Legal proceedings against child marriages are commonly undertaken against elopements whereas forced child marriages often go unpunished, finds a new study.
The report — “Child Marriage Prosecutions in India” — brought out by Partners for Law in Development (PLD), a Delhi-based legal resource group, analysed 83 high court and district court verdicts in cases relating to child marriage from 2008 and 2017.
It selected for analysis judgments and orders in which child marriage was specifically mentioned. These included cases filed under the Prohibition of Child Marriages Act, 2006, as well as legal action initiated under other laws in relation to child marriage such as Protection of Children from Sexual Offences Act (POCSO), 2012, and the Indian Penal Code(IPC).
Twice the number
The study found that legal prosecution of child marriages was twice as much against elopement or self-arranged marriages by girls with such cases accounting for 65% ( 54 out of a total 83 cases) of the total cases studied. Only 30% of the cases were those of arranged child marriages, and a mere 5% were forced child marriages (such as those that involved kidnapping, enticement or forcible marriage by parents).
An analysis of who initiated the legal proceedings shows that it was primarily the parents of girls who approached the legal system with a complaint. A total of 56 of the 83 cases, or 67.4%, were initiated by parents or relatives. These included cases where parents sought custody of their daughter who had eloped or to prosecute the husband.
Only 7% of the cases were initiated by a child marriage prohibition officer — the State functionary designated for implementing the law. Another 7% of the cases were filed by a third party, including an NGO, or suo moto action by the court.
Girls accessed the law on their own the least, with only 3.5% of the cases filed to seek the nullification of their arranged marriage or to initiate criminal legal action against their parents for arranging an underage marriage.
Further, the punishment for elopement versus forced and arranged child marriages were hugely disproportionate. The former could invite a punishment of 10 years to life imprisonment if convicted for rape under the IPC or a jail of 20 years to a maximum punishment of death under the POCSO Act, whereas the latter under the PCMA comes with no minimum sentence and a maximum sentence of imprisonment for two years and/or a fine. The study terms this “weaponisation of the law to settle family dishonour”.
That the law is tilted against older adolescents is also borne out by national crime data. In 2019, 525 cases were registered under the PCMA, compared with 6,590 children who were “deemed” to have been kidnapped on account of an elopement or love relationship and 12,724 cases of children who were kidnapped for the purpose of marriage.
“The unintended harm of the law needs to be corrected. Law reform in this area must aim to shield the young in self-arranged marriages, while activating the frontline workers and child protection system against forced marriages. The empowerment of the girl, recognition of her voice and affirmative action to secure girls at risk with educational and livelihood opportunities must be at the heart of responses to child marriage,” says Madhu Mehra, the lead author of the study and Head, Research and Training, at PLD.
She adds that the POCSO must be amended to de-criminalise non-coercive consensual sexual relations between peers, by recognising consent under these conditions between 16-18 years.