Society for Enlightenment and Voluntary Action vs Union of India

Reportable 2024 INSC 790 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

Writ Petition (C) No. 1234 of 2017

Society for Enlightenment and Voluntary Action & Anr. …Petitioners

Versus

Union of India & Ors. …Respondents

Signature Not Verified Digitally signed by Sanjay Kumar Date: 2024.10.18 15:55:42 IST Reason: Page 1 of 141 JUDGMENT

Dr Dhananjaya Y Chandrachud, CJI

Table of Contents I. Background ................................................................................................... 6

II. Procedural history and submissions.......................................................... 9

III. A vicious cycle: socio-economic determinants and effects of child

marriage .............................................................................................................. 14

IV. A national reckoning: child marriage in India ...................................... 18

A. The age of consent ................................................................................. 18

i. Rukhmabai’s case ................................................................................. 20

ii. Phulmoni Dasi’s case ............................................................................ 24

B. Regulating the age of marriage ............................................................. 25

C. The Child Marriage Restraint Act 1929 ................................................. 27

V. Contemporary legal framework ................................................................. 31

A. The Prohibition of Child Marriage Act 2006.......................................... 31

i. Recourse to the wedded: maintenance, residence and custody ........... 34

ii. Penalties for child marriage ................................................................... 38

iii. Preventive measures under the PCMA ................................................. 45

Injunctions against child marriage ............................................................. 45

Child Marriage Prohibition Officers ........................................................... 49

Page 2 of 141 B. The Protection of Children from Sexual Offences Act 2012 ............... 53

C. The Juvenile Justice (Care and Protection of Children) Act 2015 ...... 55

D. The Commissions for Protection of Child Rights Act 2005 ................ 59

E. The Legal Services Authorities Act 1987 .............................................. 61

F. Policies formulated by the Union Government .................................... 62

G. States’ efforts to curb child marriage ................................................... 65

i. Training schemes .................................................................................. 65

ii. Awareness programs............................................................................. 66

iii. Financial incentives ............................................................................... 68

iv. Other initiatives ...................................................................................... 69

v. Impact analysis of State schemes ......................................................... 70

VI. Traversing frontiers: international human rights norms..................... 72

A. Universal framework ............................................................................... 73

i. Universal Declaration of Human Rights................................................. 73

ii. Recognition in political conventions....................................................... 74

iii. Targeted focus: the Convention on the Elimination of All Forms of

Discrimination against Women and the Convention on the Rights of the

Child. ............................................................................................................ 75

B. Regional framework ................................................................................ 77

i. African Union ......................................................................................... 78

ii. European Union .................................................................................... 80

iii. SAARC .................................................................................................. 83

Page 3 of 141 C. Rights based framework ........................................................................ 84

i. Right to free choice and autonomy ........................................................ 86

a. Right to free and informed consent .................................................... 87

b. Right against gender-based violence................................................. 89

ii. Right to education ................................................................................. 91

a. Right to primary education ................................................................. 91

b. Right to be informed........................................................................... 92

c. Right to sex education ....................................................................... 93

iii. Right to development of children ........................................................... 94

VII. India’s obligation .................................................................................... 96

VIII. Constitutional guarantees against child marriage............................... 98

A. Right to self-determination: choice, autonomy and sexuality of

children ......................................................................................................... 100

B. Right to health ....................................................................................... 105

C. Right to childhood: education and development............................... 107

D. Reiterating the States’ obligations towards combatting child marriage

112

IX. Way forward .......................................................................................... 116

A. Legal Enforcement ................................................................................ 118

B. Judicial Measures ................................................................................. 122

C. Community Involvement ...................................................................... 124

D. Awareness Campaigns ......................................................................... 125

Page 4 of 141 E. Training/Capacity Building................................................................... 128

F. Educational and Social Support .......................................................... 131

G. Monitoring and Accountability ............................................................ 133

H. Technology-Driven Initiatives for Reporting Child Marriage ............ 135

I. Funding and Resources ....................................................................... 136

X. Suggestions .............................................................................................. 138

XI. Conclusion ............................................................................................ 140

Page 5 of 141 PART I

“Sir, I am one of those unfortunate Hindu women, whose hard lot it is to suffer the unnameable miseries entailed by the custom of early marriage. This wicked practice has destroyed the happiness of my life. It comes between me and that thing which I prize above all others—study and mental cultivation. Without the least fault of mine I am doomed to seclusion; every aspiration of mine to rise above my ignorant sisters is looked upon with suspicion, and is interpreted in the most uncharitable manner.” 1

~ Rukhmabai

I. Background

1. The Petitioner has approached this court under Article 32 of the Constitution to

raise an issue which has been debated in our nation for over one and a half

centuries. The Petitioner is an NGO that has worked extensively against child

marriage. The Petitioner’s primary grievance is that despite the enactment of

the Prohibition of Child Marriage Act 2006 2, the rate of child marriages in India

is alarming. The Petitioner seeks to address the failure of authorities to prevent

child marriages. The Petitioner has sought stronger enforcement mechanisms,

awareness programs, the appointment of Child Marriage Prohibition Officers,

and comprehensive support systems for child brides – including education,

healthcare, and compensation, to ensure the protection and welfare of

vulnerable minors. Accordingly, the Petitioner prays for the issuance of effective

guidelines.

1 Extracted from a letter written by Rukhmabai to the Times of India on 26 June 1885. 2 ‘PCMA’

Page 6 of 141 PART I

2. Child marriage is a social evil, and its commission is a criminal offence. Despite

the near-universal agreement on the ills of child marriage, its commission and

prevalence have been sobering. Child marriage is the phenomenon of children

being married before they attain the minimum legal age under the law. Globally,

children continue – despite legal norms to the contrary – to be married before

they reach the age of eighteen years. Patriarchy, gender inequality, poverty and

lack of education and employment lead to child marriage. 3 The UN Convention

on the Rights of the Child regards child marriage as a violation of human rights 4.

While both sexes are inflicted with the violence of child marriages, the

prevalence of child marriage globally among boys is one-sixth that of girls. 5

3. Elimination of child, early and forced marriages has been committed to by one

hundred and ninety-three nations, including India under target 5.3 6 of the

Sustainable Development Goals 7. Section 2 8 of PCMA defines child marriage

as a marriage to which either of the contracting parties is a child. Girls below

the age of eighteen and boys below the age of twenty-one are deemed to be

children under the PCMA. 9

3 UNICEF (2023). Child Marriage. https://www.unicef.org/protection/child-marriage; Anita Raj (2010). When the mother is a child: the impact of child marriage on the health and human rights of girls. Archives of Disease in Childhood, 95(11), 931. BJM Journals.

4 United Nations (1989). Convention on the Rights of the Child. 5 UNICEF (2019). 115 Million Boys and Men Around the World Married as Children. https://www.unicef.org/press-releases/115-million-boys-and-men-around-world-married-children-unicef. 6 United Nations (2015). Transforming our world: The 2030 Agenda for Sustainable Development. 7 ‘SDG’ 8 “2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(c) “contracting party”, in relation to a marriage, means either of the parties whose marriage is or is about to be thereby solemnised; …” 9 Section 2(a), PCMA.

Page 7 of 141 PART I

4. The 2019-2021 National Family Health Survey-5 10 pits child marriage at 23.3%

of girls 11 under the age of eighteen and 17.7% of boys 12 under the age of

twenty-one. The data is based on a survey of women aged 20-24 and men aged

25-29. This is a reduction from the 2015-2016 NFHS-4 which showed that

26.8% of girls and 20.3% of boys marry under the legal age of marriage. Child

marriage has been on a steady decline in India. The prevalence of child

marriages in India has halved since the enactment of the PCMA in 2006 from

47% to 27% in 2015-16 and 23.3% in 2019-2021.13 The decline in child

marriage in India is in line with the global trend. In the past decade, the

proportion of girls married as children has dropped by 15%.14 Despite these

enormous strides globally and in India, no region in the world is on track to attain

the SDG-5 target. 15 It is estimated that the progress in reducing child marriage

would need to be twelve times faster than the rate observed in the past decade

to achieve the SDG-5 target. 16

5. The term child marriage is an oxymoron. A child implies a person whose

capacity to make legal decisions is not fully developed. On the other hand,

marriage is an institution with legal standing. The law seeks to govern the

legitimacy of sexual activity and marriage is the institution in which it is

legitimised. Marriage dictates the framework rules of permissible and

10 ‘NFHS-5’ 11 Data based on the survey of women ages 20-24, NFHS-5.

12 Data based on the survey of men ages 25-29, NFHS-5.

13 NFHS-3, NFHS-4, NFHS-5.

14 UNICEF (2018). Child Marriage: Latest trends and future prospects. https://data.unicef.org/resources/child- marriage-latest-trends-and-future-prospects/.

15 Ibid.

16 Pintu Paul (2020). Child Marriage Among Girls in India: Prevalence, Trends and Socio-Economic Correlates. Indian Journal of Human Development, 14(2), 304. Sage Journals.

Page 8 of 141 PART II

impermissible social behaviours. However, a child is incapable of

understanding the broad and serious obligations expected from members of a

marital union. Child marriage often deprives children of intellectual, social and

psychological development and carries life-threatening risks. It therefore comes

as a great tragedy that the term child marriage is normalised to a point where

this blatant paradox is lost on most people.

II. Procedural history and submissions

6. This Court issued notice to the Union of India on 13 April 2018. On 13 April

2023, this Court further directed the Ministry of Women and Child Development

to file a status report elucidating the following:

(i) The data collected from various States bearing on the nature and extent

of child marriages;

(ii) Steps taken to implement the provisions of the PCMA; and

(iii) The policies formulated by the Union government to effectuate the

purpose.

The Court also directed the Union to consult the States on the appointment of

Child Marriage Prohibition Officers 17 under Section 16 18 of the PCMA and

17 ‘CMPO’ 18 “16. Child Marriage Prohibition Officers (1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification. (2) The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.

Page 9 of 141 PART II

submit a comprehensive affidavit on whether the officers appointed as CMPOs

are given other multifarious duties.

7. The Ministry of Women and Child Development has submitted that it has

successfully collected data from all States and Union Territories except

Arunachal Pradesh, Goa, Manipur, Odisha, Sikkim, Jammu & Kashmir and

Lakshadweep. The data placed on record by the Ministry reflects that many

child marriages are prevented before their solemnization. The remaining cases

are investigated and prosecuted under the law. We shall analyse the data

submitted by the Ministry of Women and Child Development in the course of

this judgment.

