SOCIETY FOR ENLIGHTENMENT AND VOLUNTARY ACTION & ANR. v. UNION OF INDIA & ORS

Citation: Writ Petition (C) No. 1234 of 2017

Court: Allahabad High Court (Lucknow Bench)

Bench: [Dr Dhananjaya Y Chandrachud

Case summary

Sought issuance of effective guidelines inter alia for stronger enforcement mechanisms, awareness

Judgment text

SUPREME COURT OF INDIA Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. [2024] 10 S. C. R. 1513 : 2024 INSC 790 Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. (Writ Petition (C) No. 1234 of 2017) 18 October 2024 [Dr Dhananjaya Y Chandrachud,* CJI, J. B. Pardiwala and Manoj Misra, JJ. ] Issue for Consideration Petitioner, an NGO raised significant concerns as regards prevelance of child marriages and failure of authorities to prevent them despite the enactment of the Prohibition of Child Marriage Act, 2006. Sought issuance of effective guidelines inter alia for stronger enforcement mechanisms, awareness programs, appointment of Child Marriage Prohibition Officers, and comprehensive support systems for child brides.

Headnotes† Child Marriage - Guidelines issued for effective implementation of the Prohibition of Child Marriage Act, 2006 (PCMA) and achieving the elimination of child marriage: Held: The success of PCMA, a social legislation requires collective efforts of all stakeholders - Need for intersectional approach, multi- sectoral coordination, preventive and community-driven strategies to ensure complete eradication of child marriages, emphasized - Guidelines issued with respect to-(1) Legal enforcement pertaining to appointment and accountability of Child Marriage Prohibition Officers (CMPO); District-Level responsibility for active prevention of child marriages; Establishment of a Specialized Police Unit and Special Child Marriage Prohibition Unit - (2) Judicial measures such as empowering Magistrates to take suo moto action and issue preventive injunctions; Exploration of Special FastTrack Courts for child marriage cases; Mandatory action against neglectful Public Servants - (3) Community involvement which includes Annual action plans and Community-Centric Capacity Building; Adoption of the Child Marriage Free Village Initiative - (4) Awareness Campaigns: Led by CMPOs in Schools, Religious * Author 1514 Institutions, Panchayats; Integrating comprehensive sexuality and rights education into school curricula; Educational materials and community awareness tools; Targeted community awareness campaigns; Empowerment programs for girls and young women; Helpline awareness and reporting mechanisms - (5) Training/ Capacity Building for Teachers and School Administrators, Training for Community Health Workers and Educators, Law Enforcement, Judicial Officers and Health Care Providers; as also Empowerment of Local Leaders and Community Influencers; Engagement with Non-Governmental Organizations (NGOs) - (6) Educational and Social Support like scholarships, educational incentive programs specifically targeted at girls at risk of child marriage; Social Welfare Programs; Convergence and continuity of services - (7) Monitoring and Accountability which inter alia includes formulation of Standard Operating Procedure by NALSA, Ministry of Women and Child Development, in consultation with State Child Protection Societies, National Commission for protection of child rights; Monitoring also includes role of Panchayats and local leaders; Individual care plans for At-Risk girls - (8) Technology-driven initiatives for reporting child marriage such as creation of a Centralized Reporting Portal; Technology-Driven Support Services; Monitoring of Attendance - (9) Funding in form of Dedicated annual budget allocation by relevant ministries of the Union Government for each State aimed at preventing child marriage and supporting affected individuals; Institutionalization of Juvenile Justice Fund; Compensation for Girls opting out of marriage; Identification and support for At-Risk Children.

[Para 211] Prohibition of Child Marriage Act, 2006 (PCMA) vis-à-vis Personal laws - PCMA, if overrides various personal laws governing marriage: Held: Issue is pending consideration before Parliament as the Prohibition of Child Marriage (Amending) Bill 2021 introduced in Parliament sought amendment of PCMA to expressly state the overriding effect of the statute over various personal laws. [Para 214] Suggestions by Supreme Court - Outlawing of child betrothals: Held: Child betrothals, marriages fixed in the minority of a child undermines and violates their rights to free choice, autonomy, agency and childhood - Though Prohibition of Child Marriage Act, 2006 prohibits child marriages, it does not stipulate on betrothals - Parliament may consider outlawing child betrothals. [Para 215] Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors.

Child marriage - Constitutional guarantees against - Right to self-determination: choice, autonomy and sexuality of children; Right to health; Right to childhood: Right to education and development - Explained - Evils of child marriage, enumerated: Held: Child marriage deprives children of their agency, autonomy, right to sexuality and right to enjoy their childhood - The right to life and liberty enshrined in Article 21 of the Constitution is violated by the commission of child marriage - Both sexes are adversely affected by forced and early marriage - Constitution recognises the right a person has over all aspects of their sexuality - Men and women alike are victimised by compulsory heterosexuality - In child marriage, their limited agency within heteropatriarchy is also taken away in infancy - Marrying in childhood objectifies the child - Child marriage imposes mature burdens on children who are not physically or mentally prepared to comprehend the significance of marriage - The right to choice and autonomy of a woman who is married as a child is violated by the system of child marriage - Minor girls forced to make conjugal relations experience post- traumatic stress and depression emanating from sexual abuse by an elder partner - Right to choice and autonomy includes the right to reproductive freedom - The right to reproductive freedom is part of the rights wherein the right to the health of a person also finds place - Constitution recognises the right to health as an inalienable aspect of the right to life and personal liberty under Article 21 - Child marriage inflicts tangible and lifelong physical and mental injuries to its members - Right to health is made illusory by all accounts within such an institution - The effect of child marriage denies women their health which is vital to lead a dignified life - Marriage for most women in patriarchal societies is an announcement of educational conclusion - The minority of a woman's age at the time of her marriage has a heightened impact on her education - Right to primary education is a fundamental right expressly enshrined under Article 21-A - Issue as regards approach towards boys in child marriage also ought to be taken into account - The right to childhood belongs to all sexes - Primary, sexual and life enhancing education is integral to the right to childhood.

[Paras 171, 173, 176-178, 184, 188, 191, 197] Prohibition of Child Marriage Act, 2006 - Scheme of the Act - ss. 3-7, 9-12, 15, 13, 14, 16 - Protection of women married as girls, children born in child marriages - Maintenance and residence of the female contracting party; custody and maintenance of children of a child marriage - Solemnization of 1516 child marriages - Punishment - Preventive measures against child marriages, deterrence and prevention - Injunctions against child marriages - Elucidated - Appointment of Child Marriage Prohibition Officers (CMPOs), appointment of exclusive CMPOs in each district directed. Prohibition of Child Marriage Act, 2006 - s. 9 - Punishment for male adult marrying a child - Penalizing the groom based on higher agency he possesses in the marriage as against the girl: Held: Under s.

