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An opportunity to advance substantive equality in child marriage laws

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Children hold placards during an awareness campaign against child marriage in Bikaner, Rajasthan. File

Children hold placards during an awareness campaign against child marriage in Bikaner, Rajasthan. File
| Photo Credit: PTI

In Sanjay Chaudhary v. Guddan (2024), the Allahabad High Court annulled the marriage of a couple, who got married when the man was 12 and the woman was nine, under the Prohibition of Child Marriage Act (PCMA), 2006. While the man had filed a petition for divorce when he was 20 years, 10 months and 28 days old, he later amended his plea for nullification of the marriage under Section 3 of the PCMA. This allows any party who got married as a child to seek annulment of the marriage as long as the petition is filed within two years of attaining majority.

Artificial differentiation

While ‘child’ in PCMA means a girl below 18 years and a boy below 21 years of age, under the Majority Act, 1875, majority is attained on completing the age of 18 years, without any distinction between men and women. A literal reading of the provisions of the PCMA thus suggests that both male and female parties can seek annulment before they attain 20 years of age. The question that arises is whether the male party can annul the marriage at 23 years or 20 years, due to the gender-based difference in the minimum age of marriage.

In 2011, the Madras High Court in T. Sivakumar v. The Inspector of Police held that a literal interpretation will create an unfair disadvantage for males married at 20 who, despite being married below the legal age, would not be able to annul their marriage, and thus interpreted the age limit for annulment for males to be 23. Now, the Allahabad High Court in Sanjay Chaudhary has countered this by reasoning that male parties entering into a marriage after attaining 18 years cannot claim ignorance of law or incapacity, as a male above 18 years is criminalised under PCMA for marrying a female child. The Allahabad High Court noted that the difference in the minimum age of marriage stems from patriarchal notions that expect men to be older and financially responsible in a marriage, while women are perceived as secondary partners and child-bearers. It opined that having the same age limit, i.e., within 20 years of age, to file a nullity petition is aligned with the principle of gender equality.

Despite these observations, the Allahabad High Court felt bound by the Supreme Court’s observation in Independent Thought v. Union of India (2017), which mentioned that men could file annulment petitions till the age of 23 years. Consequently, the Allahabad High Court annulled the child marriage, and the wife, aggrieved by this ruling, has appealed before the Supreme Court. While the Supreme Court will decide the age limit for boys and men to file nullity petitions under the PCMA, the High Court’s reasoning strikes at gendered assumptions that may require re-examining the legal age for marriage.

In Independent Thought, the issue before the Supreme Court was the constitutionality of the marital rape exception in respect of wives below 18 years, and not the age limit for filing a nullity petition under the PCMA. Its observation that “a male child can get the marriage annulled before attaining the age of 23 years” was made without examining in detail annulment under the PCMA. This interpretation results in a substantive unfair disadvantage, giving males more time than females to exit a child marriage, leaving wives unprotected and disproportionately affected, which undermines the central objective of the PCMA to protect and advance the status of women.

A case for no difference

This case exemplifies the need for an uniform age of marriage in India, but raising it to 21, as was proposed in the now-lapsed Prohibition of Child Marriage (Amendment) Bill, 2021, to delay pregnancy and marriage, and advance women’s education and health, will do more harm than good. Indian laws recognise 18 as the age at which all major civil and political rights take effect such as voting, buying and selling property, and entering into contracts, among others. To delay the civil right to enter into marriage and blur the distinction between adults and children would deprive adults between 18-21 years of their right to life, liberty, decisional autonomy, privacy, and dignity. A 2024 study by Enfold Proactive Health Trust and Civic Data Lab, based on 174 PCMA judgments from three States, revealed that 49.4% of these marriages were self-initiated, with the girls’ families lodging complaints in 80% of these cases as opposed to families reporting it in only 30.9% of arranged or forced marriages. Raising the age of marriage will further extend state and parental control over the agency of women to be with a partner of their choice. It will also place them at greater risk of deprivation of social protection and health services as they may fear criminal repercussions if their child marriage is reported. It will result in more arrests, detention, breakdown of families, and institutionalisation of young people, at a significant socio-economic and health cost, and overburden the criminal justice system. Gender equality and improved health maternal outcomes can be better achieved through less restrictive and more substantive alternatives such as access to free and compulsory education till 18 years, social security schemes, barrier free access to health services, and comprehensive sexuality education.

An opportunity

This is an opportunity to examine the injustice in women’s access to annulment arising from different minimum ages for marriage, consider an increase in the time limit for seeking annulment, and prescribe 18 as the uniform age of marriage for all genders.

Anindita Pattanayak, Legal Researcher at Enfold Proactive Health Trust; Swagata Raha, Director-Research at Enfold Proactive Health Trust



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