Child Marriage

Introduction

Child marriage remains a persistent social and legal problem in India with immediate and long-term consequences for health, education, autonomy and fundamental rights. Legally, the phenomenon is regulated primarily by the Prohibition of Child Marriage Act, 2006 (PCMA) but it engages multiple branches of law — criminal law, family law, juvenile/child welfare law and sexual offences law — often producing complex conflicts of remedies and enforcement questions. For practitioners, understanding the statutory architecture, procedural routes (civil nullity, criminal prosecution, injunctive relief and welfare measures), and the interplay with POCSO and personal laws is critical to effective advocacy and client counselling.

Core Legal Framework

Primary statute
– Prohibition of Child Marriage Act, 2006 (PCMA)
– Section 2(b) — Definition (key excerpt): “child” with reference to a person means a male who has not completed twenty-one years of age and a female who has not completed eighteen years of age.
– Section 3 — Prohibition of solemnisation of child marriages (statutory bar on contracting, performing or solemnising marriage where one party is a child).
– Section 4 — Nullity of child marriages (statute makes such marriages voidable at the option of the contracting party who was a child).
– Sections 6–7 — Penal provisions for solemnising, promoting or permitting child marriages (criminal liability for persons who perform or facilitate child marriages).
– Sections 9–13 — Enforcement mechanisms including appointment and powers of Child Marriage Prohibition Officers (CMPOs) and powers to seek injunctions or cancellation of marriage.
– Section 2 (other definitions) and procedural provisions specify who may file complaints/applications and the reliefs the court can grant (annulment, maintenance, custody, injunctions).

Ancillary and overlapping laws
– Protection of Children from Sexual Offences Act, 2012 (POCSO) — defines “child” as below 18 years; sexual activity with a child is an offence irrespective of consent. This statute frequently operates concurrently with PCMA where a child marriage involves sexual activity.
– Indian Penal Code, 1860 — provisions on rape (as interpreted post-2017), offences arising out of force/coercion, and abetment/culpability of adults who facilitate child marriages.
– Personal laws and marriage statutes (e.g., Hindu Marriage Act, Special Marriage Act) — these may provide ancillary remedies (maintenance, divorce) but do not override PCMA’s prohibition and nullity provisions.
– Constitution and international obligations — Articles 15(3), 21 and Directive Principles (Art. 39(e), (f)) and India’s obligations under the UN Convention on the Rights of the Child are normative anchors for interpretation in welfare-centric directions.

Practical Application and Nuances

How PCMA works in daily practice
– Dual pathways: PCMA offers both criminal enforcement and civil remedies. Practitioners must decide the immediate aim — prevent a marriage, annul an existing marriage, criminally punish facilitators or protect a child from sexual exploitation — and choose avenue(s) accordingly.
– Preventive/injunctive action: A CMPO or any person can approach a magistrate for injunctions to prevent solemnisation. Orders for custody, shelter and protective custody can be sought while proceedings continue.
– Nullity petitions: The marriage is not automatically void; it is voidable at the option of the contracting party who was a child. That party must file a petition for nullity; courts can also fashion ancillary reliefs (maintenance, custody) in the same proceeding.
– Criminal complaints/FIRs: Offences under PCMA (those who solemnise or promote child marriage) attract criminal prosecution; a CMPO or the aggrieved party can initiate action.

Key practical nuances to watch and argue
– Voidable vs void: Child marriage under PCMA is voidable (not void ab initio). That distinction matters: incapacity to marry (if a marriage were void ab initio) would allow third parties to challenge it at any time; under PCMA only the contracting party who was a child at the time (or in some cases the state through CMPO) can seek nullity, and there is a statutory framework for reliefs and timelines.
– Time limit to exercise option for nullity: The PCMA restricts the period within which the contracting party who was a child can seek a declaration of nullity (practitioners must note statutory time bars — typically the option is exercisable within two years of attaining majority; check current text and recent judgments for exact computation).
– Proof of age: Age is the central fact. Courts accept multiple forms of proof: birth certificate, school records, Aadhaar, passport, matriculation certificates, hospital records, affidavit evidence. For family-law challenges, corroborative evidence (admissions in marriage documents, witness testimony, photographs, invitations, priest’s statement) is critical. Cross-examine the adversary’s documentary evidence robustly where age is disputed.
– Intersection with sexual offences law (POCSO) and IPC:
– Marriage to a girl under 18 does not legalise sexual activity: post-2017 jurisprudence (Independent Thought — see below) makes it plain that sexual intercourse with a girl below 18 can amount to rape/sexual offence irrespective of marital status. POCSO prosecutions are independent and can be invoked alongside PCMA complaints.
– When advising victims, explain that consenting language in family/settlement documents does not negate criminal liability under POCSO or PCMA.
– Welfare principle: Courts, especially family and juvenile benches, prioritise the best interest of the child. Remedies will often be shaped by welfare considerations — annulment may be coupled with protective custody, rehabilitation and educational arrangements. Practitioners must present welfare plans and sympathetic evidence.

