The government should take steps to bring back to India the UAE national who married a minor in Kerala for trial in the local courts, M.P. Achuthan of the Communist Party of India (CPI) demanded in the Rajya Sabha on Monday.

Raising the issue during Zero Hour, Mr. Achuthan said, “The government must make use of the extradition treaty between the two nations and bring the person to India for standing trial in Indian courts. The person concerned had married a 17-year-old girl from Kerala on June 13. After spending 17 days in various Indian locations as a married couple, he fled to the UAE. Before leaving, he divorced the girl uttering the word ‘Talaq’ thrice over phone. Though illegal, child marriage is rampant with 4,000 such cases reported in one Kerala district in 2009-10.”

Najma Heptulla (BJP) said the government should draft laws for Muslim women also. — PTI

Legal ambiguity

Krishnadas Rajagopal writes from Kozhikode: “In spite of several laws in existence, and the high level of social consciousness in Kerala, child marriages take place… Why?” Mr. Achuthan asked in a telephonic interview to The Hindu on Monday.

The reason for his distress can be found in the unresolved legal ambiguity on child marriage and the clash between personal laws and codified statutes on the subject. Facing a criminal case, the orphanage authorities, who had allegedly helped contract the marriage, have cited a State Local Self-Government Department circular of June 27, 2013, calling for compulsory registration of marriages even if either of the parties is a minor.

The department quotes a February 2006 Supreme Court order in the Seema vs Ashwani Kumar case to justify its circular.

The circular repeatedly marks that it is not meant as an affront to the Prohibition of Child Marriages (PCM) Act, 2006. The department says it was only clarifying uncertainties in a June 14 circular, which drew flak after it reasoned that neither the personal law nor the 2006 Act invalidates marriage to a girl aged below 18 and above 16 years.

The June 27 circular quotes the “growing social problem” of local bodies refusing to register marriages in which the bride is aged between 16 and 18 after the coming of the Kerala Marriage Registration (Public) Rules of 2008.

Mr. Achuthan said the circular had “no legal validity”. He said it would become “a source for people to take advantage of the poverty and ignorance of young women and their families.”

No endorsement

“Unlike what is interpreted from the department circulars, the Seema vs Ashwani Kumar order is not an endorsement of child marriage. It only holds that registration provides recognition to the pre-existing fact of marriage contracted,” said Kaleeswaram Raj, Kerala High Court lawyer and social critic. “In fact, the Supreme Court had made registration valid because if a victim of a child marriage, after attaining majority age, wants to invalidate her marriage, she can use the registration certificate in a court of law to claim maintenance,” Mr. Raj explained. He says circulars like this owe their existence to the “grey area” between parliamentary laws and personal laws on child marriage. The ambiguity over child marriage for lack of an authoritative law continues despite statutes like the Child Marriage Restraint Act of 1929 categorically calling it in its commentary a “special evil which has the potentialities of dangers to the life and health of a female child, who could not withstand the stress and strains of married life and to avoid early deaths of such minor mothers”. The pathos caused by the legal vacuum is most evident in the words of Acting Chief Justice (as he was then) of Delhi High Court, Justice A.K. Sikri, in his 62-page judgment in the Lajja Devi case of July 2012.

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