9, the Court is empowered to penalise an accused with imprisonment or a fine or both - Punishment can be imposed based on the gravity of the offence, the circumstance of the marriage and the socio-economic power of the male over his child bride - Further, despite the age of majority for a man to enter into a marriage being twenty-one under s. 2(a), his criminal liability for entering into a child marriage with a minor woman begins at eighteen - Under s. 9, a woman, regardless of her age is not liable for entering into a child marriage and a man above the age of eighteen but under the age of twenty one is liable for marrying a girl who is under the age of eighteen - The legislative intent behind making a groom liable for entering into child marriage is to recognise the relative control of the agency that a groom has in relation to his marriage as opposed to a girl. [Paras 52, 55] Prohibition of Child Marriage Act 2006 - ss.

10, 11 - Scope - Punishment for solemnising a child marriage - Punishment for promoting or permitting solemnisation of child marriages: Held: The Act punishes three classes of persons - An adult groom in a child marriage (s. 9); persons involved in the solemnization of child marriage (s. 10) and; persons promoting or permitting the solemnization of child marriage (s. 11) - s. 10 is expansive and governs any accomplice to the commission of child marriage including the priest who performs the marriage, any family member, relative or person at whose direction the marriage takes place or anyone who abets it - Further, under s. 11 any person having charge of the child, who promotes or permits a child marriage or fails to prevent it is liable to rigorous imprisonment which may extend to two years and a fine - The person liable under s.

11 may be the parents of the child or a guardian or any other person or organisation - The means by which a person may have the charge of the child is immaterial as the provision stipulates that the charge may be 'lawful or unlawful' - Thus, the section penalises any person or organisation involved in a child marriage - Its expansive scope Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. allows prosecution of any person who may have unlawfully taken the custody of a child and thereafter promoted, permitted or failed to prevent the child marriage - s. 11 also deals with organisations, such as orphanages or schools or hostels, which may have the charge of a child and under whose watch the child is married off. [Para 52, 58, 60] Prohibition of Child Marriage Act 2006 - s. 11 - Intention - Explained. Prohibition of Child Marriage Act 2006 - s. 12 - Child marriage when void ab initio - Stated. Prohibition of Child Marriage Act, 2006 - s.

11(2) - Presumption of negligence - Nature of presumption: Held: s. 11(2) raises a presumption - Any person in charge of a child who was married off, is presumed to have negligently failed to prevent the child marriage - The presumption is however, rebuttable and may be rebutted by proving that the person could not have prevented the marriage or failed at preventing it, despite their best efforts - This principle is only applicable to an offence u/s. 11. [Para 62] Child marriage - Laws governing child rights - Protective legislations such as Protection of Children from Sexual Offences Act, 2012 - Juvenile Justice (Care and Protection of Children) Act, 2015 - ss. 2(14), 27, 106, 107 - Commissions for Protection of Child Rights Act 2005 - ss. 2(b), 13, 24 - Legal Services Authorities Act 1987 - s. 12 - Protective framework of the Acts: Held: 1. The principles of the POCSO Act are directly threatened by the commission of child marriage.

The intent of the POCSO Act is to protect children from sexual advances. Child marriage on the other hand is an institution which puts minor girls directly in harm's way. Under the POCSO Act, a man is liable to punishment for having sex with his minor wife. Nevertheless, the existence of child marriage and its continued recognition in the law as a valid (and voidable) marriage threatens the dignity of children. The institution of child marriage, more directly than any other institution, stipulates for the sexual abuse of child brides by design. [Para 81] 2. 1 The Juvenile Justice (Care and Protection of Children) Act provides a comprehensive framework to deal with children in need of care and protection (CNCP). Section 27 of the JJ Act establishes 1518 the Child Welfare Committee (CWC) to inter alia handle and resolve complaints in relation to children who are in need of care.

The CWC's role is to ensure the children's basic needs are met and that they are protected, treated, developed, and rehabilitated. Therefore, children who are married off are required to be produced before the CWC so that they may be rehabilitated and taken care of. As a beneficial social legislation aimed at children, the society and units constituted under the JJ Act are required to proactively identify remedies and strategies for the rehabilitation and protection of victims of child marriages. [Para 85] 2. 2 Children who are at risk of marriage at the hands of their family or relatives are expressly recognised as CNCP under the Act. The JJ Act further prescribes for their protection, rehabilitation and development. While victims of child marriage are protected under the JJ Act, it further strengthens the effort to eliminate child marriages by creating a trained and skilled force of police officers to deal with children.

The Special Juvenile Police Units (SJPUs) are marked by their unique ability to inject humanity in law enforcement. The task of law enforcement officers, the police in particular, has traditionally been associated by the State's ability to compel compliance to its norms. The formation of SJPUs reflects a refreshing outlook toward police work, one which is imperative in liberal democracies' treatment of vulnerable groups. Law with a touch of humanity and law enforcement with a boost of sensitivity and empathy are the cornerstone of the law on children. [Para 88] 3. 1 The effective implementation of the Prohibition of Child Marriage Act, 2006 (PCMA) also falls within the subject matter of the National Commission for the protection of Child Rights (NCPCR) and State Commissions for the protection of Child Rights (SCPCR) established under Commissions for Protection of Child Rights Act 2005. [Para 92] 3.

2 The Ministry of Women and Child Development (MWCD) and the NCPCR have been actively engaged in raising awareness about the negative consequences of child marriage and strengthening the enforcement of the PCMA. In recent years, the NCPCR has conducted multiple review meetings and collaborated with a broad spectrum of stakeholders, including District Magistrates, CMPOs, Child Development Project Officers (CDPOs), Child Welfare Committee (CWCs), and Anganwadi Workers. These initiatives have aimed to create a coordinated approach to tackling child marriage at the grassroots level. [Para 93] Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. 3. 3 The NCPCR has also concentrated on identifying children at risk by compiling school-wise data on those who have dropped out or exhibit irregular attendance. In 2023-2024, the NCPCR identified 645,673 children across India who were either out of school or at risk of early marriage.

The Commission directed district authorities to pinpoint vulnerable children from this list, prevent their marriages, and ensure proper rehabilitation for those affected. While these awareness campaigns and data-driven interventions have been vital, it is evident that awareness alone is not enough to prevent child marriages effectively. Enforcement of laws, community engagement, and support systems for vulnerable children are equally crucial. [Para 94] 4. Section 12(c) of the Legal Services Authorities Act 1987 stipulates that any child who has to file or defend a case is entitled to legal services. The Legal Services Authorities are therefore under an obligation under the Act to assist minors who file cases under the PCMA to exercise their statutory rights.

The National Legal Services Authority, State Legal Services Authority, District Legal Services Authorities, Taluk Legal Services Committees, High Court Legal Services Committees, and Supreme Court Legal Services Committee have formulated various schemes to be followed while they deal with legal services to children. [Para 96] Child Marriage - Schemes, Policies formulated by the Union Government also, to empower young girls and women - Discussed - Lack in implementation of targeted measures solely for prevention of child marriage - Direction issued for introducing special scheme focusing on skill development, vocational training and economic stability for women and girls who leave child marriages - Various preventive training, education, financial support, community-based initiatives and other initiatives by States and UTs - Stated - Impact analysis of State schemes.

