Oldest Religious Laws On Child Marriage

• In the Vedic age, Vedas such as Rig Veda and Atharva Veda have verses indicating that girls married after attaining puberty and were of mature age. It mentioned that marriage should take place between two adults after attaining puberty.^{1, 2}
• According to Dharmashastra, a girl should be married after attaining puberty.³
• Manusmriti (the oldest law code) stated that a father should arrange the marriage of a girl child within 3 years after she reaches puberty. If he fails, the girl can search for a husband herself.⁴
• Christian Canon Law forbade the marriage of a girl before the onset of puberty.^{5, 6}
• In Israel, Jewish scholars also strictly denied the marriage of a child before puberty. In Judaism, the minimum age for marriage was 12 years and 1 day for girls, and boys were to attain puberty.¹

Statutory Provisions on Child Marriage

Provisions in England

• The age of marriage statute first appeared in secular law in 1275 in England as part of the rape law. The statute (Westminster) made it a misdemeanor to "ravish" a "maiden within age", interpreted by Sir Edward Coke as 12 years.
• A second law in 1576 imposed more severe punishments for acts involving girls under the age of 10.
• In 1875, England raised the age to 13 years. Sexual intercourse with a girl younger than 13 was a felony. Near the end of the 18th century, other European nations began enacting age of consent laws.²

Enactments Against Child Marriage in India Prior to Independence

• Indian Penal Code of 1860
• The Native Marriage Act (or Civil Marriage Act)
• Enactment of 1891
• Gour's Bill

What is Child Marriage?

Child marriage refers to any formal marriage or informal union between a child under the age of 18 and an adult or another child.³ Before independence, India was under British rule. Indian women and children suffered from many social evils, one of them being child marriage. The uneducated, backward Indian society became the alma mater of a defeated mindset. To protect children from early marriage, the British government enacted statutes with help from Indian social activists.

Indian Penal Code of 1860

British reformers in the 19th century attempted to prevent child prostitution by increasing the age of sexual consent.⁴ The prevalence of child marriage among Hindus led colonial authorities to apply the age of consent to both married and unmarried girls. As a result, they created the crime of marital rape, which didn't exist in British law. The Indian Penal Code 1860 set the age of consent and marriage at 10 years.

The Native Marriage Act (or Civil Marriage Act) 1872

Legislative action in 1872 prohibited child marriage but had limited impact, as the Act did not apply to Hindus, Muslims, or other recognized faiths.⁵

Age of Consent Bill, 1891

This bill raised the age of consent to 11 for girls in marriage and to 12 for those not in marriage. The enactment aimed to discourage infant marriages.⁶

References

1. Singh, Upinder (2008). A History of Ancient and Early Medieval India: From the Stone Age to the 12th Century. Pearson Education India. p. 420.
2. Vedic Index of Names and Subjects: London: Murray. 1912. p. 474.
3. Singh, Upinder (2008). p. 420.
4. Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, ISBN 978-0521877046, p. 14
5. Canon law: a set of ordinances and regulations made by church leadership.
6. Burn, Richard; Tyrwhitt, Robert; Phillimore, Robert. The Ecclesiastical Law.

Gour's Bill 1924:

• In 1924, Sir Hari Singh Gour, a barrister from the Central Provinces, brought the age of consent issue back into the Legislature with a similar proposal to raise the minimum age from 12 to 14 years for girls.
• After amendments and the appointment of a select committee, Gour's Bill was passed to raise the age of consent within marriage to 13 for girls in 1925.
• This meant that the age of consent was only increased by a year, and since there was no uniform practice of registering births, it remained difficult to prove the age of girls.
   

Child Marriage Restraint Act, 1929 (Sharda Act):

• To eradicate the evil of child marriage, the Child Marriage Restraint Act was passed in 1929.
   
• The object was to eliminate the special evil which had the potential dangers to the life and health of a female child, who could not withstand the stress and strains of married life and to avoid early deaths of such minor mothers.
   
• It extended to the whole of India except the State of Jammu and Kashmir and applied to all citizens of India within and beyond India.
• The Act was passed on 28 September 1929, in the Imperial Legislative Council of India. It fixed the age of marriage for girls at 14 years and boys at 18 years, which was later amended to 18 for girls and 21 for boys.
   
• It is popularly known as the Sharda Act, after its sponsor Harbilas Sharda. It came into effect on 1 April 1930 and applied to all of British India.
   
• Territorial extent: Whole of India
• Enacted by: Imperial Legislative Council
• Enacted: 28 September 1929
• Commenced: 29 September 1929
• Repealed by: Act of 2007
• Total Sections: 12
• In Sushila Gothala v. State of Rajasthan, the court held that the minimum age of marriage for a girl and boy is 18 and 21 years respectively.

