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Muslim body favours UCC, Assam’s decision against child marriage

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SC verdict on child marriage must be followed by guardrails against undue criminalisation

While the guidelines set out by the Supreme Court are commendable, one will have to observe their implementation on the ground

Child marriages are not limited to those carried out under parental pressure; they include marriages by minors against parental wishes.

On October 18, a Supreme Court Bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra delivered an extensive judgment highlighting the alarming scale of child marriages in India despite the enactment of the Prohibition of Child Marriage Act (PCMA) 18 years ago. Even though it took the Bench seven years, the verdict has elaborate guidelines for the effective implementation of PCMA.

It starts by quoting Rukhmabai’s plea to the Bombay High Court in 1884, “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.” Rukhmabai refused to join her husband and declared that she would subject herself to the maximum penalty under the law, rather than live with her husband.

The matter was finally settled between the parties, and Rukhmabai went on to become one of the first practising women doctors in colonial India.

Child marriage is an offence punishable with rigorous imprisonment — which may extend up to two years — or with a fine of up to Rs 1 lakh, or both, on whoever performs, conducts, directs or abets child marriage. Offences under the Act are cognisable and non-bailable. The marriage is voidable except in certain cases. The PCMA of 2006 replaced the Child Marriage Restraint Act of 1929. Before this, we had the Age of Consent Act, of 1891.

Almost 150 years later, India has one in three of the world’s child brides. Of the country’s 223 million child brides, 102 million were married before turning 15. In 2006, child marriages in India made up 47 per cent of all marriages — almost half of all girls in India were married before the age of 18, as per the National Family Health Survey. The prevalence has halved since the enactment of the PCMA. In some states, however, it still exceeds 40 per cent, with the highest rates found in West Bengal, Bihar and Tripura (UNICEF report). The problem is worse in rural India as compared to urban areas, with 56 and 29 per cent prevalence respectively.

Poverty is the dominant cause of child marriages. Families see it as a way to cope with growing economic hardship. Often, younger siblings are married along with the elder ones to save expenses. Displacement breaks down social networks and protection systems, making young girls even more vulnerable.

The strong emphasis on the sexual purity and virginity of brides ensures parents marry their daughters early. The fear that young girls may be sexually abused, or worse still, engage in consensual sexual activity, is daunting. There is also the deep-rooted belief that a daughter’s marriage is a religious obligation that needs to be fulfilled above all else. In these cases, since the family and community are aligned, PCMA is seldom used. Young girls are unable to stand up to family and societal pressure and support systems offered by the state are not holistic or adequate.

Child marriages are not limited to those carried out under parental pressure; they include marriages by minors against parental wishes. “Should both these kinds of marriages be treated alike?” the Delhi High Court had probed in Jitender Kumar Sharma v State (2010). When minors exercise their choice to marry against their parent’s wishes, the tables are turned and PCMA is promptly used against them to declare their marriage void.

Also Read | Law on prevention of child marriages can’t be stunted by personal laws: SC

Courts have given contradictory opinions in such cases. In Yunus Khan v State of Haryana (2014), a 16-year-old girl got married against her parents’ wishes. Her father filed a case of kidnapping against her husband and a writ before the High Court seeking her custody. The girl stated that she had married out of her own free will, and the courts held the marriage valid and not void.

However, in the case of Amrinder Kaur and Others v State of Punjab (2015), when the family of the 16-year-old girl opposed the marriage as the boy was from a different caste, the Punjab and Haryana High Court held the marriage void on the ground that the girl was a minor and that the man had enticed and kidnapped her. In this case, it was the couple who had approached the court to obtain police protection and the girl informed the court that she had consented to the marriage.

A void marriage is when a child under 18 years has been “taken” or “enticed” away from their lawful guardian and married off. The marriage is treated like it never existed. A voidable marriage on the other hand is valid until the child approaches the court to “nullify the marriage up to two years after attaining majority”.The states of Karnataka (2016) and Haryana (2020), through state-specific amendments, have made all child marriages void ab initio (void from the beginning).

A National Coalition for Advocating Adolescent Concerns study highlighted the disruptive impact this has had and the plight of child brides in Karnataka: “What will be the legal status of the girls, their children, their right to matrimonial property, etc? How will the law tackle abandonment and destitution of girls especially when husbands take advantage of the void status to re-marry?”

