One of the most common and prevelent form of human rights violation in Indian comes in the form of child marriage. This is detrimental to both male and female children but has more grave consequences to the female child. Child marriages lead to premature sexual reltions and early pregnancies which can be disastrous towards the overall development of the child in terms of mental, physical health and educational, employment oppertunities etc.

The theory of factum valet, which allows legality to child marriages in many contexts, controls court judgments in cases of child marriages. The courts end up stressing more on the scriptures of Hindu religion and directory nature of such scriptures of the religion. This paper discusses the parallels between child marriage and courts interpretation of doctrine of factum valet with the help of cases laws and legislative and judicial responses towards the the practice.

Introduction
The doctrine of factum valet comes from a Roman Maxim 'factum valet quod fieri non debuit' and found its way into the Hindu law through the authors of Dayabhanga and recognized by the followers of Mitakshara school.[1] Factum valet means that an act that should not have been done becomes valid when it's done.

The idea that it is based on is that even a hundred texts or laws could not change the fact. [2]In India before the Hindu Marriage Act, 1955 had come into place there was no specific law or regulation that provided guidelines with regards to the validity, capacity, ceremonial requirements etc. of Hindu marriages.

The British governed the personal law in accordance with the Dharmasastra and used the doctrine of factum valet to overcome any contravention that occurred with the breach of any guidelines of the scriptures. It was however used only when a breach had occurred with respect to the texts that were directory in nature and this doctrine could not be held valid or would not be effectual when breach had occurred with respect to mandatory texts.[3]

Causes And Prevalence Of Child Marriage

A child marriage is defined as a marriage that consists of one or both of the parties that are minors or have not attained the legally permisible age, prescribed by the legislature of the country, to get married. In Indian however, child means a boy who has not completed the age of 21 at the time of the marriage and the age of 18 in case of a girl. Despite the detrimental effects of child marriage there is a significant prevelence of the practice in India.

In a study conducted by government bodies such as the NFHS (National Family Health Survey) and DLHS (District Level Household and Facility Survey) over 22 million girls face the happening of child marriage and there is an average growth of 8% anually of the same. [4] This is because parents view their female offspring as liabilities, and the more mature a girl gets, the more likely she is to rebel against her parents' choices, which may result in breaking societal standards, which is not desired by the parents.

So, in order to avoid any embarrassment that might happen due to such an event from occurring, the parents hand over their daughters at a young age for marriage and take the easy way out from facing any such troubles in the future. However the exact time period of the origin of the practice is not known.

Development Of Laws To Prevent Child Marriage

After the first law commission arrived, which brought the Indian Penal Code 1846, it was for the first time that the idea of sexual relatonship with a female of lesser than a set age (10 years) was criminalised. Later in 1891 when there was a death of a girl child of age 11 after she received grievous injuries by sexual intercourse in Queen-Empress vs Hurree Mohun Mythee[5] The age bar was increased from 10 to 12 years.

After several instance in history many changes were made and in the year 1929 the Child Marriage Restraint Act was made which set the age limits to 18 for girls and 21 for boys which has been followed till the present day.

This was also made part of the Hindu Marriage Act, 1955 in section 5 along with various other requirements to have a valid marriage S. 5(iii) in particular talks about the age requirements.[6] On reading the section, child marriage appeares to neither be void or voidalbe, however the act provides penal consequences upon solemnization of a child marriage.

Judicial Intervention In Child Marriages

Judicial decisions have also contributed in the survival of the practice of child marriage till the present day in India. Except for a few judgements, there have been instance where the judiciary has approved of the validity of child marriage. Some judicial decisions are as follows:

Venkatacharyulu v. Rangacharyulu[7], this is an example of a judgement where the judiciary upheld the validity of a child marriage. Here the judgment held that a marriage is not mere a contract and that even if the person married is a minor or is of unsound mind the marriage will be held valid if the marriage rites are duly solemnized.

This position was cleared in the case of Sivanandy v. Bhagwanthyamm[8] where the madras high court pointed out that even though child marriage is prohibited by the Child Marriage Restraint Act they cannot be rendered as invalid. It was held that the marriage of a minor where the rites were duly solemnized was not in contravention of any provision, the bench in the obitor said that the scope of validity of marriage is well beyond that provisions of the act.

In further observation the bench held that:
"A minor's marriage without consent of the guardian can be held to be valid on the application of the doctrine of factum valet". This is an example of how the doctrine of factum valet is relied upon by the judiciary to accord for the validity of a child marriage.

The high court of Himachal Pradesh in Naumi v. Narottam [9]held that child marriages are not invalid as they are neither void or voidable. In Mohinder Kaur v. Major Singh [10]the Punjab and Haryana high court held that "The solemnization of a child marriage is not a bar to a claim for restitution of conjugal rights." .

Another case, P.Venkataramana v. State of Andhra Pradesh[11] where the court held that invalidating such marriage will render the children of such marriages as bastards. In Assosiation for Social Justice & Research v Union of India, the court held that even though the Prohibition of Child Marriage Act, 2006 there still eists some loop holes and thought the practice of child marriage is discouraged it is still not completely banned.

Thus, even after the introduction of the current Act of 2006, loopholes continue to exist despite the fact that legislative and judicial recognition of the legitimacy of child marriage makes it very difficult to carry out the clear mandate of the CMR Act of 1929 and the legal requirements of the HMA of 1955.