Concrete examples (practice vignettes)
– Example 1 — Preventive injunction: CMPO or guardian learns a marriage is scheduled for a 17-year-old girl. File an urgent application under PCMA (or to magistrate under cr.p.c. for injunction) attaching school records and a birth certificate, seek an interim injunction restraining solemnisation and protective custody. Have local police and child welfare committee (CWC) informed.
– Example 2 — Post-marriage nullity + POCSO: A 16-year-old girl married and alleges sexual assault by husband. File (a) PCMA petition for nullity and ancillary relief (custody, maintenance), and (b) FIR under POCSO/IPC for sexual offences. Preserve medical and forensic evidence immediately; request medico-legal examination and register POCSO FIR promptly (POCSO has mandatory reporting and timeliness imperatives).
– Example 3 — Evidence battle over age: Opponent produces a school certificate that shows age 18; petitioner has Aadhaar showing 17. Cross-examine school officials about admission record creation, seek handwriting and document experts where necessary, and call independent witnesses (neighbours, relatives) to corroborate birthday celebrations or contemporaneous records.

Landmark Judgments

• Independent Thought v. Union of India (2017) — Supreme Court
• Principle: The Court struck down Exception 2 to Section 375 IPC which had previously excluded sexual intercourse by a man with his wife (where the wife was between 15 and 18 years) from the definition of rape. The judgment held that sexual intercourse with a girl below 18 years is rape notwithstanding marital status; protective statutes such as POCSO and PCMA must not be neutralised by marital exceptions. Practically, this strengthened criminal prosecution possibilities against adult husbands and others who sexually exploit minor brides.
• Anita Kushwaha v. Union of India (2013) — Supreme Court (PIL observations)
• Principle: The Court highlighted the incompatibility between IPC exceptions and protective statutes (like POCSO) and urged legislative correction, underscoring that statutory inconsistencies must yield to child-protective norms. Although the Court deferred to Parliament for legislative amendment, the observations influenced later judicial steps culminating in Independent Thought.

(Practitioners should consult the full reported texts for nuanced ratios and follow-up decisions in their jurisdiction.)

Strategic Considerations for Practitioners

Advising clients and litigation strategy
– Initial assessment checklist:
– Verify ages with primary documents (birth certificate, school records, Aadhaar, passport). If unavailable, obtain affidavits, hospital records and community evidence.
– Identify whether the marriage has been solemnised, registered or only celebrated privately.
– Ascertain presence of sexual activity, coercion or trafficking indicators — triggers for POCSO or anti-trafficking laws.
– Identify perpetrators/facilitators (priest, parents, matchmakers) for criminal liability under PCMA.
– Choosing remedies:
– If the goal is immediate protection/prevention: seek CMPO action and preventive injunctions.
– If marriage already occurred and sexual exploitation is alleged: simultaneously file nullity petition under PCMA and criminal complaint under POCSO/IPC; seek interim custody/protection orders.
– If the client is the minor and wishes to continue married life: counsel on legal consequences, counsel must ensure client’s informed consent and consider welfare options (education, counselling) — courts will scrutinise real choice and may still annul to protect welfare.
– Evidence preservation:
– For POCSO/PCMA prosecution: medical examination, photographs, chats and call records, priest/witness affidavits, marriage invitation, bank transactions (payments to priest/venue), and social media evidence.
– Keep chain of custody intact for physical evidence, and obtain early judicial orders for preservation where necessary.
– Procedural tactics:
– Use CMPOs proactively — they have statutory powers to prevent marriages and to initiate proceedings; they can also coordinate with police and CWCs.
– Apply for interim reliefs (custody, shelter home placement, protective orders) before engaging in lengthy trials.
– Where settlement is proposed by families, advise clients and courts on the inadmissibility of consent where the party is a child; courts will not countenance settlements that nullify prosecutorial interest in serious sexual offences.
– Common pitfalls to avoid:
– Treating age evidence lightly: reliance on a single, easily doctored document can be fatal; corroborate by multiple sources.
– Missing mandatory reporting obligations under POCSO (professionals and institutions must report suspected offences).
– Confusing void and voidable: failing to act within stipulated period to seek nullity may foreclose remedy.
– Ignoring welfare imperative: aggressive criminal prosecutions without welfare planning for the child (education, shelter) risks judicial pushback.
– Underestimating delay issues: protracted delay in filing can be used by adversaries to attack credibility unless adequately explained.

Conclusion

Child marriage litigation in India is a multi-dimensional practice area where statutory law (PCMA), child-welfare norms, criminal law (POCSO, IPC) and family law converge. For successful advocacy practitioners must: (1) prioritize the child’s welfare while pursuing legal remedies, (2) secure and corroborate age proof and contemporaneous evidence, (3) choose the correct procedural vehicle (preventive injunctions, nullity petitions, POCSO/IPC prosecutions) and often pursue them concurrently, and (4) deploy CMPOs and child welfare machinery to obtain practical, on-the-ground protection. Recent jurisprudence — most notably Independent Thought — has significantly strengthened criminal accountability for sexual exploitation of minor brides; the practical consequence is that marriage does not confer immunity from prosecution and courts will treat child welfare as the controlling factor in relief and remedies.