India is a country with not only a long
history but also a defined pattern of various traditions and laws.
Firstly, during the previous century,
India’s Government tried to solve the deep issue of child marriage across the
state. The main Act adopted,in this sense, is the Child Marriage Restraint Act of 1929. Unfortunately this Act did not
produce the desired results: as a matter of fact, nowadays child marriage is
still present in India.
Since the ineffectiveness of Child
Marriage Restraint Act, a new
legislation, to replace it, was enacted in the form of Prohibition of Child Marriage Actin 2006. This Act has the noble
purporsed to prevent that phenomenon, enhancing punishments of rigorous
imprisonment for two years and/orpenalty of 100,000 Indian rupee.In addition, it
is established the husband could pay the maintenance of the “child-wife”, if he
is a major (more than 21 years old). On the other hand, so if the husband is a
minor, his parents could be designed to pay that maintenance.
One of the most evident weakness of this last
Act is that the legal status of a child marriage is voidable at the option of
the parties. Only, if the consent is obtained by fraud, deceit or if the child
is enticed away from his lawful guardians and if the purpose is to use the
child for trafficking or other immoral wills, the marriage would be invalid.
Having said that, it appears clear that there
is not a total and efficient prohibition of child marriage in India, also
because some remarkable Indian Regions, like for instance Jammu, Kashimere and
The Union territory of Pandicherry, did not sign the Act of 2006.
Secondly, two main problemsare affecting currently the
Country:
1.
The several inconsistencies between different personal laws and secular
law.
2.
The evident lack of effectiveness of the law in general.
As far as it concerned the first issue, it
is possible to analyze briefly some “religious act”:
·
The Hindu Marriage Act,
released in 1956.
Under this Act, only the parties to a
child marriage are punishable, even if they did not consent to the union.
Moreover,it is not provided to punishthe parents or people who solemnised the
marriage. Broadly speaking, a girl can obtain the annulment of her marriage only if she was married off before turning
the age of 15 and if she challenges the marriage before turning 18. There is any
track of the will to not allow the child marriage itself.
·
Muslim Personal Law
First of all, it is necessary claim
that Muslim
code law is not codified in India
and that its provisions are based on the interpretation of Quran by scholars.
Under these Acts, child marriage not has
any limits.Therefore, it is a sort of right to get a child married. However,
the couple has ‘option of puberty’(15 years old), so they can repudiate the
marriage after attaining puberty, only respecting two dictations: they have to
do it before turning 18 and the marriage must has not been consummated.
·
Indian Christian Marriage Act (ICMA)
UnderICMA,
if the marriage is contracted between two minors it is necessary to issue a preliminary
notice 14 days before the marriage. After that period, the parties can go on
with the marriage without the consent of their “guardians”.
·
Others personal laws
Among those, it is a useful considered
both the Parsi Marriage and Divorce Act
(PMDA) where child marriage is totally invalid, even if the Act is silent
regarding age where the provisions for an invalid marriage are listed, and Jewish
law, which is uncodified in India, but it result clear form it that the
marriageable age is the age of puberty, that is 12 years old.
It is possible to sum up this point saying
that currently in India there is an useful “melting pot” of law and habits and
even the judicial trends of the Supreme Court has not clarify this state of
ambiguity yet. This fact is the one reason why there is,no so far, serious and
unique group of law, which defeat child marriage, so far.
The other mentioned problem, or in the
other words the evident lack of effectiveness of the law in general, is deeply
rooted and visible in India society. As everyone knows, one think is having a
rules’ code and another one is enforcing it. Likewise, it has been observed
that the majority of the population has not trust in the institutions in
general. Having said that, the incapability to transform the law in action is
clear.
-Martina
Inter Coordinator
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