8. On 10 July 2024, this Court heard Ms Mugdha, learned counsel appearing on

behalf of the Petitioner as well as Ms Aishwarya Bhati, learned Additional

Solicitor General appearing on behalf of the Union of India. While reserving the

judgment this Court granted liberty to the Petitioner and the Union to make their

submissions in the form of a note including suggestions on ways for the

effective enforcement of PCMA.

(3) It shall be the duty of the Child Marriage Prohibition Officer

(a) to prevent solemnisation of child marriages by taking such action as he may deem fit;

(b) to collect evidence for the effective prosecution of persons contravening the provisions of this Act;

(c) to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages;

(d) to create awareness of the evil which results from child marriages;

(e) to sensitised the community on the issue of child marriages;

(f) to furnish such periodical returns and statistics as the State Government may direct; and

(g) to discharge such other functions and duties as may be assigned to him by the State Government. (3) The State Government may, by notification in the Official Gazette, subject to such conditions and limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject to such conditions and limitations, as may be specified in the notification. (4) The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3.”

Page 10 of 141 PART II

9. The Petitioner has submitted that:

(i) Data from NFHS-4 and NFHS-5 reflects that high rate of child marriages

have been solemnised. The Petitioner submits that this can be gathered

from the rate of adolescent pregnancies in multiple States;

(ii) Under Section 16 of PCMA, CMPOs are empowered to prevent child

marriages. However, findings from HAQ - Centre for Child Rights 19 show

that CMPOs are often tasked with multiple responsibilities, limiting their

capacity to focus on child marriage prevention. Many States designate

officials holding other substantial roles, such as Child Development Project

Officers 20 or District Welfare Officers as the CMPO. This leads to CMPOs

prioritising their duties in the discharge of other roles – defeating the

purpose of appointing CMPOs - as they would not have the time, monetary

and human resources to carry out the responsibilities enumerated in the

Act. For instance, Section 3(1) of the Mizoram Gazette mandates that the

District Social Welfare Officer or, in their absence, the CDPO acts as the

CMPO;

(iii) Responses to various requests under the Right to Information Act 2005 21

by all States and UTs reveal significant disparities in the appointment and

functionality of CMPOs. Of the 36 States and UTs, only 23 responded, and

only 14 provided substantive data. Most of the responses indicated the

19 HAQ Centre for Child Rights (n.d.). Child Marriage in India: Achievements, Gaps and Challenges, Response to Questions for OHCHR Report on Preventing Child, Early and Forced Marriages for Twenty-

sixth Session of the Human Rights Council.

20 ‘CDPOs’ 21 ‘RTI’

Page 11 of 141 PART II

transfer of the RTI to other departments without concrete answers.

Notably, only Haryana and Sikkim reported having exclusively appointed

CMPOs. In contrast, other States and UTs assign these duties to already

overburdened officers, such as District Magistrates or CDPOs,

undermining the effectiveness of CMPOs;

(iv) There is a discrepancy between data from the National Crime Records

Bureau 22 and information obtained from various State departments in

response to RTIs. For example, in Rajasthan, the Department of Women

and Child Development reported 573 and 567 incidents of child marriage

in 2015-16 and 2016-17, respectively, despite only 576 cases being

formally recognized by authorities in 2016-17; and

(v) Analysis of data further reveals not only a low number of child marriage

cases reported to the police compared to NFHS-4 data but also an

exceptionally low conviction rate.

10. Therefore, the Petitioner prays for directives to authorities at multiple levels to

prevent and address child marriages, particularly during mass events, ensure

accountability for officials who fail in this duty, and appointment of CMPOs with

exclusive powers. They also seek collaboration with NGOs, inclusion of child

marriage awareness in school curriculums, and comprehensive government

support for affected child brides.

22 ‘NCRB’

Page 12 of 141 PART II

11. The Union of India has submitted that:

(i) Child marriages persist due to societal perceptions and economic

pressures. Girls are often seen as burdens, with early marriage viewed as

an appropriate option. Additionally, investment in a girl’s education is

frequently regarded as wasteful, leading some families to end schooling

early and consider marriage instead. Poverty and structural inequalities,

including gender, caste, and class, further drive child marriages;

(ii) The PCMA was introduced to criminalize the facilitation and solemnization

of child marriage, aiming to deter this harmful practice. Additionally, the

Beti Bachao Beti Padhao 23 program addresses gender-based issues by

promoting girls' education and empowerment, thereby supporting delayed

marriage and promoting a culture that values girls’ rights and

opportunities;

(iii) Census data from 2001 and 2011 indicates a decrease in child marriage

rates;

(iv) Data from NFHS-4 shows a reduction in the percentage of women aged

15-19 who were mothers or pregnant, from 16% in 2005-06 to 7.9% in

2015-16. The National Commission for the Protection of Child Rights 24 has

identified 70 high-risk districts across 13 states with the highest child

23 ‘BBBP’ 24 ‘NCPCR’

Page 13 of 141 PART III

marriage rates, and 52 of these districts are covered under the BBBP

scheme;

(v) Programs like the Mahila Shakti Kendra aim to reach rural women and

girls, enhancing awareness and equipping them with knowledge on

gender equality. The program operates District Level Centres for Women

across 640 districts to implement initiatives that improve women’s status

and address gender-based challenges; and

(vi) States and Union Territories 25 have also taken various measures for the

elimination of child marriages.

III. A vicious cycle: socio-economic determinants and effects of child marriage

12. All child marriages are forced marriages. Many parents wish to marry their girl

child early to guard against any aspersions on the girl’s virtue of virginity and to

mitigate the economic costs associated with raising a child, payment of dowry

and conducting a wedding. The economic factors of child marriage are borne

out by studies that reflect that child marriage in India predominantly occurs in

less educated, rural and poor families. 26 Parents in such families are informed

by a survivalist and patriarchal mindset that responds to social, cultural and

religious norms and economic necessity.

13. Culturally embedded concepts of virginity and chastity are used to control the

sexuality of women by men and the family. They are not just markers of control

25 ‘UTs’ 26 Sanjay Kumar (2020). Trends, Differentials and Determinants of Child Marriage in India: Evidence from Large-scale Surveys. Economic & Political Weekly, 55(6), 57.

Page 14 of 141 PART III

but are also made into identifiers of family and community honour. By placing

an overemphasis on these constructed virtues, a false sense of protectionism

is generated to safeguard girls against their ability of self-exploration and to

form meaningful bonds on their own. Honour, purity, and decisional incapacity

are presented as the domain of womanhood and its protection is laid in the

institution of marriage. Parents marry their daughters early to meet the

prescription of a society rooted in parochial norms of controlling a woman’s

sexuality. While patriarchy promises respect to its adherents, it only leads to the

subordination of women who are deprived of any meaningful avenue to develop

their agency and exercise their autonomy. The malleability of a girl child and

her inability to form informed opinions are looked up to as desirable qualities.

These qualities are understood to earn her favour in the eyes of her in-laws in

serving them as they see fit. 27 In less educated, rural and poor setups, members

of the community lack effective opportunities and life chances. Investing in the

education and development of a girl is seen as unworthy and unrealistic. The

lack of alternative means for education, employment and skill development for

women also incentivises parents to give their daughters away in child marriage.

14. Parents also believe that their daughters would be saved from pregnancy out

of wedlock and be guarded against unsolicited advances by men if she were to

be married early. Many marry their daughters off but delay the consummation

of marriage till the age of puberty. A gauna ceremony is performed to mark the

growing up of the daughter and her departure from the parental home to the

27 See RC Roy (1888). Child Marriage in India. The North America Review 147(383) 415-423. University of Iowa.

Page 15 of 141 PART III

marital home upon getting menses. The delay in sending a child bride to her

marital home is informed only by the bodily development of the girl and is

unbothered by any other consideration, such as the mental and educational

development of the person or indeed her own choice in the matter. The

compounding of one evil to emerge out of patriarchy with another solution

rooted in patriarchy has the effect of culturally stunting society and depriving

children, girls in particular, of any avenue to exit from the cycle of generational

oppression.

15. Notably, the very causes of child marriage ensure that members of the marital

union and their families are stuck in the vicious cycle of social and economic

oppression. Early marriage in girls, places a burden on them to discharge their

duty of giving offspring to the family. Sexual activity within the marital union is

unregulated and even encouraged. A child, forced to prove her fertility, is

exposed to enormous health risks. Her body is mentally and physically

unprepared for sexual engagement which is forced upon her. Girls in child

marriage report early, frequent and unplanned pregnancies which are linked to

increased risk of maternal and infant morbidity and mortality.

16. Adolescent mothers are also likely to experience fistula, pregnancy

complications and death during childbirth.28 Women married as children are

likely to have their first child before the age of eighteen and are likely to have

had at least three or more childbirths and a repeat childbirth in less than twenty-

28 Anita Raj, Niranjan Saggurti, Donta Balaiah, Jay G Silverman (2009). Prevalence of child marriage and it effect on fertility and fertility-control outcomes of young women in India: a cross-sectional, observational study. Lancet 373 1993-89.

Page 16 of 141 PART III

four months. 29 Currently, between the ages of 15 and 19, 7% of women have

begun childbearing; 5% of women have successfully delivered, while 2% of

women are pregnant with their first child.30 The rate of teenage pregnancy is

higher in rural India at 8%.31 States which have reported the highest levels of

teenage pregnancies are Tripura (22%), West Bengal (16%), Andhra Pradesh

(13%), Assam (12%), Bihar (11%) and Jharkhand (10%).32

17. These factors have a detrimental effect on maternal mortality and morbidity.

Adolescent mothers are likely to develop lifelong health consequences from

sexual encounters and childbearing. They are also more likely to be sterilized

at an early age which is indicative of a lack of control over their choices. 33

Families after bearing the desired number of offspring, force women to undergo

sterilization to control further reproduction in the family. 34 The high rate of

sterilization found in women married as children would also lead to more

unprotected sex which leads to a risk of contracting sexually transmitted

diseases.

18. Lack of healthcare access in rural areas and for poor families may lead to further

health complications and unsafe medical procedures including unsafe

abortions. 35 Further, women married as children are deprived of educational

and employment opportunities thereby effacing them from public life. Education

29 Ibid.

30 NFHS-5, 116.

31 Ibid.

32 NFHS-5, 117.

33 Anita Raj (2010). When the mother is a child: the impact of child marriage on the health and human rights of girls. Archives of Disease in Childhood, 95(11), 931. BJM Journals. 34 Ibid.

