Earlier this week, Rajasthan governor Kalraj Mishra put on hold for further legal examination the controversial Compulsory Registration of Marriage (Amendment) Bill, 2021. The state legislative assembly had passed the bill, which allowed for registration of child marriages, in September. Everyone, from civil society to activists to the opposition BJP, protested vociferously.
Activists said the Bill ostensibly legitimized child marriage, taking Rajasthan “100 years back”. The government said the Bill was a logical follow through of the Prohibition of Child Marriage Act (PCMA) 2006, which said all marriages should be registered. Merely registering a child marriage, the government said, would not make it legal but would instead give some power to widowed or abandoned victims of child marriage and legitimacy to children born out of such unions.
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More than 200 years ago, child marriage was acceptable across India. The reformer Raja Ram Mohan Roy, who campaigned strongly against child marriage, was married in 1781 at the age of nine. When his wife died soon after, he was married again at 10. When the Child Marriage Restraint Act, or the Sharda Act, was passed in 1929, the minimum age of marriage for girls was fixed at 14 years and boys at 18 years. In 1949, after Independence, the minimum age was amended to 15 for girls. In 1978, it became 18 for girls and 21 for boys. The 2006 Act kept the same minimum ages, but provided clarity on the status of children forced into marriages and avenues for redressal. Yet, child marriages continue across the country.
The 2006 Act makes it clear that child marriage is illegal and voidable. It also spells out the details of when such marriages can be annulled, what happens to the money and gifts given by the girl’s family, who should care for the girl and what happens to children born of such a marriage. There’s enough protection under the 2006 Act to make the Rajasthan government’s move to amend it seem puzzling.
Dr. Kriti Bharti, managing trustee of Jodhpur-based Saarthi Trust, has filed a public interest petition in the Rajasthan High Court challenging the constitutional validity of this amendment. Dr. Bharti is a rehabilitation psychologist who has helped 43 child brides have their marriages annulled and stopped at least 1500 child marriages. Under the PCMA 2006, if either of the individuals in the marriage appeals to the court within two years of reaching maturity, the marriage can be annulled—it’s a provision not many knew of till Dr. Bharti used it in 2012.
Dr. Bharti started working with child brides when Laxmi Sargara of Jodhpur asked her for help in 2012. Sargara had been married when she was one year old. After her 18th birthday, when her parents told her she’d be sent to live with her husband, she ran away. When Sargara approached her, Dr. Bharti was working with trafficked women and child labourers. She didn’t know anything about rescuing child brides.
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“I consulted many lawyers,” she told me during a chat over the phone a couple of years ago. “Everyone suggested that the girl get a divorce. But in our society, ‘divorce’ carries a stigma and I felt that she should not have to carry that burden for no fault of hers.”
Lawyers finally helped her find the relevant part of the PCMA law which set Laxmi free. Dr. Bharti entered the Limca Book of Records as the first person to get a child marriage annulled in India. Getting a marriage annulled is not easy, Dr Bharti told me. She spoke about Sushila Bishnoi, who ran away from home when her parents wanted her to live with a man she was wedded to at the age of 12. The man denied he had ever been married to her. Without proof of their marriage, she could not get it annulled. Dr. Bharti hit on the idea of trawling his Facebook account for evidence. She found pictures from seven years before when they had been married. The court accepted this evidence and Bishnoi was freed. Would registering such a marriage when it happened have helped the girl? Would the guardians have actually registered an illegal act?
Rajasthan has the dubious distinction of having the largest number of child brides in India. According to the latest NFHS data, 7.9 percent women in the 15-19 age group were already mothers or pregnant at the time of survey. Parents are anxious to marry off underage children even though they know it is illegal because dowry is still prevalent. Dowries are lower for underage girls, and so are the marriage expenses because they have to be kept a secret.
In Rajasthan, activists tell me, child marriages are conducted surreptitiously. No outsiders are invited. No photographs, invitation cards or grand feasts. The location is kept secret and sometimes a married couple (who are both majors) are “kept as standby” in case of a police raid. Even if a child marriage is prevented and the parents are counselled, there is no guarantee that they won’t change the date and venue and go through with it.
During the pandemic, there has been a sharp increase in child marriages. UNICEF estimates suggest that while 110 million child marriages took place globally and an estimated 25 million were averted over the decade 2011-2020, this trend may now be reversed. UNICEF now projects that up to 10 million more girls are at risk of child marriage in the decade 2021-2030.
Many factors contributed to this, including job losses, increased poverty and economic distress. With schools closed and midday meals not being served, parents did not want to worry about the safety of young girls or have to look after them. Already married underage girls were packed off to their spousal homes even if their parents had been waiting for them to reach the legal age. It became easier to conduct clandestine child marriages as the social workers and child welfare officers were busy with covid-19 relief work.
It’s clear that unless the core issues of poverty, disempowerment and patriarchy are addressed, child marriage will continue. The fact that this “tradition” still survives though we have had laws banning it for close to 100 years should tell us something.
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