Child marriages - Child Rights Law - International law - Universal framework on Child Rights - International Conventions, Political Conventions; Regional Conventions - Universal Declaration of Human Rights; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956; International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of the Child - Framework developed in the African Union, the 1520 European Union and the SAARC - Elucidated - Rights-based framework against child marriages: Right to free choice and autonomy - Right to free and informed consent, Right against gender-based violence; Right to education - Right to primary education, Right to be informed, Right to sex education; Right to development of children - Stated.

Child marriages - Indian jurisprudence - Constitution of India - Article 51 - India's obligation as regards international treaties, conventions and norms - Discussed. Child marriage - Age of marriage, age of consent - History traced - Effects, socio-economic determinants of child marriage - Explained. Child Marriage Restraint Act, 1929 - Salient features - Discussed. Case Law Cited Union of India v. VR Tripathi [2018] 13 SCR 281 : (2019) 14 SCC 646; Hardev Singh v. Harpreet Kaur [2019] 14 SCR 120 : (2020) 19 SCC 504; Vishaka v. State of Rajasthan [1997] Supp. 3 SCR 404 : 1997 AIR 3011; Vellore Citizens Welfare Forum v. Union of India [1996] Supp. 5 SCR 241 : (1996) INSC 952; Apparel Export Promotion Council v. AK Chopra[1999] 1 SCR 117 : (1999) 1 SCC 759; Prem Shankar Shukla v. Delhi Admn. [1980] 3 SCR 855 : (1980) 3 SCC 526; Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa [1987] 2 SCR 659 : (1987) 2 SCC 469; Sheela Barse v. Secy.

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List of Acts Prohibition of Child Marriage Act, 2006; Constitution of India 1950; Child Marriage Restraint Act 1929; Age of Consent Act 1891; Juvenile Justice (Care and Protection of Children) Act, 2015; Protection of Children from Sexual Offences Act 2012; Commissions for Protection of Child Rights Act 2005; Legal Services Authorities Act 1987; Domestic Violence Act 2005; Penal Code 1860; Bharatiya Nagarik Suraksha Sanhita, 2023; Bharatiya Nyaya Sanhita 2023; Hindu Widows' Remarriage Act 1856; Child Marriage Restraint (Second Amendment) Act 1938. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors.

List of Keywords Child marriage; Guidelines for prevention, elimination of child marriage; Constitutional guarantees against Child marriage; Forced marriages; Child Marriage Prohibition Officers (CMPO); Child brides; Male adult; Groom; Patriarchy; Maternal morbidity; Adolescent fertility; Girl child; Virginity; Chastity; Early childbirth; Teenage pregnancy; Pregnancy complications; Age of consent; Age of marriage; Maintenance and residence to the female contracting party; Voidable; Void; Child law; Child betrothals; Welfare and beneficial interest of the child; Ministry of Women and Child Development; Penalties; Presumption; Offences cognizable and non-bailable; Minor woman; Accomplice to the commission of child marriage; Custodians or parents; Injunctions against child marriage; POCSO Act; JJ Act; Child Welfare Committee; Beneficial social legislation; National Commission for the protection of Child Rights (NCPCR) and State Commissions for the protection of Child Rights (SCPCR); Legal Services Authorities; National Legal Services Authority, State Legal Services Authority, District Legal Services Authorities, Taluk Legal Services Committees, High Court Legal Services Committees and Supreme Court Legal Services Committee; State Schemes; Training schemes; Awareness programs; Financial incentives; International human rights norms; Universal Declaration of Human Rights (UDHR); International Conventions; Regional Conventions; Political conventions; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Convention on the Rights of the Child (CRC); African Union; European Union; SAARC; Right to free choice and autonomy; Right to free and informed consent; Right against gender-based violence; Right to education; Right to primary education; Right to be informed; Right to sex education; Right to development of children; International treaties; Domestic laws; International human rights standards; Right to self-determination: choice, autonomy and sexuality of children; Right to health; Right to childhood: education and development; Community Involvement; Awareness Campaigns; Training/Capacity Building; Educational and Social Support; Social Welfare Programs; Standard Operating Procedures.

1526 Case Arising From CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1234 of 2017 (Under Article 32 of the Constitution of India) Appearances for Parties Ms. Mugdha, Kamran Khawja, Satya Mitra, Advs. for the Petitioners. Tushar Mehta, Solicitor General, Ms. Aishwarya Bhati, A. S. G. , Gurmeet Singh Makker, Ms. Snidha Mehra, Ms. Swarupama Chaturvedi, Rajat Nair, Pratyush Shrivastava, Sandeep Kumar Mahapatra, Amrish Kumar Sharma, Manish Kumar, Abhimanyu Tewari, Ms. Eliza Barr, Ms. Deepanwita Priyanka, Prashant Bhagwati, Avijit Mani Tripathi, Anando Mukherjee, Shwetank Singh, Ms. Akshata Chhabra, Som Raj Choudhury, Ms. Shrutee Aradhana, Prashant Kumar, Anand Shankar, Raghvendra Kumar, Anand Kumar Dubey, Jainendra Kumar, Aravindh S. , Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment Dr Dhananjaya Y Chandrachud, CJI Table of Contents* I. Background ....................................................................... 6 II.

Procedural history and submissions ............................... 9 III. A vicious cycle: socio-economic determinants and effects of child marriage .................................................. 14 IV. A national reckoning: child marriage in India ................ 18 A. The age of consent ..................................................... 18 i. Rukhmabai's case .................................................. 20 ii. Phulmoni Dasi's case ............................................. 24 B. Regulating the age of marriage .................................. 25 C. The Child Marriage Restraint Act 1929 ...................... 27 V. Contemporary legal framework ....................................... 31 A. The Prohibition of Child Marriage Act 2006 ............ 31 * Ed. Note: Pagination as per the original Judgment. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. i.

Recourse to the wedded: maintenance, residence and custody .......................................................... 34 ii. Penalties for child marriage .................................. 38 iii. Preventive measures under the PCMA ................ 45 Injunctions against child marriage ................................ 45 Child Marriage Prohibition Officers ............................... 49 B. The Protection of Children from Sexual Offences Act 2012 ....................................................................... 53 C. The Juvenile Justice (Care and Protection of Children) Act 2015 ...................................................... 55 D. The Commissions for Protection of Child Rights Act 2005 ...................................................................... 59 E. The Legal Services Authorities Act 1987 ................. 61 F. Policies formulated by the Union Government ...... 62 G. States' efforts to curb child marriage ........................ 65 i.

Training schemes ................................................. 65 ii. Awareness programs ............................................ 66 iii. Financial incentives ............................................... 68 iv. Other initiatives ...................................................... 69 v. Impact analysis of State schemes .......................... 70 VI. Traversing frontiers: international human rights norms .................................................................................... 72 A. Universal framework ................................................. 73 i. Universal Declaration of Human Rights ............... 73 ii. Recognition in political conventions ...................... 74 iii. Targeted focus: the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. .......... 75 B. Regional framework .................................................. 77 i.