35 Ibid.

Page 17 of 141 PART IV

has an inversely proportional effect on child marriage. 87% of married

adolescent girls did not attend school. 36 In India, women having twelve or more

years of schooling tend to marry much later than other women. The median age

at first marriage for women between the age of 25-49 increases from 17.1 years

for women with no schooling to 22.8 years for women with twelve or more years

of schooling. 37 This is in line with studies conducted at a global level which

reflect that child marriages are 66% lower among girls who complete secondary

education and 80% lower among those who pursue higher education.38

IV. A national reckoning: child marriage in India

A. The age of consent

19. The trajectory of child marriage in India is stubborn and persistent. It has

travelled centuries, and its opposition seems to have only incremental

successes each time. Still widely prevalent, 39 the first movement against child

marriage in modern India began in the latter part of the nineteenth century.

Social reformers were trying to build public opinion against child marriage. Two

concerns primarily animated the call against child marriages by early reformers.

The first was the high number of early widows. 40 Because the rate of mortality

was low, many girls found themselves in widowhood in the early years of their

lives. The second reason behind seeking child marriage reform was to protect

36 Government of India (2011). Census of India 2011.

37 NFHS-5, 208.

38 UNICEF (2019). Evidence Review: Child Marriage interventions and research from 2020 to 2022. 39 NFHS-5.

40 Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law Institute 22, 39.

Page 18 of 141 PART IV

young wives against forcible sexual intercourse, often by their husbands who

were significantly older. 41

20. Reformers like Ishwar Chandra Vidyasagar had successfully advocated for

widow remarriage which was hitherto believed to be impermissible under Hindu

law. These efforts led to the enactment of the Hindu Widows’ Remarriage Act

1856. However, the demands against child marriages were not immediately

realised. Child marriage, an aversion to widow remarriage and the low mortality

rate combined and morphed into a lethal destructive element in the Indian

society. 42

21. To address the devastation caused, in particular to women and girls, social

reformers called for raising the minimum age of consent for women in penal

rape statutes. The idea behind the demand for raising the age of consent was

to avoid the bodily harm inflicted on girls by their often-elderly husbands. A

person below the age of consent could not legally consent to any sexual activity

thereby throwing any sexual conduct within the confines of statutory rape. Such

laws already existed in the presidency towns of Calcutta, Madras and Bombay

as early as 1828.43 The laws in these presidency towns stipulated the age of

consent for girls to be eight years and the offence of rape against a girl below

the age of consent was punishable with death.44 In 1847, when the Law

Commission was drafting the Indian Penal Code it decided, for the first time, to

41 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 37.

42 Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law Institute 22, 39.

43 The Joshi Committee Report, 9.

44 Ibid.

Page 19 of 141 PART IV

criminalise the consummation of marriage by a husband with his underage wife.

The initial version of the Indian Penal Code 1860 45 stipulated the age of consent

to be ten years and criminalised marital rape by a husband against his wife

under the age of consent. 46

22. Raising the age of consent was seen as undue interference by the colonial

legislature into the personal laws of Indians. 47 The movement gained a

groundswell of support because of efforts by Behramji Malabari, a journalist

from Bombay, who began publishing his ‘notes’ in his newspaper the ‘Indian

Spectator’ in 1884. 48 He highlighted the consequences of ‘infant marriages’ and

‘enforced widowhoods’ by recounting anecdotal accounts of victims. His

polemical style of reporting sought to appeal to the humanity of the readers.49

Around the same time, two cases came to the fore and exposed the evils which

come out of child marriage.

i. Rukhmabai’s case

23. In 1874, at the age of eleven, Rukhmabai was married off to Dadaji Bhikaji, a

nineteen-year-old boy who was a cousin of her step-father. Owing to his

reformist views, Rukhmabai’s stepfather did not send her to live with Dadaji

Bhikaji immediately upon attaining puberty. Under his guidance, Rukhmabai

45 ‘IPC’ 46 Ss. 375, 376, IPC 1860 (initial version).

47 Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law Institute 22, 39.

48 Infant Marriage and Enforced Widowhood in India, Being a Collection of Opinions For and Against, Recorded by Mr. Behramji M. Malabari from Representative Hindu Gentlemen and Official and Other Authorities, Bombay (1887); Charles H. Heimsath, Indian Nationalism and Hindu Social Reform, Princeton University Press (1964), 151.

49 Charles H. Heimsath, Indian Nationalism and Hindu Social Reform, Princeton University Press (1964), 151; Geraldine Forbes, Women and Modernity: The Issue of Child Marriage in India, Women's Studies International Quarterly, 1979, Vol. 2, 407-419.

Page 20 of 141 PART IV

grew fond of studying and took plenty of advantage of the rich collection of

books he had accumulated. As Rukhmabai grew into an intelligent and forward-

thinking woman, Dadaji Bhikaji slipped into indolence. This led Rukhmabai to

refuse to live with Dadaji. 50 In 1884, Dadaji instituted a suit for restitution of

conjugal rights. At the time, a decree for restitution of conjugal rights was

enforceable and its violation was punishable with imprisonment. Rukhmabai

opposed the petition on the grounds of social, economic and personal

incompatibility with Dadaji. 51 She also asserted that she had not ‘arrived at

years of discretion’ at the time of her marriage and therefore she could not be

bound by it. 52 Justice Pinhey of the Bombay High Court dismissed the petition

and held that Rukhmabai was married before she could consent to such a

marriage and cannot therefore be compelled to live with her husband eleven

years later without having cohabited in all this time. He observed that:

“It is a misnomer to call this a suit for the restitution of conjugal rights. When a married couple, after cohabitation separate and live apart, either of them can bring a suit against the other for the restitution of conjugal rights according to the practice in England, and according to the later practice of the Courts in India. But the present suit is not of that character. The parties to the present suit went through the religious ceremony of marriage eleven years ago when the defendant was a child of eleven years of age. They have never cohabited. And now that the defendant is a woman of twenty-two, the plaintiff asks the Court to compel her to go to his house, that he may complete his contract with her by consummating the marriage, The defendant, being now of full age, objects to going to live with the

50 Sudhir Chandra. Enslaved Daughters: Colonialism, Law and Women's Rights. Oxford University Press, 2nd ed (2008), Ch. 1.

51 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 39.

52 Sudhir Chandra. Enslaved Daughters: Colonialism, Law and Women's Rights. Oxford University Press, 2nd ed (2008), Ch. 1.

Page 21 of 141 PART IV

plaintiff, objects to allowing him to consummate the marriage, objects to ratifying and completing the contract entered into on her behalf by her guardians while she was yet of tender age. It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will; and I am of opinion that neither the law nor the practice of our Courts either justified my malting such an order, or even justifies the plaintiff in maintaining the present suit.” (emphasis supplied)

24. The decision of Justice Pinhey was much ahead of its time. At a time when child

marriage was the norm and the legal standard of consent was inapplicable to

marital laws, Justice Pinhey’s judgment was a bold declaration of the rights of

Indian women to make their own life choices. Unfortunately, the success was

short-lived. The judgement had caused an uproar in the public and Dadaji filed

an appeal before the Division Bench of the Bombay High Court. The Division

Bench set aside the judgment of Justice Pinhey and directed Rukhmabai to join

Dadaji within a month at the pain of penalty to undergo six months’

imprisonment. The court reasoned that incompatibility was no defence under

Hindu law against a petition for restitution of conjugal rights. Firm as she was,

Rukhmabai refused to join Dadaji and declared that she would subject herself

to the maximum penalty admissible under the law, rather than to live with her

husband. The sight of a Hindu woman being imprisoned shocked the public

conscience. Dadaji entered a compromise and did not press for the execution

of the decree for restitution of conjugal rights against an amount of Rs 2000/-.

Rukhmabai went on to study medicine in the UK and became one of India’s

earliest women doctors.

Page 22 of 141 PART IV

25. Rukhmabai’s defiance was uncharacteristic for her time and threatened, not

only child marriage but also the indomitable idea of a woman’s inferiority. Her

assertion of womanhood and agency in refusing to go with a wayward husband

whom she was given to in marriage opened up new ways for women to imagine

their autonomy. Writing to the editor of the Times of India on 26 June 1885,

under the pseudo name ‘A Hindu Lady’, Rukhmabai eloquently drew the

differential plains on which the experiences of boys and girls in a child marriage

are placed. She wrote:

“The general apathy towards social improvements which characterizes our people has been telling upon the whole community, but tells most heavily upon the female sex. Hindu social customs do not entail on men half the difficulties which they entail upon women. Excepting the two principal difficulties resulting from infant marriage, they enjoy full mental and physical freedom. Religion or social custom does not, in any way, interfere with their liberty. Marriage does not interpose any insuperable obstacle in the course of their studies. They can marry not only a second wife, on the death of the first, but have the right of marrying any number of wives at one and the same time, or any time they please. If married early, they are not called upon to go to the house and to submit to the tender mercies of a mother-in-law; nor is any restraint put upon their actions because of their marriage. But the case with women is the very reverse of this. If the girl is married at the age of eight (as most of them are), her parents are at liberty to send her to school till she is ten years old; but, if they wish to continue her at school longer, they must obtain the express permission of the girl’s mother-in-law. But even in these advanced times, and even in Bombay—the chief centre of civilization—how many mothers-in-law are there who send their daughters to school after they are ten years old!” 53

53 Extracted from a letter written by Rukhmabai to the Times of India on 26 June 1885.

Page 23 of 141 PART IV

26. While Rukhmabai’s case ultimately witnessed an out of court settlement and

her freedom, another case around the same time jolted the conscience of the

Indian society.

ii. Phulmoni Dasi’s case

27. In 1889, Phulmoni Dasi was married off at the age of eleven years to a thirty-

five-year-old man. At age eleven years and three months, she was subjected

to marital rape by her husband, Hari Maiti. She succumbed to haemorrhage

from a rupture of the vagina caused by her husband. 54 The Court ruled that the

law of rape was inapplicable because Phulmani had reached her tenth birthday

and was married to Hari. The coverage of the case as well as the trial cast a

male medical gaze over the body of the deceased victim. Even after her death,

she was subjected to scrutiny to determine her true age and growth. Questions

of her immaturity and puberty were not sought as an ornate way to bring her

husband to justice but were rather asked to defend him.

28. The gruesome case of Phulmani galvanised support for Malabari’s campaign

to raise the age of consent. Phulmani’s case silenced the opposition among

those who had opposed any legislative intervention as a colonial interference

in the private sphere and practices.55 The death of Phulmani also cut through

the lethargy of a colonial bureaucracy which was reluctant to intervene in

54 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 37.

55 Ratna Kapur & Brenda Cossman (1996). Subversive Sites: Feminist Engagements with Law in India. Sage Publications 49-50; Charles H. Heimsath (1964). Indian Nationalism and Hindu Social Reform. Princeton University Press 163-165.