While the guidelines set out by the Supreme Court are commendable, one will have to observe their implementation on the ground. The fact that SC is cognisant of the impact that criminalisation has on girls, their families and communities and has emphasised that these guidelines prioritise prevention before protection and protection before penalisation, is a welcome relief.

Admin · Guru

Child betrothals are a ploy to evade punishment: Supreme Court

Top court urges Parliament to outlaw child betrothals, drawing attention to how they threaten laws like POCSO Act; issues guidelines on sex education in schools, compensation scheme for girls

Updated - October 18, 2024 11:45 pm IST - NEW DELHI

Krishnadas Rajagopal

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud and comprising Justices J.B. Pardiwala and Manoj Misra said the anti-child marriage law was vague on child betrothals. File photo: Supreme Court of India via PTI

The Supreme Court on Friday (October 18, 2024) held that child betrothals, used as a clever ploy to duck punishment under the Prohibition of Child Marriage Act, violate basic rights of free choice, autonomy and childhood.

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud said the anti-child marriage law was vague on child betrothals. The Court urged the Parliament to outlaw child betrothals and declare a child whose marriage was fixed as “a minor in need of care and protection” under the Juvenile Justice Act.

The Bench, also comprising Justices J.B. Pardiwala and Manoj Misra, said India was yet to wake up to the betrothal of minors even though the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) stipulated the problem way back in 1977.

Explained | How is India planning to end child marriage?

Under the Prohibition of Child Marriage Act (PCMA) of 2006 girls below 18 and boys under 21 are deemed to be ‘children’. The law considers the practice of child marriage a criminal offence as well as a social evil.

Government’s ‘note’ on PCMA

Chief Justice Chandrachud, who authored the judgment, highlighted the reigning “confusion” in India on how to tackle the interface between personal laws and prohibition of child marriage. In fact, the CJI revealed that the Centre had, after the case was reserved for judgment, submitted a “note” pushing for a judicial declaration that PCMA would prevail over personal laws. Though the note referred to “conflicting” High Court judgments on the issue, the government never followed up by placing these “conflicting” verdicts on record.

The Court chose not to delve deeper into the issue, pointing out that an Amendment Bill, introduced in December 2021, expressly stating that PCMA would override personal laws was currently pending with the Parliament.

Patriarchal notions

The Court, possibly for the first time, drew attention to how boys suffer as much as girls in child marriages. The judgment said a ****tail of patriarchal notions of masculinity and sexual dominance and egregious misinformation by their peers often convince these tender minds to commit violence against their child brides.

Supreme Court questions logic behind exception to marital rape in penal law

“While girls are undoubtedly affected by child marriage disproportionately, we ought to also account for the tender minds of men who are forced into marriages as children. The right to childhood belongs to all sexes,” Chief Justice Chandrachud observed.

The judgment was based on petitions filed by NGOs, including Society for Enlightenment and Voluntary Action, which found the rate of child marriages alarming despite the enactment of PCMA nearly two decades ago. The apex Court said the centuries-old trajectory of child marriage in India was “threatening” modern laws like the Protection of Children from Sexual Offences Act (POCSO).

Why does child marriage continue to be an issue in India? | In Focus podcast

“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. The institution of child marriage, directly than any other institution, stipulates for the sexual abuse of child brides by design,” the CJI said.

The Court held that marrying in childhood has the effect of objectifying the child. The practice of child marriage imposed mature burdens on children. A minor was boxed with the expectation of compulsory heterosexuality. A girl was expected to bear children and prove her fertility upon marriage.

“The right to sexuality of a person is systematically dismantled… The ability of a person to experience sexual desire organically and to navigate their choice in intimacy is effaced at the altar of tradition,” the Chief Justice noted.

Guidelines to Government

The Court issued various guidelines to the government, including age-appropriate and culturally sensitive sexuality education for children in schools. It suggested a ‘Child Marriage Free Village’ drive, similar to the ‘Open Defecation Free Village’ move, involving local and community leaders.

The judgment recommended the Home Ministry to establish a designated portal for online reporting of child marriages; the Ministry of Women and Child Development to initiate a compensation scheme for girls opting out of child marriages; and an annual budget to prevent child marriages and support affected individuals.

