Assam crackdown on Child Marriage – What does the law say

Subject : Schemes

Concept :

The Assam Government has arrested over 2,000 men in a state-wide crackdown on child marriages.
Chief Minister Himanta Biswa Sarma said that the police will retrospectively book people who participated in child marriage in the last seven years.
Assam has a high rate of maternal and infant mortality, with child marriage being the primary cause, according to reports by the National Family Health Survey (NFHS).

Men are arrested under which law?

Men who married girls below 14 years of age would be booked under the Protection of Children From Sexual Offences Act, 2012 (commonly known as POCSO Act).
The POCSO Act criminalises sex between a minor and an adult.
The law does not recognize a minor’s consent as valid.
Meanwhile, those marrying girls between 14 and 18 years would be booked under the Prohibition of Child Marriage Act, 2006.

Protection of Children from Sexual Offences (POCSO) Act:

The POCSO Act was enacted in 2012. It criminalises sex between a minor and an adult.
It is a gender-neutral act; it also recognizes that boys can also become victims of sexual violence as well.
It defines a child as someone under the age of 18.
The law does not recognize a minor’s consent as valid.
Section 19 of the POCSO Act imposes a “mandatory reporting obligation” which requires every person who suspects or has knowledge of a sexual offence being committed against a child must report it to the police or the Special Juvenile Police Unit. Failure to do so will result in imprisonment, a fine, or both.
The mandatory reporting obligations also require doctors to report cases where minor girls seek medical services during pregnancies.

Prohibition of Child Marriage Act 2006:

The act says that child marriages are illegal but not void.
They are voidable only when the minor partner asks the court to declare the marriage void.
The Act prescribes 18 years as the minimum marriageable age for women, while for men it is 21 years.
The Act punishes child marriage with imprisonment which may extend to 2 years or with a fine which may extend to Rs 1 lakh or both.
The punishment also extends to anyone who performs or conducts any child marriage.

The debate over the Muslim legal age of marriage under personal law:

Under Muslim personal laws, the marriage of a bride who has attained puberty is legal.
Puberty is presumed on completed at the age of 15 years.
The age gap difference provision between Muslim personal law and special legislation prohibiting child marriages or the sexual activity of minors classifying it as a criminal offence.

Judiciary’s Opinion:

The Supreme Court is currently examining this issue since different High Courts have ruled differently on it.
In January 2013, the Karnataka High Court ruled that the Prohibition of Child Marriage Act will have an overriding effect on the provisions of Muslim personal laws.
Recently, The Punjab and Haryana High Court in a string of rulings has held that a Muslim girl can legally marry after attaining puberty.
In October 2022, the Karnataka High Court quashed a POCSO case against a Muslim man.
He was arrested after a hospital made mandatory disclosures under the law when his pregnant wife, aged 17 years and two months visited a doctor.

Central Government’s Opinion:

In 2021, the Central government sought to introduce the Prevention of Child Marriage (Amendment) Bill 2021, to raise the manageable age for women across all religions, from 18 to 21 years.
However, the Parliament panel examining this is yet to submit its report, after receiving an extension in October 2022.
Ministry of Women & Child Development in 2020 had formed a committee headed by Jaya Jaitly to examine the matter.
The committee submitted a report stating that the marriageable age for women should be increased from 18 to 21 years of age, in light of factors like reproductive health, education, etc.