African Union ......................................................... 78 ii. European Union .................................................... 80 iii. SAARC .................................................................. 83 C. Rights based framework ........................................... 84 i. Right to free choice and autonomy .......................... 86 1528 a. Right to free and informed consent ................. 87 b. Right against gender-based violence ............. 89 ii. Right to education ................................................. 91 a. Right to primary education ............................... 91 b. Right to be informed ....................................... 92 c. Right to sex education .................................... 93 iii. Right to development of children ............................ 94 VII. India's obligation ............................................................... 96 VIII. Constitutional guarantees against child marriage ......... 98 A.

Right to self-determination: choice, autonomy and sexuality of children .................................................. 100 B. Right to health ............................................................ 105 C. Right to childhood: education and development ....... 107 D. Reiterating the States' obligations towards combatting child marriage ......................................... 112 IX. Way forward ................................................................... 116 A. Legal Enforcement ................................................. 118 B. Judicial Measures .................................................. 122 C. Community Involvement ....................................... 124 D. Awareness Campaigns .......................................... 125 E. Training/Capacity Building .................................... 128 F. Educational and Social Support .............................. 131 G. Monitoring and Accountability ............................... 133 H.

Technology-Driven Initiatives for Reporting Child Marriage ........................................................ 135 I. Funding and Resources ........................................ 136 X. Suggestions .................................................................. 138 XI. Conclusion .................................................................... 140 "Sir, I am one of those unfortunate Hindu women, whose hard lot it is to suffer the unnameable miseries entailed by the custom of early marriage. This wicked practice has destroyed the happiness of my life. It comes between me and that thing which I prize above all others--study and mental cultivation. Without the least fault of mine Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. I am doomed to seclusion; every aspiration of mine to rise above my ignorant sisters is looked upon with suspicion, and is interpreted in the most uncharitable manner. " 1 ~ Rukhmabai I. Background 1.

The Petitioner has approached this court under Article 32 of the Constitution to raise an issue which has been debated in our nation for over one and a half centuries. The Petitioner is an NGO that has worked extensively against child marriage. The Petitioner's primary grievance is that despite the enactment of the Prohibition of Child Marriage Act 20062, the rate of child marriages in India is alarming. The Petitioner seeks to address the failure of authorities to prevent child marriages. The Petitioner has sought stronger enforcement mechanisms, awareness programs, the appointment of Child Marriage Prohibition Officers, and comprehensive support systems for child brides - including education, healthcare, and compensation, to ensure the protection and welfare of vulnerable minors. Accordingly, the Petitioner prays for the issuance of effective guidelines. 2. Child marriage is a social evil, and its commission is a criminal offence.

Despite the near-universal agreement on the ills of child marriage, its commission and prevalence have been sobering. Child marriage is the phenomenon of children being married before they attain the minimum legal age under the law. Globally, children continue - despite legal norms to the contrary - to be married before they reach the age of eighteen years. Patriarchy, gender inequality, poverty and lack of education and employment lead to child marriage. 3 The UN Convention on the Rights of the Child regards child marriage as a violation of human rights4. While both sexes are inflicted with the violence of child marriages, the prevalence of child marriage globally among boys is one-sixth that of girls. 5 1 Extracted from a letter written by Rukhmabai to the Times of India on 26 June 1885. 2 'PCMA' 3 When the mother is a child: the impact of child marriage on the health and human rights of girls. Archives of Disease in Childhood, 95(11), 931. BJM Journals. 4 United Nations (1989).

Convention on the Rights of the Child. 5 UNICEF (2019). 115 Million Boys org/press-releases/115-million-boys-and-men-around-world-married-children-unicef. 3. Elimination of child, early and forced marriages has been committed to by one hundred and ninety-three nations, including India under target 5. 36 of the Sustainable Development Goals7. Section 28 of PCMA defines child marriage as a marriage to which either of the contracting parties is a child. Girls below the age of eighteen and boys below the age of twenty-one are deemed to be children under the PCMA. 9 4. The 2019-2021 National Family Health Survey-510 pits child marriage at 23. 3% of girls11 under the age of eighteen and 17. 7% of boys12 under the age of twenty-one. The data is based on a survey of women aged 20-24 and men aged 25-29. This is a reduction from the 2015-2016 NFHS-4 which showed that 26. 8% of girls and 20. 3% of boys marry under the legal age of marriage. Child marriage has been on a steady decline in India.

The prevalence of child marriages in India has halved since the enactment of the PCMA in 2006 from 47% to 27% in 2015-16 and 23. 3% in 2019-2021. 13 The decline in child marriage in India is in line with the global trend. In the past decade, the proportion of girls married as children has dropped by 15%. 14 Despite these enormous strides globally and in India, no region in the world is on track to attain the SDG-5 target. 15 It is estimated that the progress in reducing child marriage would need to be twelve times faster than the rate observed in the past decade to achieve the SDG-5 target. 16 6 United Nations (2015). Transforming our world: The 2030 Agenda for Sustainable Development. 7 'SDG' 8 "2. Definitions.

--In this Act, unless the context otherwise requires,-- (a) "child" means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age; (b) "child marriage" means a marriage to which either of the contracting parties is a child; (c) "contracting party", in relation to a marriage, means either of the parties whose marriage is or is about to be thereby solemnised; ... " 9 Section 2(a), PCMA. 10 'NFHS-5' 11 Data based on the survey of women ages 20-24, NFHS-5. 12 Data based on the survey of men ages 25-29, NFHS-5. 13 NFHS-3, NFHS-4, NFHS-5. 14 UNICEF child-marriage-latest-trends-and-future-prospects/. 15 Ibid. 16 Pintu Paul (2020). Child Marriage Among Girls in India: Prevalence, Trends and Socio-Economic Correlates. Indian Journal of Human Development, 14(2), 304. Sage Journals. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. 5. The term child marriage is an oxymoron.

A child implies a person whose capacity to make legal decisions is not fully developed. On the other hand, marriage is an institution with legal standing. The law seeks to govern the legitimacy of sexual activity and marriage is the institution in which it is legitimised. Marriage dictates the framework rules of permissible and impermissible social behaviours. However, a child is incapable of understanding the broad and serious obligations expected from members of a marital union. Child marriage often deprives children of intellectual, social and psychological development and carries life-threatening risks. It therefore comes as a great tragedy that the term child marriage is normalised to a point where this blatant paradox is lost on most people. II. Procedural history and submissions 6. This Court issued notice to the Union of India on 13 April 2018.

On 13 April 2023, this Court further directed the Ministry of Women and Child Development to file a status report elucidating the following: (i) The data collected from various States bearing on the nature and extent of child marriages; (ii) Steps taken to implement the provisions of the PCMA; and (iii) The policies formulated by the Union government to effectuate the purpose. The Court also directed the Union to consult the States on the appointment of Child Marriage Prohibition Officers17 under Section 1618 17 'CMPO' 18 "16. Child Marriage Prohibition Officers (1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.

