment of the Prohibition of Child Marriage Act, 2006. This Act provides for the prevention of child marriages with increased penalties: rigorous imprisonment for two years and/or a fine of Rs.1 lakh. Also, it describes a child as a male under 21 years old and a female under 18 years old. Legally, in India child marriage is voidable at the option of the parties.
According to United Nations, it is estimated that at least 1.5 million girls under the age of 18 get married in India each year, making it home to the world's largest number of child brides, accounting for a third of the global total. Currently, almost 16 per cent of teenage girls aged 15-19 are married. Child marriage is prevalent in India as girls are traditionally less respected or valued than boys. Reasons being poverty, unemployment and restricted access to quality education and job opportunities. Thus, making child marriage as the best choice for girls or as a way for parents to alleviate the daunting economic conditions of the household. We have understood that child marriage in India is closely related to low income and low education level. This is why, in contrast with Rajasthan, Uttar Pradesh and Bihar, southern states such as Kerala and Tamil Nadu have a lower proportion of early marriages.
The current petition which sought to make child marriage as ‘void ab initio’ in Delhi was filed by Aisha Kumari. She said that while she was in the 10th grade, she was forcibly married to her aunt's son, by her and his parents. She also argued that she had no option to go against the desire of her parents and community and was compelled to give her consent for the said marriage ceremony despite her reservations. In November last year, her husband approached her along with his parents, who tried to take her to Gujarat. Although she succeeded in leaving her parental home and finding a temporary place to live, she seeks protection from the Delhi High court. Also, she demands that her marriage should be declared null and void.