Page 24 of 141 PART IV

matters of religion. 56 The law member of the Viceroy’s Legislative Council,

Andrew Scoble, prominently used Phulmani’s case to advocate for raising the

age of consent by enacting his Bill, namely, the Age of Consent Bill. The Bill

was an amendment to the IPC and raised the age of consent from ten years to

twelve years. The Age of Consent Act was passed in 1891. The marital rape

exception had come to the defence of Hari. Raising the age of consent by two

years meant that any sexual intercourse with a girl under the age of twelve

would be statutory rape regardless of the marital status of the aggressor with

the victim.

B. Regulating the age of marriage

29. In 1921, the League of Nations held a conference on the trafficking of women

and recommended raising the age of consent to twenty-one years for girls. In

1922, Bakshi Sohanlal unsuccessfully tried to raise the age of consent to 14 by

introducing a Bill. Bills that sought to raise the age of consent were introduced

and thrown out regularly for five years thereafter. Among these bills was an Age

of Marriage Bill which was sought to be introduced by Ranglal Jajodia in 1924

in the Legislative Assembly. 57 The Bill prescribed a minimum age before which

no marriage could take place. This was a shift from the approach taken by other

reformers and legislators of not interfering with the age of marriage but to

merely protect girls from forced sex by raising the age of consent in penal laws.

While this Bill was never introduced, a similar Bill was introduced by Haribilas

56 Ishita Pande (2020). Sex, Law, and the Politics of Age Child Marriage in India, 1891–1937. Cambridge University Press 32.

57 Joshi Committee Report, 15; Also see Tahir Mahmood (1980). Marriage Age in India and Abroad – A Comparative Aspect. Journal of Indian Law Institute 22, 41.

Page 25 of 141 PART IV

Sarda in 1927 after another failed attempt to raise the age of consent by Hari

Singh Gour. The ‘Sarda Bill’ was circulated widely to attract opinions. The

Select Committee altered various provisions, and the Government eventually

appointed the Age of Consent Committee under the chairmanship of MV Joshi.

The consideration of the Sarda Bill was postponed till the report of the Joshi

Committee was received. 58

30. The terms of reference of the Joshi Committee did not include the examination

of the age of marriage. However, the committee found it impossible to delink

the question of marriage age with the question of age of consent for

cohabitation. 59 The committee heard over twelve hundred oral witnesses out of

which one hundred and thirty four witnesses strongly opposed any law

regulating the age of marriage. The committee submitted its report dated 20

June 1929. It recommended that the age of consent be raised to fifteen years

under penal statutes as well as the enactment of a law which penalizes

marriage below the age of fourteen years. 60 The committee was of the opinion

that it would be easier to regulate the age of marriage by law than to regulate

the consummation of marriage after it had already taken place. The committee

reasoned that marriage was an act of public knowledge and many persons had

a chance to notice the age of the couple. Its visibility would allow for its

regulation. It was also thought that regulating marriages would avoid the

58 Joshi Committee Report, 8.

59 Ibid, 8.

60 Ibid, 196.

Page 26 of 141 PART IV

irritation that would follow from the strict regulatory interference of

consummation within a marital union.61

31. After much debate, the Sarda Bill was enacted as the Child Marriage Restraint

Act 1929 and received the assent of the Governor-General on 1 October 1929

and was to come into force on 1 April 1930 throughout British India. The Act

applied to all religions. The Act continued to govern the law on the age of

marriage till Parliament enacted the Prohibition of Child Marriage Act 2006.

C. The Child Marriage Restraint Act 1929

32. The law in colonial times had cast a male gaze upon the women and girls of

India. It did so by making women the object of the legislation but never its

spectator. Women and their bodies were made a subject of legislation without

any meaningful attempt to attract the perspectives of women, their experiences

or their desires. The law did not concern itself with issues of autonomy, agency

and individualised dignity of a woman. This had been manifested from the days

of the reform movement on the age of consent laws. As Dr Jaya Sagade argues

in her book Child Marriage in India: Socio-legal and Human Rights Dimensions,

the law on consent was nailed purely to the physical capability of women and

alien from their aspirations or choices. She states that:

“It is unfortunate that all opinions agreed on a definition of consent that was nailed to a purely physical capability, entirely dissociated from free issues like choice of partner, sexual, emotional, or mental compatibility or other social considerations such as the girl’s personal development. Consent was made into a biological category, a stage when

61 Ibid, 174, para 379.

Page 27 of 141 PART IV

the female body was ready to accept sexual penetration without serious harm. The only difference lay in when this stage was reached.” 62

33. The Child Marriage Restraint Act 192963 was a first to cover all children – male

and female – within its gamut. The age of consent laws was enacted through a

clause in the penal rape statutes which only sought to legislate on girls. The

CMRA on the other hand was applicable to both boys and girls.

34. Section 2(a) of the CMRA stipulated that a “child” means a person who, if male,

is below the age of eighteen, and if female, is below the age of fourteen. Section

2(d) defined a “minor” to be any person below the age of eighteen. All marriages

in which either of the parties was a ‘child’ under Section 2(a) was stipulated to

be a “child marriage” under Section 2(b). The CMRA stipulated that child

marriage is an offence punishable with simple imprisonment which may extend

to one month or a fine of one thousand rupees or both. Grooms between the

ages of eighteen and twenty-one were to be punished only with a fine and no

imprisonment could be awarded to them. The CMRA originally did not allow for

the punishment of a ‘child’ for the offence of child marriage. The Act only

penalised child marriages which had already taken place. However, it did not

stipulate any provision for the prevention of child marriage.

35. In 1938, the CMRA was amended to stipulate that a court may issue an

injunction prohibiting a child marriage from taking place. However, before

62 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 41.

63 ‘CMRA’

Page 28 of 141 PART IV

issuing such an injunction, the court was required to give prior notice to the

person sought to be injuncted as well as an opportunity to show cause against

the issuance of the injunction. 64 The CMRA further underwent substantive

amendments in 1949.

36. The amendment increased the age for a girl child to fifteen years and increased

penalties for all categories of offenders. A chart of all the penalties under the

CMRA and its amendments is produced below:

Offender Penalty under the Original CMRA 1949 Amendment Groom between the ages of Fine of upto Rs 1,000/- Simple imprisonment upto 18-21 15 days or/and a fine upto Rs 1,000/- Groom above the age of 21 Simple imprisonment upto 1 Simple imprisonment upto 3 month or/and fine upto Rs months and fine 1,000/- One who knowingly Simple imprisonment upto 1 Simple imprisonment upto 3 performs, conducts or directs month or/and fine upto Rs months and fine child marriage 1,000/- One who, being in charge of Simple imprisonment upto 1 Simple imprisonment upto 3 a minor – promotes, permits month or/and fine upto Rs months and fine or failed to prevent the child 1,000/- marriage One who knowingly violates Imprisonment of either Imprisonment of either an injunction against a child description upto three description upto three marriage months or/and fine upto Rs months or/and fine upto Rs 1,000/- 1,000/-

37. None of these offences were cognizable in nature. The offences under the

CMRA were only made party cognizable through an amendment in 1978.

Accordingly, the offences under the CMRA were to be treated as cognizable for

(i) the purpose of investigation, and (ii) for the purpose of matters other than (a)

64 Section 12, CMRA.

Page 29 of 141 PART IV

Section 42 of CrPC and (b) the arrest of a person without a warrant or without

an order of the Magistrate. By the same amendment, Parliament also raised the

age of marriage to eighteen years for girls and twenty-one years for boys. This

time too, legislative intervention was largely animated by a concern for

population control rather than the autonomy or agency of children. The

Statement of Objects and Reasons expressly stated the intent behind the

amendment. It states as follows:

“Prefatory Note-Statement of Objects and Reasons. The Child Marriage Restraint Act, 1929, was enacted with a view to prevent child marriages, namely, a marriage to which either of the contracting parties is under a specified age. Originally, the age limit for a male was eighteen years and for a female fourteen years. The age limit was subsequently raised in the case of females from fourteen to fifteen by the Amending Act 41 of 1949. Violation of the provisions of the Act is made punishable.

2.⁠ ⁠The question of increasing the minimum age of marriage for males and females has been considered in the present context when there is an urgent need to check the growth of population in the country. Such increase of the minimum age of marriage will result in lowering the total fertility rate on account of letter span of married life. It will also result in more responsible parenthood and in better health of the mother and child. A Bill introduced for this purpose in the Lok Sabha on 25th August, 1976, lapsed with the dissolution of the Lok on 18th January, 1977. The matter has examined in all its aspects again.

3.⁠ ⁠The Bill seeks to amend the Child Marriage Restraint Act, 1929, to increase the minimum age of marriage from fifteen to sixteen for females and from eighteen to twenty-one for males and to make consequential amendments in the Hindu Marriage Act, 1955, and the Indian Christian Marriage Act,

Page 30 of 141 PART V

1872. It is also being provided that offences under the Child Marriage Restraint Act may be investigated upon by a police officer under the Code of Criminal Procedure as if it were a cognizable offence. The police officer shall, however, not have the power to arrest without a warrant or an order of a Magistrate.”

(emphasis supplied)

38. The CMRA did not stipulate that child marriages would be void, voidable or

invalid. It did not affect the validity of child marriages and did not prohibit the

marriage of a girl to an old man. This remained unchanged till Parliament

repealed the CMRA and enacted the Prohibition of Child Marriage Act 2006.

V. Contemporary legal framework

A. The Prohibition of Child Marriage Act 2006

39. The National Commission for Women 65 in its annual report for the year 1995-

1996 proposed to amend the CMRA. It proposed that (i) the government should

appoint Child Marriage Prevention Officers; (ii) punishments under CMRA be

made more stringent; (iii) child marriages be declared void; (iv) a penal

obligation be imposed on anyone attending a child marriage; and (v) all offences

under the CMRA must be made cognizable without any qualification. 66 The

NCW further recommended that systematic efforts to spread awareness about

the evils of child marriage be carried out.67

40. In 2001-2002, the National Human Rights Commission 68 released its annual

report which inter alia reviewed the CMRA. The NHRC proposed certain

65 ‘NCW’ 66 Annual Report 1995-1996, National Commission for Women, 3. 67 Annual Report 1995-1996, National Commission for Women, 3. 68 ‘NHRC’

Page 31 of 141 PART V

amendments to the CMRA to (i) provide for higher penalties for violation of the

CMRA; (ii) stipulate action against organisers or associations who organise

child marriages at a mass scale; (iii) make child marriages voidable at the

instance of the minor party within two years of the party attaining the age of

majority; (iv) provide for the maintenance of a minor girl by her husband or

guardian till she remarries; and (v) stipulate for the return of all dowry and gifts

exchanged during the child marriage. 69 The report also stressed on the need to

initiate social action by networking with NGOs in the areas where child

marriages were prevalent in order to sensitize community leaders against such

marriages.70

41. On the basis of the two reports, the Government of India consulted the States

and the Union Territories. Accordingly, the Parliament decided to repeal the

CMRA and enact the PCMA. The Statement of Objects and Reasons of the

PCMA stated the salient features of the Act as follows:

“4. The salient features of the Bill are as follows:–

(i) To make a provision to declare child marriage as voidable at the option of the contracting party to the marriage, who was a child.