Published - October 18, 2024 09:36 pm IST

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https://www.scconline.com/blog/post/2024/08/03/provisions-of-prohibition-of-child-marriage-act-will-supersede-muslim-personal-law-kerala-hc-scc-times/

Prohibition of Child Marriage Act will supersede Muslim Personal Law; every Indian a citizen first, religion comes later: Kerala HC “The Prohibition of Child Marriage Act, 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion” Published on August 3, 2024By Editor_4 Advertisement Kerala High Court: In a petition for quashing of proceedings filed by accused persons who were alleged to have conducted child marriage and committed offences punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006 (‘the Act’), claiming that the Muslim Personal Law would apply to the parties and not provisions of the Act, P.V. Kunhikrishnan, J., dismissed the petition, refusing to quash proceedings instituted against the accused and held that the Act would supersede Muslim personal law, and every citizen of the country, irrespective of religion was subject to the law of the land. Background Integrated Child Development Scheme Officer (‘ICDS Officer’) submitted a complaint to the Circle Inspector of Police informing of a child marriage that took place within the jurisdiction of ICDS Alathur Additional. Relying on the complaint in which it was stated that a child marriage took place on 30-12-2012, a complaint was registered alleging commission of offences punishable under Sections 10 and 11 of the Act. As per the State, accused 1 got his minor daughter married to accused 2, according to the religious tenets and rites in Islam. Accused 3 and 4 are the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee and accused 5 was the witness who signed the record. It was, therefore, alleged that all the accused persons had committed the offences. It was submitted by the accused persons that the parties involved were followers of Islam, hence a marriage below the age of 18 was not a void one. It was further averred that a Muslim girl enjoys a religious right known as ‘Khyar-ul-bulugh’ or ‘Option of Puberty’, a concept that was recognised under Mohammedan Law, which renders the marriage voidable at the instance of the girl upon attaining puberty. The accused persons submitted that that every child marriage, whether solemnized before or after the commencement of the Act 2006, was voidable only at the option of the married girl. It was also submitted that even as per the secular law, such marriages were not void ab initio, but only voidable at the option of contracting parties. It was contended that a Muslim girl, who had attained puberty, was 15 years, could marry and such a marriage would not be a void marriage. According to the accused persons, the Muslim personal law would prevail over the Act. The accused persons contended that even if the allegations were accepted, no offence under Sections 10 and 11 of the Prohibition Act would be attracted, therefore, the continuation of the present proceedings was abuse of the process of Court. The Amicus Curiae submitted that the Act being in force, the same will override personal law of the parties. Decision and Analysis Upon hearing the submissions made by the party and perusing the records, the Court alluded to the statement of objects and reasons of the Act and said that it was enacted by the Parliament to strengthen the provisions of the Child Marriage Restraint Act, 1929 more effective and for making the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriage in the country. Talking about whether Muslims were exempted from the applicability of the Act, the Court noted that Section 1 (2) of the Act says that, it extends to the whole of India and it applied also to all citizens of India, and that it was applicable irrespective of a person’s religion, whether a Hindu, Muslim, Parsi, Christian, etc. without and beyond India. The Court said that as Section 1(2) of Act, is applicable to all citizens of India without and beyond India., religion is secondary, and citizenship should come first. The Court, thus, opined that, irrespective of religion, whether a person is Hindu, Muslim, Christian, Parsi etc., Act 2006 is applicable to all.” Referring to the Majority Act, 1875 (‘Majority Act’) the Court noted that as per Section 3 thereunder provides every person domiciled in India shall attain the age of majority on his completing the age of 18 years and not before. The Court further noted that as per Section 2, the Majority Act would not be applicable toreligion or religious rites and usages of any class of citizens of India however, the Majority Act was enacted in the year 1875 and the Act come into force on 01-11-2007. Hence, the Court opined that the Act would override the provisions of the Majority Act as far as child marriage was concerned. The Court remarked that, “the prohibition of child marriage is important in the modern society. Child marriage denies children their basic human rights, including the right to education, health, and protection from exploitation. Early marriage and pregnancy can lead to health problems such as infant mortality, maternal mortality, and sexually transmitted infections. Child marriage often forces girls to drop out the school, limiting their education and future opportunities.” The Court, therefore, refused to quash proceedings against the accused persons and dismissed the petition. [Moidutty Musliyar v. State of Kerala, 2024 SCC OnLine Ker 4188, decided on 15-07-2024]...

https://www.scconline.com/blog/post/2024/08/03/provisions-of-prohibition-of-child-marriage-act-will-supersede-muslim-personal-law-kerala-hc-scc-times/