(2) The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.

(3) It shall be the duty of the Child Marriage Prohibition Officer (a) to prevent solemnisation of child marriages by taking such action as he may deem fit; (b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act; (c) to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages; (d) to create awareness of the evil which results from child marriages; (e) to sensitise the community on the issue of child marriages; (f) to furnish such periodical returns and statistics as the State Government may direct; and 1532 of the PCMA and submit a comprehensive affidavit on whether the officers appointed as CMPOs are given other multifarious duties. 7.

The Ministry of Women and Child Development has submitted that it has successfully collected data from all States and Union Territories except Arunachal Pradesh, Goa, Manipur, Odisha, Sikkim, Jammu & Kashmir and Lakshadweep. The data placed on record by the Ministry reflects that many child marriages are prevented before their solemnization. The remaining cases are investigated and prosecuted under the law. We shall analyse the data submitted by the Ministry of Women and Child Development in the course of this judgment. 8. On 10 July 2024, this Court heard Ms Mugdha, learned counsel appearing on behalf of the Petitioner as well as Ms Aishwarya Bhati, learned Additional Solicitor General appearing on behalf of the Union of India. While reserving the judgment this Court granted liberty to the Petitioner and the Union to make their submissions in the form of a note including suggestions on ways for the effective enforcement of PCMA. 9.

The Petitioner has submitted that: (i) Data from NFHS-4 and NFHS-5 reflects that high rate of child marriages have been solemnised. The Petitioner submits that this can be gathered from the rate of adolescent pregnancies in multiple States; (ii) Under Section 16 of PCMA, CMPOs are empowered to prevent child marriages. However, findings from HAQ - Centre for Child Rights19 show that CMPOs are often tasked with multiple responsibilities, limiting their capacity to focus on child marriage prevention. Many States designate officials holding other substantial roles, such as Child Development Project (g) to discharge such other functions and duties as may be assigned to him by the State Government.

(3) The State Government may, by notification in the Official Gazette, subject to such conditions and limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject to such conditions and limitations, as may be specified in the notification. (4) The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3. " 19 HAQ Centre for Child Rights (n. d. ). Child Marriage in India: Achievements, Gaps and Challenges, Response to Questions for OHCHR Report on Preventing Child, Early and Forced Marriages for Twentysixth Session of the Human Rights Council. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. Officers20 or District Welfare Officers as the CMPO.

This leads to CMPOs prioritising their duties in the discharge of other roles - defeating the purpose of appointing CMPOs - as they would not have the time, monetary and human resources to carry out the responsibilities enumerated in the Act. For instance, Section 3(1) of the Mizoram Gazette mandates that the District Social Welfare Officer or, in their absence, the CDPO acts as the CMPO; (iii) Responses to various requests under the Right to Information Act 200521 by all States and UTs reveal significant disparities in the appointment and functionality of CMPOs. Of the 36 States and UTs, only 23 responded, and only 14 provided substantive data. Most of the responses indicated the transfer of the RTI to other departments without concrete answers. Notably, only Haryana and Sikkim reported having exclusively appointed CMPOs.

In contrast, other States and UTs assign these duties to already overburdened officers, such as District Magistrates or CDPOs, undermining the effectiveness of CMPOs; (iv) There is a discrepancy between data from the National Crime Records Bureau22 and information obtained from various State departments in response to RTIs. For example, in Rajasthan, the Department of Women and Child Development reported 573 and 567 incidents of child marriage in 2015-16 and 2016-17, respectively, despite only 576 cases being formally recognized by authorities in 2016-17; and (v) Analysis of data further reveals not only a low number of child marriage cases reported to the police compared to NFHS-4 data but also an exceptionally low conviction rate. 10.

Therefore, the Petitioner prays for directives to authorities at multiple levels to prevent and address child marriages, particularly during mass events, ensure accountability for officials who fail in this duty, and appointment of CMPOs with exclusive powers. They also seek collaboration with NGOs, inclusion of child marriage awareness in 20 'CDPOs' 21 'RTI' 22 'NCRB' 1534 school curriculums, and comprehensive government support for affected child brides. 11. The Union of India has submitted that: (i) Child marriages persist due to societal perceptions and economic pressures. Girls are often seen as burdens, with early marriage viewed as an appropriate option. Additionally, investment in a girl's education is frequently regarded as wasteful, leading some families to end schooling early and consider marriage instead.

Poverty and structural inequalities, including gender, caste, and class, further drive child marriages; (ii) The PCMA was introduced to criminalize the facilitation and solemnization of child marriage, aiming to deter this harmful practice. Additionally, the Beti Bachao Beti Padhao23 program addresses gender-based issues by promoting girls' education and empowerment, thereby supporting delayed marriage and promoting a culture that values girls' rights and opportunities; (iii) Census data from 2001 and 2011 indicates a decrease in child marriage rates; (iv) Data from NFHS-4 shows a reduction in the percentage of women aged 15-19 who were mothers or pregnant, from 16% in 2005-06 to 7. 9% in 2015-16.

The National Commission for the Protection of Child Rights24 has identified 70 high-risk districts across 13 states with the highest child marriage rates, and 52 of these districts are covered under the BBBP scheme; (v) Programs like the Mahila Shakti Kendra aim to reach rural women and girls, enhancing awareness and equipping them with knowledge on gender equality. The program operates District Level Centres for Women across 640 districts to implement initiatives that improve women's status and address genderbased challenges; and (vi) States and Union Territories25 have also taken various measures for the elimination of child marriages. 23 'BBBP' 24 'NCPCR' 25 'UTs' Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. III. A vicious cycle: socio-economic determinants and effects of child marriage 12. All child marriages are forced marriages.

Many parents wish to marry their girl child early to guard against any aspersions on the girl's virtue of virginity and to mitigate the economic costs associated with raising a child, payment of dowry and conducting a wedding. The economic factors of child marriage are borne out by studies that reflect that child marriage in India predominantly occurs in less educated, rural and poor families. 26 Parents in such families are informed by a survivalist and patriarchal mindset that responds to social, cultural and religious norms and economic necessity. 13. Culturally embedded concepts of virginity and chastity are used to control the sexuality of women by men and the family. They are not just markers of control but are also made into identifiers of family and community honour. By placing an overemphasis on these constructed virtues, a false sense of protectionism is generated to safeguard girls against their ability of self-exploration and to form meaningful bonds on their own.

Honour, purity, and decisional incapacity are presented as the domain of womanhood and its protection is laid in the institution of marriage. Parents marry their daughters early to meet the prescription of a society rooted in parochial norms of controlling a woman's sexuality. While patriarchy promises respect to its adherents, it only leads to the subordination of women who are deprived of any meaningful avenue to develop their agency and exercise their autonomy. The malleability of a girl child and her inability to form informed opinions are looked up to as desirable qualities. These qualities are understood to earn her favour in the eyes of her in-laws in serving them as they see fit. 27 In less educated, rural and poor setups, members of the community lack effective opportunities and life chances. Investing in the education and development of a girl is seen as unworthy and unrealistic.