(ii) To provide a provision requiring the husband or, if he is a minor at the material time, his guardian to pay maintenance to the minor girl until her remarriage.

(iii) To make a provision for the custody and maintenance of children born of child marriages

(iv) To provide that notwithstanding a child marriage has been annulled by a decree of

69 Annual Report 2001-2002, National Human Rights Commission, 50-51, 336-348.

70 Annual Report 2001-2002, National Human Rights Commission, 51.

Page 32 of 141 PART V

nullity under the proposed section 3, every child born of such marriage, whether before or after the commencement of the proposed legislation, shall be legitimate for all purposes.

(v) To empower the district court to add to, modify or revoke any order relating to maintenance of the female petitioner and her residence and custody or maintenance of children, etc.

(vi) To make a provision for declaring the child marriage as void in certain circumstances.

(vii) To empower the courts to issue injunctions prohibiting solemnisation of marriages in contravention of the provisions of the proposed legislation.

(viii) To make the offences under the proposed legislation to be cognizable for the purposes of investigation and for other purposes.

(ix) To provide for appointment of Child Marriage Prevention Officers by the State Government.

(x) To empower the State Governments to make rules for effective administration of the legislation.

5. The Bill seeks to achieve the above objectives.”

42. The PCMA retained the age of marriage as twenty-one for males and eighteen

for females. 71 The Act provides for governing parties to a child marriage after

its commission, punitive measures against offenders of the Act as well as

provisions for the prevention of child marriage. We shall analyse the scheme of

the PCMA in three parts. In Part i, we shall analyse the provisions that seek to

protect women married as girls as well as children born in child marriages

(Sections 3 to 8 of the PCMA). Having analysed the remedies of parties upon

the commission of a child marriage, we shall analyse the provisions which

71 Section 2(a), PCMA.

Page 33 of 141 PART V

penalise the commission of child marriages in Part ii. Lastly, in Part iii we shall

analyse the provisions which are aimed at preventing child marriages.

i. Recourse to the wedded: maintenance, residence and custody

43. The PCMA prescribes that a petition under the Act may be filed before a district

court having jurisdiction over the place where (i) the defendant resides; or (ii)

the child resides; or (iii) the marriage was solemnized; or (iv) the parties last

resided together; or (v) the petitioner is residing at the time of filing the petition.

Such a court shall have jurisdiction to deal and decree the following reliefs:

(i) to annul the marriage and issue a decree of nullity under Section 3 of the

PCMA;

(ii) to provide for maintenance and residence to the female contracting party

to a child marriage under Section 4; and

(iii) for the custody and maintenance of children of a child marriage under

Section 5.

44. The PCMA diverges from the CMRA in its approach towards the validity of child

marriages as well as its enforcement. The PCMA prescribes that a child

marriage is voidable at the instance of the contracting party who was a child at

the time of the marriage. 72 Section 3 stipulates that a petition for annulling a

child marriage by a decree of nullity may be filed before the district court. Such

a person must exercise the right to file the petition within two years of attaining

72 Section 3, PCMA.

Page 34 of 141 PART V

the age of majority. 73 In case the party is still a minor, the petition may be filed

by their guardians or next friend along with the CMPO. 74 In addition to entitling

the minor contracting party to a child marriage to a decree of nullity, it also

requires the district court to direct both parties to the marriage to return all

money, valuables, ornaments and other articles exchanged as gifts at the time

of marriage.75 In doing so, the district court must afford an opportunity to the

parties against whom the order of returning gifts is made. 76

45. The PCMA further empowers the district court to provide for the maintenance

and residence of the female contracting party to the child marriage. The court

may pass an interim or final order directing the grant of maintenance to the

female contracting party by the male contracting party.77 Where the male

contracting party is a minor, the court may issue a direction to his parents or

guardians to maintain the female contracting party.78 The court may grant such

a relief till the female contracting party remarries. 79 In computing the amount of

maintenance, the court shall have regard to the needs of the child, the lifestyle

enjoyed by the child during marriage and the means of income of the paying

party. 80 Clause (4) of Section 4 empowers the district court to make a suitable

order for the residence of the female contracting party to a child marriage who

files an annulment petition.

73 Section 3(3), PCMA.

74 Section 3(2), PCMA.

75 Section 3(4), PCMA.

76 Section 3(4), PCMA.

77 Section 4(1), PCMA.

78 Section 4(1), PCMA.

79 Section 4(1), PCMA.

80 Section 4(2), PCMA.

Page 35 of 141 PART V

46. Section 5 of the PCMA provides for the custody and maintenance of children of

child marriages. The PCMA is oriented on the universal principal of child law,

which is that the welfare and beneficial interest of the child has to be paramount.

The provision governs the custody of the child, the visitation rights of parents

as well as the maintenance of a child born from a child marriage. The district

court is empowered to make an order as to the custody of a child born from a

child marriage81 keeping in mind the welfare and best interest of the child.82 The

court may also pass an order granting the other party access to the child in a

manner that serves its best interest. 83 The child or its parents or guardians may

also be awarded maintenance by the court.84 Therefore, the PCMA has sought

to ensure the upkeep and protection of women and children in families which

emerge from a child marriage.

47. One of the critiques against rendering child marriages void is that women and

children would lose the protective shield of the law, which accrues to them

under a valid marriage. The PCMA has repelled this criticism by specifically

providing for the maintenance of women and children in a child marriage

notwithstanding a decree of nullity being granted under Section 3 of the Act.

The Act further protects a child born from a child marriage by declaring that

such a child, begotten or conceived of a child marriage, shall be deemed

legitimate for all purposes under the law. 85

81 Section 5(1), PCMA.

82 Section 5(2), PCMA.

83 Section 5(3), PCMA.

84 Section 5(4), PCMA.

85 Section 6, PCMA.

Page 36 of 141 PART V

48. The maintenance of women and children has been a feature of our family laws.

It recognises the inherent maldistribution of economic resources and life

opportunities between men and women. It further recognises the innocence of

the children who end up in broken families due to no fault of theirs. The status

of these universally recognised vulnerable persons is further made tragic in a

child marriage because all child marriages are forced marriages. Children are

made to enter into matrimony before arriving at the age of intelligent consent

and are often unaware of the responsibilities, duties and rights which accrue to

members of the marital union in the eyes of the law as well as society. When

the party to a child marriage ends up in a situation which is not of their making,

the vulnerability of the child born from such marriage is heightened.

49. In Union of India v. VR Tripathi86, a two-Judge Bench of this Court speaking

through one of us (DY Chandrachud, J) has opined that the legitimacy of a child

is a matter of the dignity of the child. When the law recognises a child as

legitimate, it aims to shield the child from the legal fallout of illegitimacy as well

as the social stigma attached to illegitimate children. It is impermissible to treat

children of void marriages, who are statutorily legitimate, as illegitimate. Section

6 of the PCMA therefore serves to afford dignity to children born to parents who

had entered into a child marriage. A decree of nullity of marriage passed under

Section 3 shall not affect the legitimacy of the child born from such a marriage.

50. Section 7 of the PCMA allows the district court to add to, modify or revoke any

order which it passes on the maintenance, residency of the woman or the

86 (2019) 14 SCC 646.

Page 37 of 141 PART V

custody and maintenance of the child born from a child marriage based on

change in circumstances. Such a change in the order of the court may be made

at any time, either during the pendency of the petition or after it has been

disposed of.

51. These provisions seek to safeguard the interest of the vulnerable stakeholders

involved in a child marriage, namely, a child bride and any child born from a

child marriage. Parliament, having safeguarded these rights has further

stipulated punishments for violation of the PCMA and solemnization of child

marriages.

ii. Penalties for child marriage

52. The PCMA prescribes punishment for three classes of persons, namely, (i) an

adult groom in a child marriage, 87 (ii) persons involved in the solemnization of

child marriage 88 and (iii) persons who promote or permit the solemnization of

child marriage.89 The maximum punishment prescribed for all three classes is

rigorous imprisonment of two years and a fine of rupees one lakh. Unlike many

social legislations, the PCMA does not prescribe a mandatory minimum

punishment for committing an offence under the Act. The effect of this is that a

judge would be at liberty to nominally punish the accused who are convicted

under the Act. The non-prescription of a minimum mandatory sentence has led

to ineffective enforcement of the PCMA.

87 Section 9, PCMA.

88 Section 10, PCMA.

89 Section 11, PCMA.

Page 38 of 141 PART V

53. Section 15 of the PCMA stipulates that all offences under the Act are cognizable

and non-bailable. This is a deviation from CMRA which initially did not make the

offence of child marriage cognizable. The effect of this was to make the

prevention of child marriage entirely contingent on the private initiative of

citizens to file a complaint before the magistrate and be examined under oath.

The CMRA also initially required a security bond to be executed by the

complainant to sustain their bona fides. This requirement made the

enforcement of the Act illusory. The requirement of executing a mandatory

security bond was eliminated by the Child Marriage Restraint (Second

Amendment) Act 1938. The offences under the CMRA were further made

partially cognizable through an amendment in 1978. Section 15 of PCMA is

therefore a welcome step which aims to better enforce the Act.

54. Section 9 of the PCMA prescribes that a man above the age of eighteen, who

enters into a marriage with a minor girl is liable to be punished with rigorous

imprisonment which may extend to two years or with a fine which may extend

to one lakh rupees or both. The court is accordingly empowered to penalise an

accused under Section 9 with imprisonment or a fine or both. The court is at

liberty to exercise its options of imposing punishment based on the gravity of

the offence, the circumstance of the marriage and the socio-economic power of

the male over his child bride. In many instances, the marriage between a child

bride and aged groom occurs at the instance of the groom incentivising the

family of the girl to marry her off. The provision deals with such situations but

also recognises the relative lack of involvement of a man who may be a young

adult and enters into matrimony with a minor. The option of imprisonment and

Page 39 of 141 PART V

fine is a deviation from the other two penal provisions in the PCMA which

mandate both, a fine and imprisonment, to be imposed on guilty convicts. The

rationale of this option is to allow the judge a degree of latitude in assessing the

culpability of the groom under Section 9 and impose a proportionate criminal

sentence.

