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Monday, September 27, 2021

PCMA made ineffective by not superseding Personal Laws – Part 2

Part I of this series discussed discrepancies and absence of consistency among different laws addressing crimes relating to children including laws against child marriage.

It also described the provisions of the Prohibition of Child Marriage Act (PCMA) 2006 enacted with the purpose of preventing child marriages across the board by overriding child-marriage related loopholes in the various personal laws.

We discuss here the specific conflict issues between PCMA and some personal laws and how cases have been viewed through the prism of personal laws rather than purely under PCMA.

Conflict between PCMA and personal laws

• Under the Hindu Marriage Act, there is no provision to punish the parents or those who solemnize the marriage. Only the parties involved in the marriage are subject to punishment. A girl can appeal for getting the marriage annulled only if she has been married off before 15 years and must do so before she turns 18.

• Muslim Personal law is not codified and is therefore subject to interpretation of the Quran by Muslim scholars. Under this law, there is no bar on child marriage. A guardian has the right to get the child married. Alternatively, there is the option of puberty and under this law the age of puberty is 15 years.

• Similarly, the Jewish personal law is not codified and under this law the marriageable age is the age of puberty which is fixed at 12 years.

• Under the Indian Christian Marriage Act, minors must give a notice for 14 days and if there are no objections, they can go ahead and get married without the consent of their guardians.

Application of PCMA for different cases

Since the PCMA was enacted with the purpose of being uniformly applied to all faiths, it has been termed as a secular law. But analysis of court cases shows that the law has hardly been used to supersede personal laws to invalidate cases of child marriage.

In the Lajja versus State case, where Meera, 13, had eloped and married Charan Singh, the PCMA was made to prevail and the bench held that “the validity of the marriage contracted between Ms. Meera and Charan Singh would be voidable and Ms. Meera would continue to stay with her parents up until she attainted the age of majority. After that, it would be her choice to decide upon the annulment of the said marriage.”

The judgement was in keeping with Sections 3 and 9 of PCMA, section 5(iii) of the Hindu Marriage Act, Section 6(c) of the Hindu Guardianship Act, and Section 362 of the Indian Penal Code. In other words, since PCMA did not conflict with the personal law, it could prevail. This marriage was voided only because voiding it was in keeping with the Hindu Marriage Act.

In the Yusuf Ibrahim Mohammad Lokhat versus State of Gujarat case of 2014, the girl was 17 and had eloped and married a 21 year old man. Her parents petitioned against the marriage as she was a minor. The court ruled against the parents’ petition and upheld the marriage, since it was in keeping with the Muslim Personal Law.According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents.” Apparently, the parents had also later accepted the marriage.

On this verdict, the view expressed was, “This clearly gives the idea that according to the learned judges, the personal laws should be taken as a primary source to decide the cases of underage marriage. In 2015, the Madras High Court declared that PCMA applies to every community and is not against Muslim law. There are no judgements by Supreme Court to settle this point. Thus, the state of ambiguity and irregularity is not resolved yet.

In a very recent case similar to the Yusuf Lokhat case, a 17 year old married a 36 year old man in a Muslim wedding and the court granted protection to the couple once again raising the question of whether the PCMA can supersede the Muslim Personal Law.

In the Jitender Kumar Sharma v. State and Another case, 16 year old Poonam eloped with 18 year old Jitender and married him with Hindu rites.  Her parents filed a complaint of kidnapping but Poonam asserted she had married of her own free will and the elders in her family wanted to get her married without her consent. The court upheld the marriage citing that the marriage must primarily be viewed from the personal law perspective and a Hindu marriage that is not void under the HMA can continue as long as Section 12 of PCMA is not violated.

These cases show that personal laws are not being superseded. The question is, should provisions of personal laws be applied to declare marriages as valid or should the PCMA override the personal laws. Can the PCMA be called a secular law when personal law provisions are being considered in the verdicts? The authors here maintain that if PCMA is a secular law, “then all child marriages, regardless of them being protected under the shelter of personal law, will be voidable.”

The authors assert that the PCMA cannot be called a secular law since the law itself does not mention that it intends to override all personal laws. They state that in the Jitender Sharma case, the judgment itself mentions that the status of such a marriage under the Muslim Personal Law was kept outside the ambit of the case since the Muslim Personal Law recognizes marriage of minors who have attained puberty. The authors say, “…This is self-contradictory as on one hand, the judgment claims the PCMA to be secular and on the other hand reduces the extent of its applicability on Muslim personal law.” They ask, “Is the interpretation of the PCMA truly secular as claimed if the law does not interfere with Muslim Personal Law?”

A recent judgment granted the protection petition for a runaway couple in a case where the girl Jaspreet was 18 and the boy Azim Khan was underage but of “marriageable age” per the Muslim Personal Law. The protection was granted based on the Supreme Court 2020 judgment where it was held that “if a girl/woman is above marriageable age in terms of the Child Marriage Act (above 18 years), no offence punishable under the provisions of that Act would be made out.”

All the above cases show that personal laws are not being superseded. The verdicts almost seem to be guided by an unwritten thumb-rule of not superseding the Muslim Personal Law. For consistency, a similar standard is being applied to Hindu child marriages too.

A remark of Supreme Court Judge A.K. Sikri at the release of child-marriage statistics in June 2017 provides a clue. “PCMA is a secular law. But the Muslim personal law says once a girl attains puberty, she is ready for marriage. Nowadays, a girl attains puberty at the age of 11,” adding, “child marriage was one of those laws that had failed to deliver because of non-acceptance by society.”

References:

https://lawcommissionofindia.nic.in/reports/report205.pdf

https://blog.ipleaders.in/laws-child-marriage-india/


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Anuradha
Writer, Editor, Researcher

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