Admin · Oct 20, 2024

Challenge for Indian Muslims: The path to reform and reconciliation – Tariq Ashraf

Posted on Oct 20, 2024 by VOI

The painful legacy of India’s partition, drawn along communal lines, has left a heavy burden on the Muslim community. In response, Indian Muslims need to go above and beyond to heal the sentiments and emotions of the majority community. – Dr. Tariq Ashraf

The rise of right-wing politics in India seems to have solidified its presence, and the deepening of Hindu-Muslim fault lines is likely to persist. While liberal and secular parties may win several state elections, an increase in their numbers in parliament or state legislatures is unlikely to mend the fragile communal ties. The division between communities has now reached a deeper societal level, presenting a grave challenge for Indian Muslims. To minimise this damage and repair the social fabric, it is essential to promote a counter-narrative grounded in secularism.

Indian Muslims must focus on internal reforms that promote secularisation within their own societal framework. While some right-wing claims about Muslim life may be exaggerated or entirely untrue, certain aspects warrant closer introspection by the community itself. Although the issues have intensified since 2014, their roots can be traced back to much earlier times.

As Muslims, it is critical to rework the internal narrative and processes within the community to align with secular values. The painful legacy of India’s partition, drawn along communal lines, has left a heavy burden on the Muslim community. In response, Indian Muslims need to go above and beyond to heal the sentiments and emotions of the majority community. Despite constitutional protections and safeguards, the community needs to focus on changing perceptions at both societal and communal levels.

One step toward this change is to reform Muslim personal laws and harmonize them with a modern, progressive social order. Instead of framing personal law reforms as a Hindu-Muslim conflict, Muslims should see these reforms as standalone processes that benefit the community. A close examination of some outdated practices will reveal that reforms have already taken place in many Muslim-majority countries.

The All India Muslim Personal Law Board missed a crucial opportunity to declare triple talaq un-Islamic before the government passed legislation against it. Similarly, the Shah Bano case harmed the Muslim community’s interests and fueled the resurgence of right-wing mobilisation. The Muslim Personal Law Board has exacerbated the community’s challenges by opposing every proposed reform instead of acting as a forward-thinking, responsible institution.

Another significant issue facing Indian Muslims is the lack of leadership from within the intelligentsia. With few exceptions, Muslim leadership has been monopolised by the clergy, leaving the community without enlightened, visionary, and progressive guidance. The void left by Maulana Abul Kalam Azad has remained largely unfilled. Even leaders like Asaduddin Owaisi, despite their education and goodwill, have failed to adopt a liberal and secular approach in addressing legitimate community concerns. An aggrieved community must communicate in a conciliatory manner, rather than adopting a confrontational stance.

The Muslim leadership’s approach to the hijab controversy clearly illustrates this failure. While Muslim women are entitled to wear the hijab as a matter of choice and religious freedom, elevating the issue to the extent of students quitting their studies was unwise. It is essential for religion to be separated from public life and confined to the private domain. Although this holds true for all communities, Indian Muslims must make this move more emphatically due to historical reasons. The community needs to create a secular platform to address its concerns. The severe political and socio-economic challenges facing Muslims today cannot be ignored. One positive step in this direction has been the recent initiative by a group of retired civil servants from Delhi who attempted to engage with leaders from the Rashtriya Swayamsevak Sangh (RSS). However, the initiative failed to gain traction as it was undertaken individually without an organizational framework. To be successful, such efforts must be scaled up to a national-level dialogue with a clear agenda involving eminent citizens from various levels, including state and central governments. It is imperative to address the widespread perception that the Muslim community is resistant to reform, reconciliation, and compromise.

Before the Hindu-Muslim fault lines in India reach a dangerous level, the country urgently needs a period of cooling off. Many right-wing grievances against Muslims lack substance and truth. In a society governed by constitutional principles and the rule of law, a community cannot be punished for the historical wrongs committed by its ancestors.

To address the right-wing narrative effectively, the Muslim community must launch a secular, modern, and progressive narrative based on evidence, rather than countering with equally polarizing rhetoric. it is the only viable option. – The Pioneer, 1 October 2024

› Dr. Tariq Ashraf has been associated with the Centre for Policy Research, IIM Lucknow, University of Delhi, and Jamia Millia Islamia, New Delhi.