The lack of alternative means for education, employment and skill development for women also incentivises parents to give their daughters away in child marriage. 26 Sanjay Kumar (2020). Trends, Differentials and Determinants of Child Marriage in India: Evidence from Large-scale Surveys. Economic & Political Weekly, 55(6), 57. 27 See RC Roy (1888). Child Marriage in India. The North America Review 147(383) 415-423. University of Iowa. 1536 14. Parents also believe that their daughters would be saved from pregnancy out of wedlock and be guarded against unsolicited advances by men if she were to be married early. Many marry their daughters off but delay the consummation of marriage till the age of puberty. A gauna ceremony is performed to mark the growing up of the daughter and her departure from the parental home to the marital home upon getting menses.

The delay in sending a child bride to her marital home is informed only by the bodily development of the girl and is unbothered by any other consideration, such as the mental and educational development of the person or indeed her own choice in the matter. The compounding of one evil to emerge out of patriarchy with another solution rooted in patriarchy has the effect of culturally stunting society and depriving children, girls in particular, of any avenue to exit from the cycle of generational oppression. 15. Notably, the very causes of child marriage ensure that members of the marital union and their families are stuck in the vicious cycle of social and economic oppression. Early marriage in girls, places a burden on them to discharge their duty of giving offspring to the family. Sexual activity within themarital union is unregulated and even encouraged. A child, forced to prove her fertility, is exposed to enormous health risks.

Her body is mentally and physically unprepared for sexual engagement which is forced upon her. Girls in child marriage report early, frequent and unplanned pregnancies which are linked to increased risk of maternal and infant morbidity and mortality. 16. Adolescent mothers are also likely to experience fistula, pregnancy complications and death during childbirth. 28 Women married as children are likely to have their first child before the age of eighteen and are likely to have had atleast three or more childbirths and a repeat childbirth in less than twenty-four months. 29 Currently, between the ages of 15 and 19, 7% of women have begun childbearing; 5% of women have successfully delivered, while 2% of women are pregnant with their first child. 30 The rate of teenage pregnancy is higher in 28 Anita Raj, Niranjan Saggurti, Donta Balaiah, Jay G Silverman (2009).

Prevalence of child marriage and its effect on fertility and fertility-control outcomes of young women in India: a cross-sectional, observational study. Lancet 373 1993-89. 29 Ibid. 30 NFHS-5, 116. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. rural India at 8%. 31 States which have reported the highest levels of teenage pregnancies are Tripura (22%), West Bengal (16%), Andhra Pradesh (13%), Assam (12%), Bihar (11%) and Jharkhand (10%). 32 17. These factors have a detrimental effect on maternal mortality and morbidity. Adolescent mothers are likely to develop lifelong health consequences from sexual encounters and childbearing. They are also more likely to be sterilized at an early age which is indicative of a lack of control over their choices. 33 Families after bearing the desired number of offspring, force women to undergo sterilization to control further reproduction in the family.

34 The high rate of sterilization found in women married as children would also lead to more unprotected sex which leads to a risk of contracting sexually transmitted diseases. 18. Lack of healthcare access in rural areas and for poor families may lead to further health complications and unsafe medical procedures including unsafe abortions. 35 Further, women married as children are deprived of educational and employment opportunities thereby effacing them from public life. Education has an inversely proportional effect on child marriage. 87% of married adolescent girls did not attend school. 36 In India, women having twelve or more years of schooling tend to marry much later than other women. The median age at first marriage for women between the age of 25-49 increases from 17. 1 years for women with no schooling to 22. 8 years for women with twelve or more years of schooling.

37 This is in line with studies conducted at a global level which reflect that child marriages are 66% lower among girls who complete secondary education and 80% lower among those who pursue higher education. 38 31 Ibid. 32 NFHS-5, 117. 33 Anita Raj (2010). When the mother is a child: the impact of child marriage on the health and human rights of girls. Archives of Disease in Childhood, 95(11), 931. BJM Journals. 34 Ibid. 35 Ibid. 36 Government of India (2011). Census of India 2011. 37 NFHS-5, 208. 38 UNICEF (2019). Evidence Review: Child Marriage interventions and research from 2020 to 2022. 1538 IV. A national reckoning: child marriage in India A. The age of consent 19. The trajectory of child marriage in India is stubborn and persistent. It has travelled centuries, and its opposition seems to have only incremental successes each time. Still widely prevalent,39 the first movement against child marriage in modern India began in the latter part of the nineteenth century.

Social reformers were trying to build public opinion against child marriage. Two concerns primarily animated the call against child marriages by early reformers. The first was the high number of early widows. 40 Because the rate of mortality was low, many girls found themselves in widowhood in the early years of their lives. The second reason behind seeking child marriage reform was to protect young wives against forcible sexual intercourse, often by their husbands who were significantly older. 41 20. Reformers like Ishwar Chandra Vidyasagar had successfully advocated for widow remarriage which was hitherto believed to be impermissible under Hindu law. These efforts led to the enactment of the Hindu Widows' Remarriage Act 1856. However, the demands against child marriages were not immediately realised. Child marriage, an aversion to widow remarriage and the low mortality rate combined and morphed into a lethal destructive element in the Indian society. 42 21.

To address the devastation caused, in particular to women and girls, social reformers called for raising the minimum age of consent for women in penal rape statutes. The idea behind the demand for raising the age of consent was to avoid the bodily harm inflicted on girls by their often-elderly husbands. A person below the age of consent could not legally consent to any sexual activity thereby throwing any sexual conduct within the confines of statutory rape. Such laws already existed in the presidency towns of Calcutta, Madras and Bombay as 39 NFHS-5. 40 Tahir Mahmood (1980). Marriage Age in India and Abroad - A Comparative Aspect. Journal of Indian Law Institute 22, 39. 41 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 37. 42 Tahir Mahmood (1980). Marriage Age in India and Abroad - A Comparative Aspect. Journal of Indian Law Institute 22, 39. Society for Enlightenment and Voluntary Action & Anr. v.

Union of India & Ors. early as 1828. 43 The laws in these presidency towns stipulated the age of consent for girls to be eight years and the offence of rape against a girl below the age of consent was punishable with death. 44 In 1847, when the Law Commission was drafting the Indian Penal Code it decided, for the first time, to criminalise the consummation of marriage by a husband with his underage wife. The initial version of the Indian Penal Code 186045 stipulated the age of consent to be ten years and criminalised marital rape by a husband against his wife under the age of consent. 46 22. Raising the age of consent was seen as undue interference by the colonial legislature into the personal laws of Indians. 47 The movement gained a groundswell of support because of efforts by Behramji Malabari, a journalist from Bombay, who began publishing his 'notes' in his newspaper the 'Indian Spectator' in 1884.