55. Despite the age of majority for a man to enter into a marriage being prescribed

as twenty-one under Section 2(a) of the Act, his criminal liability for entering into

a child marriage with a minor woman begins at eighteen. Therefore, two

positions of law emerge from Section 9. First, a woman, regardless of her age

is not liable for entering into a child marriage. Second, a man above the age of

eighteen but under the age of twenty one is liable for marrying a girl who is

under the age of eighteen. The legislative intent behind making a groom liable

for entering child marriage is to recognise the relative control of the agency that

a groom may have in relation to his marriage as opposed to a girl.

56. In Hardev Singh v. Harpreet Kaur 90 the appellant was under the age of twenty-

one and had married a woman who was twenty-three years old. The High Court

of Punjab and Haryana directed an FIR to be registered under Section 9 of the

PCMA against the wife for entering into a marriage with a man who was a minor

under the PCMA. A two-Judge bench of this Court set aside the judgment of

the High Court and held that the PCMA does not prescribe any punishment for

an adult woman who marries a male child. This Court held that the Act

recognises women as a vulnerable class and seeks to punish adult men who

90 (2020) 19 SCC 504.

Page 40 of 141 PART V

marry child brides. The Court further rejected the literal interpretation of Section

9 which would make a man between the ages of eighteen and twenty one who

marries an adult woman liable for child marriage. Therefore, no child as defined

in Section 2(a) of the PCMA is liable under Section 9 for marrying an adult

person.

57. Section 10 of PCMA stipulates that a person who performs, conducts, directs

or abets any child marriage shall be punished with rigorous imprisonment which

may extend to two years and shall be liable to a fine which may extend to one

lakh rupees. The provision, unlike Section 9, does not allow the court to choose

the option of imposing a fine or sentencing a term of imprisonment or both. A

court adjudicating under Section 10 is mandated to impose a sentence of

imprisonment as well as impose a fine.

58. The provision is expansive and would govern any accomplice to the

commission of child marriage. This would include the priest who performs the

marriage, any family member, relative or person at whose direction the

marriage takes place or anyone who abets it. The provision stipulates a defence

available to any accused under Section 10 which is that a person must

demonstrate that he had reasonable belief that the marriage was not a child

marriage. The inbuilt defence stipulated in the provision is to safeguard any

person who may unwittingly become a part of the commission of the offence of

child marriage.

Page 41 of 141 PART V

59. Section 11 of the PCMA is a catchall provision against the promotion or

permitting of child marriage by those in charge of a minor party to the marriage.

The provision reads as follows:

“11. Punishment for promoting or permitting solemnisation of child marriages.—

(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees: Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.”

60. Section 11 stipulates that any person having charge of the child – who promotes

or permits a child marriage or fails to prevent it – is liable to rigorous

imprisonment which may extend to two years and a fine which may extend to

one lakh rupees. Similar to the provision under Section 10 of the PCMA, Section

11 also prescribes a mandate to the sentencing court to impose a sentence of

imprisonment as well as a fine. The provision uses the word ‘and’ between the

two punishments and the judge does not have the liberty to pick a certain

punishment to the exclusion of the other. The person liable under Section 11

may be the parents of the child or a guardian or any other person or

Page 42 of 141 PART V

organisation. Further, the means by which a person may have the charge of the

child is immaterial as the provision stipulates that the charge may be ‘lawful or

unlawful’. The section seeks to penalise any person or organisation involved in

a child marriage. Its expansive scope allows for the prosecution of any person

who may have unlawfully taken the custody of a child and thereafter promoted,

permitted or failed to prevent the child marriage. Section 11 also deals with

organisations, such as orphanages or schools or hostels, which may have the

charge of a child and under whose watch the child is married off.

61. The intention of the provision is to place an obligation on any person who has

the charge of a child to ensure that the offence of child marriage is not

committed. The provision not only penalises the active participation of the

person having charge of a child but also penalises the omission on the part of

such a person to prevent child marriage. The provision recognises that children

lack the ability to form intelligent consent and may not necessarily know the full

ambit of the activity which they are about to commit. Further, children may lack

the ability and grit to defend themselves and refuse to participate in the

marriage against the pleasure of their custodians or parents.

62. Clause (2) of Section 11 raises a presumption. It stipulates that any person,

who is in charge of a child who was married off, is presumed to have negligently

failed to prevent the child marriage. The presumption is a rebuttable one and

may be defended if the person proves that he could not have prevented the

marriage or failed at preventing it, having tried to do so to the best of their ability.

This principle is only applicable to an offence under Section 11.

Page 43 of 141 PART V

63. Having stipulated penal provisions for the commission of child marriage in

Sections 9, 10 and 11, the PCMA further stipulates that any child marriage

which occurs as a result of another criminal act is void ab initio. 91 Section 12

stipulates three instances in which the marriage of a child is null and void. These

instances are where a minor child –

(i) is taken or enticed out of the keeping of the lawful guardian; 92 or

(ii) compelled by force or by any deceitful means induced to go from any

place; 93 or

(iii) is sold for the purpose of marriage; and made to go through a form of

marriage or if the minor is married after which the minor is sold or trafficked

or used for immoral purposes. 94

64. Section 12 provides that the marriage in these instances is non est in law and

has no legal standing from its inception. The declaration of the provision is

mandatory and removes the option from the hands of the party to consent to

the marriage after its commission. Therefore, all marriages done by taking or

enticing a child, compelling by force or deceit or selling are void. Section 12(c)

further stipulates that where a child marriage occurs and after the marriage, the

minor is sold or trafficked or used for immoral purposes is void. Therefore, even

when the commission of marriage was not through force or deceit the marriage

91 Section 12, PCMA.

92 Section 12(a), PCMA.

93 Section 12(b), PCMA.

94 Section 12(c), PCMA.

Page 44 of 141 PART V

would be void from the inception based on the acts performed after the marriage

takes place.

iii. Preventive measures under the PCMA

65. The PCMA seeks to eliminate child marriages by deterrence and prevention.

The Act designed the preventive measures in two ways, i.e., (i) by an injunction

against the commission of child marriage, and (ii) by the appointment of

CMPOs. We shall analyse the scheme of the PCMA in regard to both of these

aspects below.

Injunctions against child marriage

66. Sections 13 and 14 of the PCMA deal with injunctions against child marriage.

Section 13 reads as follows:

“13. Power of court to issue injunction prohibiting child marriages.—

(1) Notwithstanding anything to the contrary

contained in this Act, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage.

(2) A complaint under sub-section (1) may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.

Page 45 of 141 PART V

(3) The Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suo motu cognizance on the basis of any reliable report or information.

(4) For the purposes of preventing solemnisation of mass child marriages on certain days such as Akshaya Trutiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act.

(5) The District Magistrate shall also have additional powers to stop or prevent solemnisation of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.

(6) No injunction under sub-section (1) shall be issued against any person or member of any organisation or association of persons unless the Court has previously given notice to such person, members of the organisation or association of persons, as the case may be, and has offered him or them an opportunity to show cause against the issue of the injunction:

Provided that in the case of any urgency, the Court shall have the power to issue an interim injunction without giving any notice under this section.

(7) An injunction issued under sub-section (1) may be confirmed or vacated after giving notice and hearing the party against whom the injunction was issued.

(8) The Court may either on its own motion or on the application of any person aggrieved, rescind or alter an injunction issued under sub-section (1).

(9) Where an application is received under sub-

section (1), the Court shall afford the applicant an early opportunity of appearing before it either in person or by an advocate and if the Court, after hearing the applicant rejects the application wholly or in part, it shall record in writing its reasons for so doing.

(10) Whoever knowing that an injunction has been issued under sub-section (1) against him disobeys such injunction shall be punishable with

Page 46 of 141 PART V

imprisonment of either description for a term which may extend to two years or with fine which may extend to one lakh rupees or with both:

Provided that no woman shall be punishable with imprisonment.”

67. A Judicial Magistrate of the first class or a Metropolitan Magistrate, as the case

may be, is empowered to issue an injunction order if they are satisfied that a

child marriage has been arranged or is about to be solemnised. 95 The judge

may issue such an order based on information that may be received as a

complaint or otherwise. The person who complains to the judge must have

personal knowledge or reason to believe that a child marriage is likely to

occur. 96 In case the complainant is a non-governmental organisation, they must

have reasonable information, relating to the likelihood of the taking place of or

solemnisation of a child marriage or child marriages. The injunction order may

be issued against any person or association of persons. 97 However, the court

must issue notice to such person, members of the organisation or association

of persons, as the case may be, and offer them an opportunity to show cause

against the issuance of an injunction. 98 The court may eschew from this

requirement only if it is expedient or urgent for the court to act, in which case

an interim injunction may be issued.

68. A Judicial Magistrate of the first class or a Metropolitan Magistrate, as the case

may be, is also empowered to take suo moto cognizance of the commission of

a child marriage based on a reliable report or information.99 The PCMA also

95 Section 13(1), PCMA.

96 Section 13(2), PCMA.

97 Section 13(1), PCMA.

98 Section 13(6), PCMA.

99 Section 13(3), PCMA.

Page 47 of 141 PART V

gives the judge associated powers in addition to the power to issue an

injunction. These include the power to (i) confirm or vacate the injunction; 100 (ii)

rescind or alter an injunction; 101 and (iii) reject the application for injunction

wholly or in part by a speaking order. 102 The punishment for disobeying an

injunction issued under Section 13 of the PCMA is imprisonment which may

extend to two years or a fine which may extend to one lakh rupees or both.103

However, no woman can be sentenced to imprisonment for violating an

injunction order under Section 13. Any marriage solemnized in violation of an

injunction order passed under the PCMA is void ab initio as per Section 14 of

the PCMA.

69. In addition to the power of the Judicial Magistrate of the first class or a

Metropolitan Magistrate to issue injunctions, Section 13 also stipulates the role

of the District Magistrate in the prevention of child marriages. Clause (4) of

Section 13 stipulates that a District Magistrate is deemed to be a CPMO on

certain days to prevent the solemnization of child marriages. The District

Magistrate may exercise all the powers which accrue to the CMPO under the

PCMA. 104 The intent of empowering the District Magistrate is in recognition of

the fact that child marriages may take place in higher numbers on certain days.

Since many communities in India believe that marriages may be beneficial if

conducted on auspicious days, the authorities may preventively earmark these

days for the application of Clauses (4) and (5) of Section 13 of the PCMA.

