Ban child betrothals: Supreme Court says marriage fixed during minority of child violates free choice, childhood

Calling for a ban on child betrothals, the Supreme Court on Oct 18 stated that the marriages fixed in the minority of a child have the effect of violating their free choice and childhood. The Court asked the Parliament to consider banning child betrothals by amending the Prohibition of Child Marriage Act (PCMA), 2006.

A three-judge bench presided by Chief Justice of India (CJI) D Y Chandrachud also noted that since the enactment of PCMA, “the prevalence of child marriages in India has halved… from 47% to 27% in 2015-16 and 23.3% in 2019-2021.”

The Court judgment came on a Public Interest Litigation (PIL) by the Society for Enlightenment and Voluntary Action urging steps to check child marriages.

The bench noted, “Marriages fixed in the minority of a child also have the effect of violating their rights to free choice, autonomy, agency, and childhood. It takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency.”

Calling for a ban on child betrothals, it said that “international law such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) stipulates against betrothals of minors” and “Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA.”

The CJI observed, “The issue of the interface of personal laws with the prohibition of child marriage under the PCMA has been a subject of some confusion.”

On child marriages, the Court ruling said, “Girls who are married off early are not only denied their childhood but are also forced into social isolation on account of being cut off from their natal family, friends, and other support systems. They are left to the mercies of their marital home and in-laws and denied their innocence which is native to a meaningful childhood experience.”

“Boys who are married early are forced to take up more responsibilities and are pressured to play the role of a provider to the family, earlier in life. Patriarchy requires members of a marital union to play specific roles. It forces men to play the public role in a marriage and fend for the family by being responsible for its economic and occupational development. Both sexes are adversely affected by forced and early marriage.” it added.

The Court said that though the union government in a note submitted after the judgment had requested it to direct that PCMA prevails over personal law, but Prohibition of Child Marriage (Amendment) Bill 2021, which seeks to amend the PCMA to expressly state it will prevail over various personal laws, was introduced in Parliament on December 21, 2021.

It has been referred for examination to the Department Related Standing Committee on Education, Women, Children, Youth, and Sports.

“The issue, therefore, is pending consideration before the Parliament,” the bench said.