48 He highlighted the consequences of 'infant marriages' and 'enforced widowhoods' by recounting anecdotal accounts of victims. His polemical style of reporting sought to appeal to the humanity of the readers. 49 Around the same time, two cases came to the fore and exposed the evils which come out of child marriage. i. Rukhmabai's case 23. In 1874, at the age of eleven, Rukhmabai was married off to Dadaji Bhikaji, a nineteen-year-old boy who was a cousin of her step-father. Owing to his reformist views, Rukhmabai's stepfather did not send her to live with Dadaji Bhikaji immediately upon attaining puberty. Under his guidance, Rukhmabai grew fond of studying and took plenty of advantage of the rich collection of books he had accumulated. As 43 The Joshi Committee Report, 9. 44 Ibid. 45 'IPC' 46 Ss. 375, 376, IPC 1860 (initial version). 47 Tahir Mahmood (1980). Marriage Age in India and Abroad - A Comparative Aspect. Journal of Indian Law Institute 22, 39.

48 Infant Marriage and Enforced Widowhood in India, Being a Collection of Opinions For and Against, Recorded by Mr. Behramji M. Malabari from Representative Hindu Gentlemen and Official and Other Authorities, Bombay (1887); Charles H. Heimsath, Indian Nationalism and Hindu Social Reform, Princeton University Press (1964), 151. 49 Charles H. Heimsath, Indian Nationalism and Hindu Social Reform, Princeton University Press (1964), 151; Geraldine Forbes, Women and Modernity: The Issue of Child Marriage in India, Women's Studies International Quarterly, 1979, Vol. 2, 407-419. 1540 Rukhmabai grew into an intelligent and forward-thinking woman, Dadaji Bhikaji slipped into indolence. This led Rukhmabai to refuse to live with Dadaji. 50 In 1884, Dadaji instituted a suit for restitution of conjugal rights. At the time, a decree for restitution of conjugal rights was enforceable and its violation was punishable with imprisonment.

Rukhmabai opposed the petition on the grounds of social, economic and personal incompatibility with Dadaji. 51 She also asserted that she had not 'arrived at years of discretion' at the time of her marriage and therefore she could not be bound by it. 52 Justice Pinhey of the Bombay High Court dismissed the petition and held that Rukhmabai was married before she could consent to such a marriage and cannot therefore be compelled to live with her husband eleven years later without having cohabited in all this time. He observed that: "It is a misnomer to call this a suit for the restitution of conjugal rights. When a married couple, after cohabitation separate and live apart, either of them can bring a suit against the other for the restitution of conjugal rights according to the practice in England, and according to the later practice of the Courts in India. But the present suit is not of that character.

The parties to the present suit went through the religious ceremony of marriage eleven years ago when the defendant was a child of eleven years of age. They have never cohabited. And now that the defendant is a woman of twenty-two, the plaintiff asks the Court to compel her to go to his house, that he may complete his contract with her by consummating the marriage, The defendant, being now of full age, objects to going to live with the plaintiff, objects to allowing him to consummate the marriage, objects to ratifying and completing the contract entered into on her behalf by her guardians while she was yet of tender age. It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to 50 Sudhir Chandra. Enslaved Daughters: Colonialism, Law and Women's Rights. Oxford University Press, 2nd ed (2008), Ch. 1. 51 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed.

(2012) 39. 52 Sudhir Chandra. Enslaved Daughters: Colonialism, Law and Women's Rights. Oxford University Press, 2nd ed (2008), Ch. 1. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. go to a man whom she dislikes, in order that he may cohabit with her against her will; and I am of opinion that neither the law nor the practice of our Courts either justified my malting such an order, or even justifies the plaintiff in maintaining the present suit. " (emphasis supplied) 24. The decision of Justice Pinhey was much ahead of its time. At a time when child marriage was the norm and the legal standard of consent was inapplicable to marital laws, Justice Pinhey's judgment was a bold declaration of the rights of Indian women to make their own life choices. Unfortunately, the success was short-lived. The judgement had caused an uproar in the public and Dadaji filed an appeal before the Division Bench of the Bombay High Court.

The Division Bench set aside the judgment of Justice Pinhey and directed Rukhmabai to join Dadaji within a month at the pain of penalty to undergo six months' imprisonment. The court reasoned that incompatibility was no defence under Hindu law against a petition for restitution of conjugal rights. Firm as she was, Rukhmabai refused to join Dadaji and declared that she would subject herself to the maximum penalty admissible under the law, rather than to live with her husband. The sight of a Hindu woman being imprisoned shocked the public conscience. Dadaji entered a compromise and did not press for the execution of the decree for restitution of conjugal rights against an amount of Rs 2000/-. Rukhmabai went on to study medicine in the UK and became one of India's earliest women doctors. 25. Rukhmabai's defiance was uncharacteristic for her time and threatened, not only child marriage but also the indomitable idea of a woman's inferiority.

Her assertion of womanhood and agency in refusing to go with a wayward husband whom she was given to in marriage opened up new ways for women to imagine their autonomy. Writing to the editor of the Times of India on 26 June 1885, under the pseudo name 'A Hindu Lady', Rukhmabai eloquently drew the differential plains on which the experiences of boys and girls in a child marriage are placed. She wrote: "The general apathy towards social improvements which characterizes our people has been telling upon the whole community, but tells most heavily upon the female 1542 sex. Hindu social customs do not entail on men half the difficulties which they entail upon women. Excepting the two principal difficulties resulting from infant marriage, they enjoy full mental and physical freedom. Religion or social custom does not, in any way, interfere with their liberty. Marriage does not interpose any insuperable obstacle in the course of their studies.

They can marry not only a second wife, on the death of the first, but have the right of marrying any number of wives at one and the same time, or any time they please. If married early, they are not called upon to go to the house and to submit to the tender mercies of a mother-in-law; nor is any restraint put upon their actions because of their marriage. But the case with women is the very reverse of this. If the girl is married at the age of eight (as most of them are), her parents are at liberty to send her to school till she is ten years old; but, if they wish to continue her at school longer, they must obtain the express permission of the girl's mother-in-law. But even in these advanced times, and even in Bombay-- the chief centre of civilization--how many mothers-in-law are there who send their daughters to school after they are ten years old! "53 26.

