That child marriage is an egregious violation of human rights is incontestable; nor should we seek to justify it on grounds of parental consent, social norms or multiculturalism. The state is duty-bound to protect helpless minors against such socially-mandated atrocities, but its interventions must take into account the subsequent fate of the victims, and have a clear legal basis.
In the on-going crackdown on child marriage in Assam, the most contentious issue is whether action against the victims’ parents and spouses under the Protection of Children from Sexual Offences (POSCO) Act 2012 and the Prohibition of Child Marriage Act 2006, is in the best interests of the child/adolescent.
Few narratives capture the horror of child marriage with the raw vividity of I, Phoolan Devi, the autobiography of India’s ‘bandit queen’. The book offers some useful perspectives on the tyranny of social traditions.
Readers cannot fail to be moved by the story of a little girl subjected to sadistic beatings, sexual assaults and burns by her much older husband, or to conclude that child marriage is so heinous a social evil that all those who participate in it must be severely punished. There is, however, a note of ambiguity in the shape of Phoolan’s father, Devidin.
Simultaneously a perpetrator and a victim, the father is abused by some members of the village community for having married his daughter to an immoral lout, and vilified by others for trying to protect her. He grieves for her, but lacks the will to support her in defiance of social norms. Devidin’s agony is stark, and his helplessness profound: “all he could do was weep hopelessly, harassed from every side”.
But for all Devidin’s abject failures and repeated insistence that she return to her husband’s house of horrors for another round of torture, Phoolan knows that he loves her. Certainly, she would not have wanted him jailed and prosecuted, as the law demands.
Many of the minors “rescued” from marriages by the Assamese authorities are bound to suffer trauma if a parent is incarcerated. Children are particularly vulnerable to self-blame in troubled situations, even where they are the victims. And when the sole earner in the family is behind bars, the problem is exacerbated.
This is not to argue against the need for exemplary action. Thirty years ago, a woman who opposed child marriage in her village in Rajasthan was gang-raped. The Bhanwari Devi case provoked widespread outrage, but the practice is still common in the state. Over a quarter of women who are now in their early twenties were married when they were minors, the National Family Health Survey noted last year.
Clearly, while child marriage is on the decline, progress is painfully slow. Waiting on “women’s empowerment” to fix the problem is the path of least resistance. Pro-active measures are called for, but those that impact the child’s future are best avoided. One option could be unleashing the full wrath of law on grooms who were adults (over 21 years of age) at the time of marriage, while fining the parents of the minors. Where the minor is left destitute, the groom’s parents should be obliged to provide financial support and if they cannot do so, the state must.
The legal framework requires clarity. Law-enforcement agencies in Assam have made no distinction between the majority and minority communities. In the recent past, multiple rulings of the Punjab & Haryana High Court and the Delhi High Court have held that a minor girl who has attained puberty can be married under Muslim personal law, regardless of existing statutes for the protection of minors.
The Kerala High Court, on the other hand, ruled last year that POSCO applies even to a marriage involving a Muslim minor. The Karnataka High Court passed a similar order. Meanwhile, the Uttarakhand High Court is hearing a public interest litigation (PIL) against the practice of marrying off underage Muslim girls.
In October last year, the Punjab & Haryana High Court ruled in favour of a 16-year-old Muslim girl who had contracted a runaway marriage with a 26-year-old, and had petitioned the court to be allowed to live with her spouse. The National Commission for Protection of Child Rights (NCPCR) appealed that ruling in the Supreme Court, which last month agreed to take up the matter. It might have been prudent to await the apex court’s clarification before initiating a blitzkrieg against child marriage.
Rajasthan threw up another legal issue, when it sought to make registration of child marriages mandatory. A hue and cry over this backdoor legitimisation of unions banned under the Prohibition of Child Marriage statute forced it to withdraw the legislation. In its defence, the government stated that it had only sought to register the marriages, not legalise them!
This raises the question of why child marriages are not automatically null and void, but require a pronouncement to that effect by a court of law? Specially as POSCO criminalises sexual intercourse with a minor even within the confines of a marriage, ie with implied consent.
Perspectives on child marriage and the “age of consent” differ widely, even in the judiciary. But the law cannot be more honoured in the breach than in the observance. So, it is high time that their lordships lay out a crystal-clear and incrotrovertible legal template against child marriage for the state to follow.
Bhavdeep Kang is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author