Child Marriage Restraint Amendment Act 1978:

• This Act further amended the Child Marriage Restraint Act, 1929 and made consequential amendments in the Indian Christian Marriage Act, 1872 and the Hindu Marriage Act, 1955.

In Indian Christian Marriage Act, 1872:

• Section 6:
  1. In condition number (1), for the words "eighteen years" and "fifteen years", the words "twenty-one years" and "eighteen years" shall respectively be substituted.
  2. The provision shall be omitted.
      

In Hindu Marriage Act, 1955:

• Section 5:
  1. In clause (iii), for the words "eighteen years" and "fifteen years", the words "twenty-one years" and "eighteen years" shall be substituted.
  2. Clause (ii) shall be omitted.
• Section 6 shall be omitted.
• Section 12(1)(c): For the words and figure "is required under subsection 5", the words, figure and bracket "required under section 5 as it stood immediately before the commencement of Child Marriage Restraint Amendment Act 1978" shall be substituted.
   
• Section 18:
  1. For the brackets, letters and word "[v] and [vi]" the words, brackets and letter "[v]" shall be substituted.
  2. In clause [b], the word "and" occurring at the end shall be omitted.
  3. Clause [c] shall be omitted.
      

The Prohibition of Child Marriage Act, 2006:

• This Act replaced the Child Marriage Restraint Act, 1929. The object of the Act is to prohibit solemnization of child marriages and connected incidental matters.
• The Act presently allows for child marriages between a boy under 21 years and a girl under 18 years of age.
• Defines a child as a male below 21 years and a female below 18 years.
• UNICEF defines child marriage as marriage before 18 years of age and considers the practice a violation of human rights.
• The Act provides for maintenance of the girl child. If the husband is a major, he is liable. If a minor, his parents are liable.
• The legal status of a child marriage is voidable at the option of the parties. If consent is obtained by fraud, deceit, or if the child is enticed away for trafficking or immoral purposes, the marriage is void.
• The Act provides for the appointment of a Child Marriage Officer to prevent child marriages and spread awareness.
   

Child Marriage Restraint Amendment Bill (Proposed):

• The minimum age for marriage is 18 for girls and 21 for boys. There is increasing demand to raise the minimum age for girls.
• In Budget 2020-21, Finance Minister Nirmala Sitharaman announced revising the legal age of marriage for women from 18 to 21 years and the constitution of a task force to present recommendations.
• The Centre set up a 10-member task force headed by Jaya Jaitley to examine:
  • Age of motherhood
  • Imperatives of lowering maternal mortality rate
  • Improvement of nutritional levels
• The committee was to suggest legislative changes with a timeline. Union Minister Smriti Irani confirmed the proposed NITI Aayog policy on the matter.
• The 1929 Act fixed the age at 14 for girls and 18 for boys. In 1978, it was amended to 18 for women and 21 for men. The government aims to reduce maternal mortality, among the highest in the world.

End Notes:

1. Data by Ministry of women and child development.
2. Gulati, Leela (August 1976). Age of Marriage of Women and Population Growth: The Kerala Experience. Economic and Political Weekly. Sameeksha Trust. 11 (31/33): 1225, 1227, 1229, 1231, 1233–1234. JSTOR 4364831.
3. Forbes, Geraldin H., Women in Modern India, Cambridge University Press, 1998.
4. Bhawan, Himanshi (15 September 2006). Child brides may declare marriage void. The Times of India. NEW DELHI. Archived from the original on 16 September 2011. Retrieved 23 June 2011.
5. ://wcd.nic.in/child-marriage-restraint-act-1929-19-1929
6. 2002 (5) WLN 246
7. Egazette.nic.in
8. Section 21 of the Prohibition of Child Marriage Act India
9. Exception of the Adoption Act of 1952 [Act 253] which defines a child as a person below 21 years of age. The following legislations are of relevance:
   • (a) Under the Age of Majority Act 1971 [Act 21], the age of majority is eighteen years.
10. Child Marriage India. Childlineindia.org.in. Retrieved 24 February 2017.
11. Section 4 of the Child Marriage Act 2006.
12. Section 3 of the Prohibition of Child Marriage Act.
13. Section 13 of the Prohibition of Child Marriage Act.
14. Economic Times.
15. Commentaries on Union Budget 2020–21: Indian Express.

References:

1. MAJORITY - JewishEncyclopedia.com.
2. Stephen Robertson, "Age of Consent Laws.
3. https://www.unicef.org/protection/child-marriage
4. Marriage Customs of the World by John P. Monger, 2004.
5. Child Marriage Seminar Paper by Prof. Satya T.
6. Stephen Robertson, Age of Consent Law, in Children and Youth in History, Item #230.
7. Sir Hari Singh Gour (1870–1949) | Capturing Cambridge.