100 Section 13(7), PCMA.

101 Section 13(8), PCMA.

102 Section 13(9), PCMA.

103 Section 13(10), PCMA.

104 Section 13(4), PCMA.

Page 48 of 141 PART V

Clause (5) of the PCMA stipulates that the District Magistrate shall have

additional powers to stop or prevent the solemnisation of child marriages, for

which he may take appropriate measures and use the minimum force required.

Child Marriage Prohibition Officers

70. In addition to injunctions, the PCMA also prescribes the appointment of CMPOs

for the prevention of child marriage. One of the primary critiques of the CMRA

was that the law was dependent on the private initiative of public-spirited

citizens to avoid child marriages. The offences under the CMRA were only

partially cognizable and its enforcement was met with severe social penalty and

the wrath of the two families whose wards were made to tie the knot. The PCMA

sought to better enforce its provisions by stipulating the appointment of a

CMPO. Section 2(d) of PCMA defines a CMPO as an officer appointed by the

State Government under Section 16(1) of PCMA. Section 16 empowers the

State Government to issue a notification in the official gazette appointing a

CMPO for the specified jurisdiction. Under Clause (2) of Section 16 of PCMA,

the State may also request a respectable member of the locality with a record

in social service or an officer of the Gram Panchayat or Municipality or an officer

of the Government or any public sector undertaking or a non-governmental

organisation to render assistance to the CMPO. The CMPO is mandated to

carry out the duties stipulated in Clause (3) of Section 16 of PCMA. These

duties are as follows:

(i) to prevent solemnisation of child marriages by taking such action as he

may deem fit;

Page 49 of 141 PART V

(ii) to collect evidence for the effective prosecution of persons contravening

the provisions of the Act;

(iii) to advise either individual cases or counsel the residents of the locality

generally not to indulge in promoting, helping, aiding or allowing the

solemnisation of child marriages;

(iv) to create awareness of the evil which results from child marriages;

(v) to sensitise the community on the issue of child marriages;

(vi) to furnish such periodical returns and statistics as the State Government

may direct; and

(vii) to discharge such other functions and duties as may be assigned to

him by the State Government.

71. The CMPO may move the court for an order of (i) maintenance and residence

of the child bride under Section 4; (ii) custody of a child born from a child

marriage under Section 5; and (iii) injunction against the solemnization of

marriage or against the violation of an injunction under Section 13. 105

Additionally, the CMPO may move the court along with a child who has been

married off for a decree of nullity under Section 3 of PCMA. 106

72. The legislative intent behind the appointment of the CMPOs is to designate an

officer to take tailored action against child marriage in each district. The

105 Section 16(5), PCMA.

106 Section 16(5), PCMA.

Page 50 of 141 PART V

prevention of child marriage ensures that communities can progress whereas

the prosecutorial functions of the CMPO ensure effective deterrence.

73. The Petitioner has submitted that the practice widely prevalent is to appoint an

officer with multifarious duties as the CMPO. The task of the CMPO is doled out

as an additional task to officers who are already burdened with their primary

duties. This leads to ineffectiveness and allows many child marriages to slip

through the cracks.

74. The data provided by the Union in its additional affidavit sheds light on the

prevalence of officers holding additional charges as CMPOs at the district level.

In states like Haryana and Chhattisgarh, officials such as Sub-Divisional

Magistrates 107 and District Social Welfare Officers are appointed as CMPOs but

may also hold other responsibilities.

75. As argued by the Petitioner, the appointment of CMPOs who are inundated with

other multifarious duties impedes the effectiveness of child marriage prevention

measures. Officers with multiple duties might struggle to dedicate sufficient time

and resources to their role as CMPOs, potentially hindering the effectiveness

of child marriage prevention efforts. The appointment of CMPOs is not a mere

statutory formality as part of an ornate virtue signalling. These officers are in

charge of prosecution of child marriages, counselling of stakeholders and

spreading awareness and sensitization in the community. An effective CMPO

must make efforts to find their roots in the community, engage with communities

and organisations in the area and carry out the painstaking, and sometimes

107 ‘SDM’

Page 51 of 141 PART V

thankless, task of reporting specific factors affecting child marriages in the

district. We observe that the need for dedicated personnel with a focused

mandate to tackle child marriage is crucial to ensure that resources are utilized

effectively and that the objectives of the PCMA are met.

76. Additionally, the level at which CMPOs are designated—whether at the district,

Block, or Gram Panchayat level—is also a critical concern. For instance, states

like Karnataka have appointed 58,522 officers across thirty one districts, and

Maharashtra has appointed 25,562 officers across thirty six districts, extending

appointments down to the Gram Panchayat level. Andhra Pradesh has

appointed 16,590 officers from the village or ward level up to the district level,

including District Magistrates at the district level. However, Uttar Pradesh has

designated only one CMPO per district, with 75 CMPOs for seventy-five

districts. Although high numbers of appointments may suggest extensive

coverage, this alone does not ensure effectiveness unless there are exclusive

officers dedicated solely to CMPO duties, free from additional responsibilities.

For example, at the Gram Panchayat level, Panchayat Secretaries, Village

Revenue Officers, and Patwaris are often given CMPO duties in addition to their

primary roles, which dilutes their ability to focus solely on child marriage

prevention.

77. CMPOs often lack adequate training and are ill-equipped to engage sensitively

with children. A study analysing child marriage cases filed nationwide between

2008 and 2017 revealed that CMPOs initiated only seven percent of these

Page 52 of 141 PART V

cases, highlighting a significant gap in proactive enforcement.108 In some

instances, CMPOs redirect complaints to other designated officers under

different laws, such as protection officers under the Domestic Violence Act

2005 109 or the JJ Act 110, who then refer the complaints back to the CMPOs.

This back-and-forth highlights a need for improved clarity and streamlined

coordination in handling child marriage cases effectively.

78. We accordingly hold that, given the significant obligations expected to be

discharged by a dedicated CMPO, no officer with other responsibilities shall be

appointed as the CMPO. States or UTs shall appoint exclusive CMPOs in each

district in addition to any CMPOs already serving in a dual capacity, and they

shall equip these officers with adequate resources for the effective discharge of

their functions. If a State or UT concludes that instances of child marriage have

decreased to the extent that appointing exclusive CMPOs is no longer

necessary, it may file an application before this Court, seeking leave to appoint

a CMPO who also holds other duties at the District level.

B. The Protection of Children from Sexual Offences Act 2012

79. The Protection of Children from Sexual Offences Act 2012 111 was enacted by

Parliament to safeguard the right of all children to safety, security and protection

from sexual abuse and exploitation. It is a self-contained comprehensive

legislation for the protection of children from sexual assault, sexual harassment

108 Social and Policy Research Foundation. ‘Child and Early Marriage in India, Issue Brief’ (2021) referred in India Child Protection, Towards Justice: Ending Child Marriages (2024), 21. 109 The Domestic Violence Act, 2005.

110 The Juvenile Justice (Care and Protection of Children) Act, 2015. 111 ‘POCSO Act’

Page 53 of 141 PART V

and pornography.112 The POCSO Act operates in a manner which promotes the

best interest and well-being of a child and ensures their healthy physical,

emotional, intellectual and social development. 113

80. The POCSO Act applies to all children regardless of their gender. Section 2(d)

defines a child as being under the age of eighteen. The Act elevates the age of

consent to eighteen years for all persons. The 2013 amendment to the IPC

increased the age of consent under the rape provision from sixteen to eighteen.

However, the marital rape exception to the rape provision in Section 375 IPC

continued to protect men for having sex with their minor wives. In Independent

Thought (supra) this court removed the inconsistency and struck down the

exception to the penal provision on rape under Section 375 IPC in so far as it

related to minors. Further, Subclause (vi) of clause (d) of Section 63 of

Bharatiya Nyaya Sanhita 2023 114 prescribes the age of consent to be eighteen

years. Section 63 BNS is pari materia to Section 375 IPC.

81. The principles of the POCSO Act are directly threatened by the commission of

child marriage. The intent of the POCSO Act is to protect children from sexual

advances. Child marriage on the other hand is an institution which puts minor

girls directly in harm’s way. Under the POCSO Act, a man is liable to

punishment for having sex with his minor wife. Nevertheless, the existence of

child marriage and its continued recognition in the law as a valid (and voidable)

marriage threatens the dignity of children. The institution of child marriage, more

112 Statement of Objects and Reasons, POCSO.

113 Ibid.

114 ‘BNS’

Page 54 of 141 PART V

directly than any other institution, stipulates for the sexual abuse of child brides

by design.

C. The Juvenile Justice (Care and Protection of Children) Act 2015

82. The Juvenile Justice (Care and Protection of Children) Act 115 was first enacted

in 2000 to provide for the protection of children. The legislation underwent

amendments in 2006 and 2011. Thereafter, based on the recorded

inadequacies of the legislation, Parliament enacted a new JJ Act in 2015. The

JJ Act was enacted in furtherance of Article 15 and Articles 39(e) and (f),116

45 117 and 47118 of the Constitution to ensure the proper care, protection,

development, treatment and social re-integration of children in difficult

circumstances. The JJ Act applied a child-friendly approach and is premised on

the principle of the best interest of the child.

83. The JJ Act inter alia deals with children in need of care and protection. 119

Section 2(14) defines CNCP. Sub-clause (xii) of Section 2(14) of the JJ Act

115 ‘JJ Act’ 116 “39. Certain principles of policy to be followed by the State.— The State shall, in particular, direct its policy towards securing— …

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.” 117 “45. Provision for early childhood care and education to children below the age of six years.— The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.” 118 “47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.— The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” 119 ‘CNCP’

Page 55 of 141 PART V

prescribes that children at imminent risk of marriage are CNCP. The provision

reads as follows:

“2. Definitions.–In this Act, unless the context otherwise requires,– … (14) “child in need of care and protection” means a child– …

(xii) who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardians and any other persons are likely to be responsible for solemnisation of such marriage;”

84. The Act provides a comprehensive framework to deal with CNCP. Section 27 120

of the JJ Act establishes the Child Welfare Committee 121 to inter alia handle

and resolve complaints in relation to children who are in need of care. The

CWC's role is to ensure the children's basic needs are met and that they are

protected, treated, developed, and rehabilitated.

85. Therefore, children who are married off are required to be produced before the

CWC so that they may be rehabilitated and taken care of. The JJ Act further

120 “27. Child Welfare Committee.– (1) The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification.

(2) The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom at least one shall be a woman and another, an expert on the matters concerning children.

(3) The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning. … (8) The Committee shall submit a report to the District Magistrate in such form as may be prescribed and the District Magistrate shall conduct a quarterly review of the functioning of the Committee.

