Both the Child
Marriage Restraint
Act and Sec.5(3)
of the Hindu Marriage Act, 1955 lay down completion of twenty-one years of
age by the groom and eighteen years by the bride as a pre requisite for marriage.
The statute declares solemnization of a child marriage a criminal offence. An
adult male marrying a child bride and in case both parties are below the
prescribed age, the persons responsible for solemnization of the marriage are
punishable with imprisonment ranging from fifteen days to six months, along
with fine. Still, the marriage remains legally valid. It is left out of the purview
of sections 11 and 12 of the Hindu Marriage Act, which deal with void and
voidable marriages respectively. The sanctity of a Hindu marriage does not get
diluted merely by its being a criminal offence. But (And) the, trivial nature
of the criminality attached to it is already underscored by the soap bubble
punishment provided for it. Moreover, the offences are bailable and
non-cognizable for the purpose of arrest by the police (Sec.7). The child bride, if she was below fifteen
at the time of marriage, has been conceded a right to repudiate the marriage
and seek Divorce (not annulment of marriage) when she attains the age of
fifteen years but before she is eighteen, under he Hindu Marriage Act
. However, if she is above fifteen (though below the minimum
prescribed age of eighteen years) at the time of marriage, even this right is
denied to her. The validity of a child marriage gets further
statutory recognition under the Indian Penal Code. Sec.375 of the Code defines
the offence of Rape. Sexual intercourse without a woman's consent and in case
she is below sixteen, even with her consent is rape. However, intercourse with
a child-wife above fifteen with or without her consent has been specifically
excluded from the definition. Thus, the Code not only acknowledges that there
can be a child-wife but actually reduces the age of consent for intercourse
with her by one year. Deliberate? Probably not. The fact is that originally,
even the minimum age for marriage of a girl was fixed at fifteen. While the
Child Marriage Restraint Act and the Hindu Marriage Act were amended in 1978,
the worthy bureaucrats and great leaders of the nation forgot to make the
corresponding changes in the Penal Code. And now, it will take some vigorous shaking
for them to awaken to the crying need.The comedy of statutory errors does not end here. A
person committing Rape upon any other woman can be punished with imprisonment
for life. The minimum punishment a court has to award is imprisonment for seven
years along with fine . However, a person who rapes his own wife
above fifteen years of age commits no offence. And, even if she is below
fifteen, but above twelve, the husband - though acknowledged as a rapist, is
entitled to a grand special concession in punishment. The maximum punishment
prescribed for him is imprisonment for two years OR fine or both.
This being the position in substantive law, the
Criminal Procedure Code also does not lag behind in its invidious treatment
towards married women (especially, the child-wife). While in other cases, rape
is a cognizable and non-bailable offence, rape of a wife above twelve years of
age is non-cognizable and bailable (scheduled 1, Cr.PC). Rape of
a child wife aged above twelve years attracts punishment up to two years of
imprisonment and hence, the period of limitation for the court to take
cognizance of the offence would be three years (Sec 468(2)(c)). However, a
further overriding concession is provided by Sec 198(6), which reduces even
this period to a mere one year. Not only this, this highly benevolent provision
(for an offender of child marriage) even obliterates the cut-off mark placed at
twelve years by Sec 376(1) IPC. The effect of this is that the period of
limitation for taking cognizance of rape of a minor wife gets reduced to one
year even in case the wife is below twelve years of age, which is otherwise an
offence punishable with imprisonment for life.
Perhaps the funniest statutory provision in the
context of child marriages is Sec 6 of the Hindu Minority and Guardianship act,
1956. Subsection (a) provides that the natural guardian of a minor boy or
unmarried girl shall be his or her father and after him, the mother. As per
subsection(c), guardian of a married girl is her husband. This applies even if
both husband and wife are minors. : A child wife forced
into the sacred matrimony before she was fifteen years of age is entitled to
repudiate the marriage when she turns fifteen. Consequently, she should be
entitled to refuse sex (till now, it was a criminal offence, though of varying
gravity, to have sexual intercourse with her). However, till she attains a
divorce on this ground, which takes years together, she remains the legally
wedded wife. During this period, if the husband (or is he?) forcibly takes her
away and compels her to submit to sex even by brute physical force, he commits
no offence. He remains her guardian and hence, cannot be said to have kidnapped
her out of his own guardianship. And, sexual intercourse with one's own wife,
with or without her consent does not amount to rape.Who are the Society, the Government, the
Constitution, the legislature and the courts fooling? And why?( "AURAT HONE KI SAZA,ARVIND JAIN, 1994,RAJKAMAL PRAKASHAN PVT.LTD.,NEW DELHI)
More abstracts about the CHILD MARRIAGE:LAWS & FLAWS