Along with such decisions, there are a few instances where the judiciary has taken a different stance discouraging or opposing child marriage. P.A. Sarramma v. G. Ganpataly[12] was a landmark judgment where the court held that a marriage that had one or both the parties as minor should be declared void ab initio and parties need not necessarily go to courts to declare such a historic decision in which the court found that a marriage in which one or both parties are minors should be considered void ab initio and that parties do not need to go to court to declare such marriages void or null.

Katari Subba Rao v. Katari Seetha Mahalakshmi [13]was another judgment that discouraged the practice of marriage between minors and held that a marriage where the girl is not the legally permitted age should not be considered as a marriage at all. A similar essence of prohibiting this evil practice was found in T. Sivakumar v. Inspector of Police[14] in the order passed by Madras high court.

Rights Of Female Child And Reproductive Rights

Marriage in childhood or in early ages has a very adverse effect on the mental and physical status of the child's health especially for female children. Early pregnancies can result not only in health issues but also slow down the economic, educational and social growth of the victim. In an International conference on development of a child spoke about the reproductive rights of a child, it declared reproductive rights as basic rights and concluded that if an individual is not allowed to plan the number of children, spacing and timing of children would be a gross violation of human rights. [15]

In a report published by UNFPA reproductive rights also includes the freedom to choose the partner involved in the marriage and voluntary involvement in the marriage.[16] If such rights are to be violated it would amount to sexual violence and coercion which are prohibited by the Universal Decaration Of Human Rights (UDHR) to which India has ratified as a member state of the UN (United Nation) and the International Covenant On Civil and Political Rights (1966) which mentions that right to concentual and free marriage and to found a family is a civil right. [17]

Therefore forcing a minor into a marriage forceful or without consent amounts to violation of their reproductive and civil right that have a direct toll on their mind and body for the rest of their lives The duty of the State is to prohibit such coercive acts from happening as per the treaties and agreements that India has internationally recognized and undertake adequate measures to help children develop overall by upmost social, physical and mental standards.

Conclusion
Child marriage is a gross violation of the rights of children which curtails the education and employment opportunities from the female child apart from causing mental and physical harm to her. Child marriage is a very complex legal issue with a lot of amendments with regards to legal age to marry and overall question of child marriage being valid or not due to the social paractices and setup that is being followed from centuries.

Despite having criminal punishments for commission and solamnization, child marriage is legal. On the one hand, these criminal consequences limit the spread of this evil practice while judicial rulings, legal loopholes support the practice's factum of validity. This leads to make the phenomenon of child marriage both legally punishable and valid at the same time without any clear cut distinction.

The HMA is based on the unusual legal concept that minors who are married as children by their parents or legal guardians may be subject to penalty. It is worth noting that even civil law dealing to contracts demands that the contractual party be of legal age, otherwise the transaction engaged into by him is void.

When it comes to marriage, Hindu law takes a different approach, and unlike in the event of a contract, the children's agreement to their marriage is inferred, and they are held answerable for the penal consequences. In this regard, the legislation has classified child marriage as a strict liability offence in terms of child responsibility. The Child Marriage Restraint Act of 1929, which penalised people other than the children who were responsible for the solemnization of child marriage, helped to improve the issue slightly. The provisions of the PCM Act of 2006 take the same approach.

Social and political groups have waged a number of reformist initiatives to increase the legal marriage age throughout the past century. Unfortunately, efforts to achieve goals regarding the health and status of girls have turned to more peripheral concerns that hint to future tragedies, such as the country's population explosion.

The only way to combat this problem is to declare child marriages invalid from the start and do away with their legal standing. The eradication of child marriage requires more than just legislative action; it also requires psychological adjustments and a positive social climate where women's reproductive rights are respected and not infringed.

End-Notes:

1. P. K. Menon, Hindu Jurisprudence, 9 INT'l L. 209 (1975).
2. J. Duncan Derrett, Factum Valet: The adventures of a maxim, 7 International and Comparative Law Quarterly 280–302 (1958).
3. Ludo Rocher & Richard W. Lariviere, Jīmūtavūhana's Dāyabhāga and the Maxim Factum Valet, Studies in Hindu Law and Dharmaśāstra 305–314.
4. Child Marriage in India - An Analysis of Available Data, UNICEF, 7 (2012).
5. Queen-Empress vs Hurree Mohun Mythee on 26 July, 1890
6. The Hindu Marriage Act, 1955. S 5(iii)
7. Venkatacharyulu vs Rangacharyulu And Anr. on 18 November, 1890 ILR 14 Mad 316
8. B. Sivanandy vs P. Bhagavathyamma on 18 July, 1963 AIR 1964 Mad 237
9. Smt. Naumi vs Narotam And Anr. on 25 October, 1962 AIR 1963 HP 15
10. Mohinder Kaur vs Major Singh on 28 July, 1971 AIR 1972 P H 184
11. Pinninti Venkataramana And Anr. vs State on 9 August, 1976 AIR 1977 AP 43
12. Panchireddi Appala Suramma Alias ... vs Gadela Ganapatlu on 30 October, 1974 AIR 1975 AP 193
13. Katari Subba Rao vs Katari Seetha Mahalakshmi on 14 June, 1994 AIR 1994 AP 364, 1994 (2) ALT 723, I (1995) DMC 169
14. T.Sivakumar vs The Inspector Of Police on 3 October, 2011
15. Programme of Action - International Conference on Population and development (1994). P 7
16. The Right to Choose: Reproductive rights and health (1997) UNFPA, P.36
17. Universal Declaration of Human Rights (1948). Art 16,17