While Rukhmabai's case ultimately witnessed an out of court settlement and her freedom, another case around the same time jolted the conscience of the Indian society. ii. Phulmoni Dasi's case 27. In 1889, Phulmoni Dasi was married off at the age of eleven years to a thirty-five-year-old man. At age eleven years and three months, she was subjected to marital rape by her husband, Hari Maiti. She succumbed to haemorrhage from a rupture of the vagina caused by her husband. 54 The Court ruled that the law of rape was inapplicable because Phulmani had reached her tenth birthday and was married to Hari. The coverage of the case as well as the trial cast a male 53 Extracted from a letter written by Rukhmabai to the Times of India on 26 June 1885. 54 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 37. Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors.

medical gaze over the body of the deceased victim. Even after her death, she was subjected to scrutiny to determine her true age and growth. Questions of her immaturity and puberty were not sought as an ornate way to bring her husband to justice but were rather asked to defend him. 28. The gruesome case of Phulmani galvanised support for Malabari's campaign to raise the age of consent. Phulmani's case silenced the opposition among those who had opposed any legislative intervention as a colonial interference in the private sphere and practices. 55 The death of Phulmani also cut through the lethargy of a colonial bureaucracy which was reluctant to intervene in matters of religion. 56 The law member of the Viceroy's Legislative Council, Andrew Scoble, prominently used Phulmani's case to advocate for raising the age of consent by enacting his Bill, namely, the Age of Consent Bill. The Bill was an amendment to the IPC and raised the age of consent from ten years to twelve years.

The Age of Consent Act was passed in 1891. The marital rape exception had come to the defence of Hari. Raising the age of consent by two years meant that any sexual intercourse with a girl under the age of twelve would be statutory rape regardless of the marital status of the aggressor with the victim. B. Regulating the age of marriage 29. In 1921, the League of Nations held a conference on the trafficking of women and recommended raising the age of consent to twentyone years for girls. In 1922, Bakshi Sohanlal unsuccessfully tried to raise the age of consent to 14 by introducing a Bill. Bills that sought to raise the age of consent were introduced and thrown out regularly for five years thereafter. Among these bills was an Age of Marriage Bill which was sought to be introduced by Ranglal Jajodia in 1924 in the Legislative Assembly. 57 The Bill prescribed a minimum age before which no marriage could take place. This was a shift from the 55 Ratna Kapur & Brenda Cossman (1996).

Subversive Sites: Feminist Engagements with Law in India. Sage Publications 49-50; Charles H. Heimsath (1964). Indian Nationalism and Hindu Social Reform. Princeton University Press 163-165. 56 Ishita Pande (2020). Sex, Law, and the Politics of Age Child Marriage in India, 1891-1937. Cambridge University Press 32. 57 Joshi Committee Report, 15; Also see Tahir Mahmood (1980). Marriage Age in India and Abroad - A Comparative Aspect. Journal of Indian Law Institute 22, 41. 1544 approach taken by other reformers and legislators of not interfering with the age of marriage but to merely protect girls from forced sex by raising the age of consent in penal laws. While this Bill was never introduced, a similar Bill was introduced by Haribilas Sarda in 1927 after another failed attempt to raise the age of consent by Hari Singh Gour. The 'Sarda Bill' was circulated widely to attract opinions.

The Select Committee altered various provisions, and the Government eventually appointed the Age of Consent Committee under the chairmanship of MV Joshi. The consideration of the Sarda Bill was postponed till the report of the Joshi Committee was received. 58 30. The terms of reference of the Joshi Committee did not include the examination of the age of marriage. However, the committee found it impossible to delink the question of marriage age with the question of age of consent for cohabitation. 59 The committee heard over twelve hundred oral witnesses out of which one hundred and thirty four witnesses strongly opposed any law regulating the age of marriage. The committee submitted its report dated 20 June 1929. It recommended that the age of consent be raised to fifteen years under penal statutes as well as the enactment of a law which penalizes marriage below the age of fourteen years.

60 The committee was of the opinion that it would be easier to regulate the age of marriage by law than to regulate the consummation of marriage after it had already taken place. The committee reasoned that marriage was an act of public knowledge and many persons had a chance to notice the age of the couple. Its visibility would allow for its regulation. It was also thought that regulating marriages would avoid the irritation that would follow from the strict regulatory interference of consummation within a marital union. 61 31. After much debate, the Sarda Bill was enacted as the Child Marriage Restraint Act 1929 and received the assent of the Governor-General on 1 October 1929 and was to come into force on 1 April 1930 throughout British India. The Act applied to all religions. The Act continued to govern the law on the age of marriage till Parliament enacted the Prohibition of Child Marriage Act 2006. 58 Joshi Committee Report, 8. 59 Ibid, 8. 60 Ibid, 196. 61 Ibid, 174, para 379.

Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. C. The Child Marriage Restraint Act 1929 32. The law in colonial times had cast a male gaze upon the women and girls of India. It did so by making women the object of the legislation but never its spectator. Women and their bodies were made a subject of legislation without any meaningful attempt to attract the perspectives of women, their experiences or their desires. The law did not concern itself with issues of autonomy, agency and individualised dignity of a woman. This had been manifested from the days of the reform movement on the age of consent laws. As Dr Jaya Sagade argues in her book Child Marriage in India: Socio-legal and Human Rights Dimensions, the law on consent was nailed purely to the physical capability of women and alien from their aspirations or choices.

She states that: "It is unfortunate that all opinions agreed on a definition of consent that was nailed to a purely physical capability, entirely dissociated from free issues like choice of partner, sexual, emotional, or mental compatibility or other social considerations such as the girl's personal development. Consent was made into a biological category, a stage when the female body was ready to accept sexual penetration without serious harm. The only difference lay in when this stage was reached. "62 33. The Child Marriage Restraint Act 192963 was a first to cover all children - male and female - within its gamut. The age of consent laws was enacted through a clause in the penal rape statutes which only sought to legislate on girls. The CMRA on the other hand was applicable to both boys and girls. 34. Section 2(a) of the CMRA stipulated that a "child" means a person who, if male, is below the age of eighteen, and if female, is below the age of fourteen.

Section 2(d) defined a "minor" to be any person below the age of eighteen. All marriages in which either of the parties was a 'child' under Section 2(a) was stipulated to be a "child marriage" under Section 2(b). The CMRA stipulated that child marriage is an offence punishable with simple imprisonment which may extend to 62 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 41. 63 'CMRA' 1546 one month or a fine of one thousand rupees or both. Grooms between the ages of eighteen and twenty-one were to be punished only with a fine and no imprisonment could be awarded to them. The CMRA originally did not allow for the punishment of a 'child' for the offence of child marriage. The Act only penalised child marriages which had already taken place. However, it did not stipulate any provision for the prevention of child marriage. 35.

In 1938, the CMRA was amended to stipulate that a court may issue an injunction prohibiting a child marriage from taking place. However, before issuing such an injunction, the court was required to give prior notice to the person sought to be injuncted as well as an opportunity to show cause against the issuance of the injunction. 64 The CMRA further underwent substantive amendments in 1949. 36. The amendment increased the age for a girl child to fifteen years and increased penalties for all categories of offenders. A chart of all the penalties under the CMRA and its amendments is produced below: Offender Penalty under the Original CMRA 1949 Amendment Groom between the Fine of upto Rs 1,000/- Simple imprisonment ages of 18-21 upto 15 days or/and a fine upto Rs 1,000/- Groom above the age Simple imprisonment Simple imprisonment of 21 upto 1 month or/and fine upto 3 months and fine upto Rs 1,000/- One who knowingly Simple imp