Child marriage legal history and present prevention

Child marriage legal history and present prevention

The history of child marriage under British rule reveals a legal system in which the authority of the family often carried greater weight than the will of the child. At the beginning of the nineteenth century, the figure of the child widow exposed a disturbing question: could a girl, already bound by marriage, be considered capable of consenting to sati, the practice of widow immolation? The prohibition of sati in 1829 did not resolve the condition of child widows. As the debates on widow remarriage unfolded, concern for their suffering existed alongside a desire to contain their sexuality within marriage. 

The child wife could become a child widow, only to be placed once again under the discipline of marriage. The case of Helen Gertrude Huchi exposed the distance between a girl’s will and the protection offered by colonial law. Married to her cousin against her wishes while still a minor, Huchi later converted to Christianity and challenged the binding nature of her marriage. Her claim was rejected by the courts and, in 1873, by the Governor General. Colonial authorities treated the father’s power to arrange an infant daughter’s marriage as fundamental to the Hindu family. To weaken that marriage, they argued, would interfere with Hindu religious liberty. Huchi’s refusal carried less legal weight than the institution imposed upon her.. As scholars argue, colonial authorities privileged an orthodox interpretation of Hindu marriage as indissoluble, despite the existence of diverse customs, including divorce and remarriage in some communities. Law gave that interpretation the force of the state. 

The Rukhmabai case, heard between 1885 and 1888, again placed a woman’s capacity to reject a childhood marriage before the courts. Soon afterwards, the Phulmoni case contributed to the controversy surrounding the Age of Consent Act of 1891. Age was becoming a legal boundary, yet the question remained: when would a child’s own will become a matter of law? The Child Marriage Restraint Act of 1929 marked a first legislative attempt to restrain child marriage in British India. Yet the protection it offered had a devastating limit: the minimum age for girls was set at fourteen. A girl who had barely entered adolescence could still be given in marriage within the boundaries of the law. The Act introduced penalties for certain adults involved in child marriages, but it did not automatically invalidate the marriages themselves. The institution remained standing, even when those responsible could be punished.

After independence, the legal boundary moved gradually. In 1949, the minimum age for girls under the 1929 Act was raised from fourteen to fifteen. The Special Marriage Act of 1954 established eighteen for women and twenty-one for men within its framework. In 1978, amendments to the child marriage law raised the general thresholds to eighteen and twenty-one. The law had begun to recognise that childhood could not be surrendered to marriage at fourteen or fifteen; nevertheless, the distance between legislation and implementation remained

A more substantial change came with the Prohibition of Child Marriage Act, 2006, which replaced the 1929 law and came into force in 2007. It defines a child marriage as one involving a woman under eighteen or a man under twenty-one. The Act provides penalties for an adult man who marries a child, for those who conduct a child marriage, and for those responsible for a child who promote or permit it. It also empowers courts to prevent a marriage before it takes place and requires states to appoint Child 

Marriage Prohibition Officers. Yet criminalisation does not mean that every child marriage is automatically void. Under the central Act, a marriage is generally voidable: the person who was a child at the time must seek its annulment through a court. 

Certain marriages, including those involving specified forms of force, trafficking or sale, are void. The law also allows courts to order maintenance and residence for the female party. This distinction has consequences far beyond legal terminology. A girl may be trapped in a marriage in which she is exposed to rape, sexual and physical violence, coercion, and exploitation. Those who arranged or conducted the marriage may face criminal penalties, while the responsibility of seeking its annulment can still fall upon the person they were supposed to protect. Her childhood is not merely shortened: her body, her safety, and her ability to decide the course of her own life may be placed under someone else’s control.

A law can prohibit child marriage, but protection begins when someone is able to recognise the danger and act. In India, this responsibility is shared between national and state authorities, police, child protection services, courts, and civil society. The Ministry of Women and Child Development coordinates national child protection initiatives, including Mission Vatsalya and the campaign Bal Vivah Mukt Bharat. At the local level, Child Marriage Prohibition Officers are responsible for preventing child marriages, gathering evidence, and raising awareness. When a child is in immediate danger, 112 can connect callers to emergency services. The Child Helpline, 1098, is available around the clock for children in crisis and can be contacted by a child or a concerned adult. It also responds to reports of impending child marriages, coordinating with police and child protection authorities. An anticipated marriage can be reported through the government’s Bal Vivah Mukt Bharat portal, which also provides information about Child Marriage Prohibition Officers. Sexual violence must also be reported. The Protection of Children from Sexual Offences Act, 2012, provides a framework for addressing sexual assault and other sexual offences against children. A person who knows of, or suspects, an offence under the Act must report it to the local police or the Special Juvenile Police Unit. Online sexual exploitation can be reported through the National Cyber Crime Reporting Portal; the National Commission for 

Protection of Child Rights also accepts complaints concerning child sexual abuse. Protection must continue after a report is made: Child Welfare Committees and district child protection services can help secure care, while One Stop Centres provide access to medical assistance, psychological support, legal aid, and temporary shelter. Free legal assistance is available through the National Legal Services Authority at 15100. The responsibility to protect a girl cannot end with the interruption of a ceremony: it must extend to her safety, recovery, education, and power to determine her own future.

-Valentina