(9) The Committee shall function as a Bench and shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.

(10) The District Magistrate shall be the grievance redressal authority to entertain any grievance arising out of the functioning of the Committee and the affected child or anyone connected with the child, as the case may be, may file a complaint before the District Magistrate who shall take cognizance of the action of the Committee and, after giving the parties an opportunity of being heard, pass appropriate order.” 121 ‘CWC’

Page 56 of 141 PART V

provides for the constitution of the State Child Protection Society and District

Child Protection Unit. Section 106 of the JJ Act stipulates that the State shall

constitute a State Child Protection Society and a Child Protection Unit in each

district. The mandate of the Society and Unit may be prescribed by the State.

The constitution of these societies and units is to take up matters related to

children for the implementation of the Act including inter alia notification of

competent authorities in relation to the children and their rehabilitation and co-

ordination with various official and non-official agencies concerned. The society

and units therefore have the responsibility to identify needs and engage with

stakeholders, official and non-official, for the implementation of the JJ Act. As

a beneficial social legislation aimed at children, the society and units constituted

under the JJ Act are required to proactively identify remedies and strategies for

the rehabilitation and protection of victims of child marriages.

86. Section 107 of the JJ Act further provides for the Child Welfare Police Officers122

and Special Juvenile Police Units 123. It stipulates that at each police station, at

least one police officer shall be appointed as the CWPO. The officer so

designated shall not be below the rank of Assistant Sub-inspector. The

appointment of CWPOs is required to be done bearing in mind the aptitude,

appropriate training and orientation of the inspector. The officer so appointed is

in charge of exclusively dealing with children, either as victims or perpetrators,

and coordinate with the police and voluntary and non-governmental

organisations.

122 ‘CWPO’ 123 ‘SJPU’

Page 57 of 141 PART V

87. In each district, the State governments are mandated to constitute a SJPU for

effective coordination of all police-related functions related to children. The

SJPU shall be headed by an officer of the rank of Deputy Superintendent of

Police or superior. The SJPU shall comprise all the CWPOs appointed in each

police station throughout the district as well as two social workers who have

worked on issues relating to child rights. At least one of such social workers

who is made part of the unit shall be a woman.

88. The JJ Act recognises the inapplicability of standards which accrue to adults. It

is intended to safeguard children and deal with those among them who are in

conflict with the law. In the context of child marriage, the principles enunciated

in the JJ Act as well as the framework established under it are vitally important.

Children who are at risk of marriage at the hands of their family or relatives are

expressly recognised as CNCP under the Act. The JJ Act further prescribes for

their protection, rehabilitation and development. While victims of child marriage

are protected under the JJ Act, it further strengthens the effort to eliminate child

marriages by creating a trained and skilled force of police officers to deal with

children. The SJPUs are marked by their unique ability to inject humanity in law

enforcement. The task of law enforcement officers, the police in particular, has

traditionally been associated by the State’s ability to compel compliance to its

norms. The formation of SJPUs reflects a refreshing outlook toward police work,

one which is imperative in liberal democracies’ treatment of vulnerable groups.

Law with a touch of humanity and law enforcement with a boost of sensitivity

and empathy are the cornerstone of the law on children. The JJ Act therefore

Page 58 of 141 PART V

forms an important instrument in the contemporary legal framework concerning

child marriages in India.

D. The Commissions for Protection of Child Rights Act 2005

89. The UN General Assembly adopted the Declaration on Survival, Protection and

Development of Children in 1990. In 1989 the UN adopted the Convention on

the Rights of the Child 124 which India ratified on 11 December 1992. To

implement India’s obligations under these international instruments, Parliament

enacted the Commissions for Protection of Child Rights Act 2005. 125

90. The CPCRA seeks to assure child rights in two ways. Firstly, it establishes

National and State Commissions for the protection of Child Rights. 126 These

bodies study, review, and oversee the implementation of child rights law in

India. Secondly, the CPCRA establishes Children’s Courts for providing speedy

trial of offences against children or for violation of child rights.127 Clause (b) of

Section 2 of CPCRA defines child rights to include the rights stipulated in CRC.

91. The NCPCR under Section 13 and the State Commissions for the Protection of

Child Rights under Section 24 of CPCRA are inter alia entrusted with performing

the function of:

124

‘CRC’ 125 ‘CPCRA’ 126 Sections 3 and 17, CPCRA.

127 Section 25, CPCRA.

Page 59 of 141 PART V

(i) examining and reviewing the safeguards provided by any law for the

protection of child rights and recommending measures for their effective

implementation;

(ii) inquiring into violation of child rights and recommend initiation of

proceedings in such cases; and

(iii) inquiring into complaints and taking suo motu notice of matters relating to,-

(a) deprivation and violation of child rights; (b) non-implementation of laws

providing for protection and development of children; (c) non-compliance

of policy decisions, guidelines or instructions aimed at mitigating hardships

to and ensuring welfare of the children and to provide relief to such

children, or take up the issues arising out of such matters with appropriate

authorities.

92. The NCPCR and SCPCR serve the roles of review, monitoring and oversight of

the legal framework on child rights in India. While the CPCRA enables the two

commissions to effectively discharge their functions with appropriate resources,

the effective implementation of the law is contingent on pro-active initiatives of

the NCPCR and SCPCRs and the timely appointment of members to the two

commissions. The effective implementation of the PCMA also falls within the

subject matter of the NCPCR and SCPCRs. Over time, the commissions have

collected data and reviewed the progress of the implementation of the PCMA.

The operative directions and guidelines that we shall issue in this judgment shall

also stipulate the further and specific role that we envision for the NCPCR and

SCPCRs to perform in the prevention and elimination of child marriages.

Page 60 of 141 PART V

93. The MWCD and the NCPCR have been actively engaged in raising awareness

about the negative consequences of child marriage and strengthening the

enforcement of the PCMA. In recent years, the NCPCR has conducted multiple

review meetings and collaborated with a broad spectrum of stakeholders,

including District Magistrates, CMPOs, CDPOs, CWCs, and Anganwadi

Workers. 128 These initiatives have aimed to create a coordinated approach to

tackling child marriage at the grassroots level.

94. The NCPCR has also concentrated on identifying children at risk by compiling

school-wise data on those who have dropped out or exhibit irregular

attendance. In 2023-2024, the NCPCR identified 645,673 children across India

who were either out of school or at risk of early marriage. The Commission

directed district authorities to pinpoint vulnerable children from this list, prevent

their marriages, and ensure proper rehabilitation for those affected. While these

awareness campaigns and data-driven interventions have been vital, it is

evident that awareness alone is not enough to prevent child marriages

effectively. Enforcement of laws, community engagement, and support systems

for vulnerable children are equally crucial.

E. The Legal Services Authorities Act 1987

95. The Legal Services Authorities Act 1987 was enacted to constitute legal

services authorities at the National, State and District levels to provide free and

competent legal services to the weaker sections of the society. The constitution

128 ‘AWWs’

Page 61 of 141 PART V

of the authorities is aimed at ensuring that opportunities for securing justice are

not denied to any citizen by reason of economic or other disabilities.

96. Section 12(c) of the Act stipulates that any child who has to file or defend a case

is entitled to legal services. 129 The Legal Services Authorities are therefore

under an obligation under the Act to assist minors who file cases under the

PCMA to exercise their statutory rights. The National Legal Services

Authority, 130 State Legal Services Authority, 131 District Legal Services

Authorities, 132 Taluk Legal Services Committees, High Court Legal Services

Committees, and Supreme Court Legal Services Committee have formulated

various schemes to be followed while they deal with legal services to

children. 133 We shall make further directions in this regard to legal services

authorities in the operative portion of this judgment.

F. Policies formulated by the Union Government

97. In addition to the legislative apparatus outlined above, the Union has submitted

that the MWCD proposed a National Strategy on Child Marriage on 14 February

2013. This strategy emphasized linking with Integrated Child Protection

Scheme 134 structures and statutory bodies to ensure early detection and swift

referral of cases needing care and protection. One of its strategic directions was

129 Section 12(c), The Legal Services Authorities Act 1987, 130 ‘NALSA’ 131 ‘SLSA’ 132 ‘DLSA’ 133 See for example National Legal Services Authority (Child Friendly Legal Services to Children and their Protection) Scheme, 2024.

134 ‘ICPS’

Page 62 of 141 PART V

to ensure that children already in child marriages should not face discrimination

in accessing health, nutrition, education, and employment services.

98. The Union Government has also implemented several schemes aimed at

empowering young girls and women, such as Sukanya Samridhi Yojana,

Pradhan Mantri Awas Yojana (Urban & Rural), Pradhan Mantri Jan Dhan

Yojana, and Pradhan Mantri Matru Vandana Yojana (PMMVY). These

initiatives aim to promote social well-being and to create a supportive

environment for young girls. Complementing these efforts are programs like

Samagra Shiksha, the National Overseas Scholarship Scheme, Babu Jagjivan

Ram Chhatrawas Yojana, and the Swachh Vidyalaya Mission, which focus on

making schools girl-friendly, particularly for vulnerable sections of society. The

Rajiv Gandhi Scheme for Empowerment of Adolescent Girls – SABLA,

launched on November 19, 2010 135, in 200 districts, focuses on empowering

adolescent girls (aged 11-18) by improving nutrition, health, and vocational

skills. SABLA provides nutrition at Rs 5 per day for 300 days, iron and folic acid

supplementation, health check-ups, nutrition and health education, family

welfare guidance, and vocational training for girls aged sixteen and above under

the National Skill Development Programme. It also raises awareness about the

importance of marrying at the appropriate age.

99. To enhance the employability of female workers, the Ministry offers training

through a network of Women’s Industrial Training Institutes, National Vocational

Training Institutes, and Regional Vocational Training Institutes. Additionally, the

135 See Rajiv Gandhi Scheme for Empowerment of Adolescent Girls: Sabla, https://www.india.gov.in/rajiv- gandhi-scheme-empowerment-adolescent-girls-sabla.

Page 63 of 141 PART V

Skill India Mission aims to ensure economic independence for women through

skill development.

100. The Ministry implements the Beti Bachao Beti Padhao scheme 136, which

specifically aims to address issues of gender inequality by promoting the

education and welfare of girls. It targets high-risk districts with low child sex

ratios and focuses on changing societal attitudes toward girls through

awareness campaigns, community engagement, and promoting girl-friendly

educational infrastructure. Additionally, the Union has established CHILDLINE,

a 24/7 emergency outreach service for children in crisis, which coordinates with

police and child protection services to address various issues, including child

marriage prevention.

101. Despite these efforts, there remains a gap in implementing specific,

targeted measures focused solely on the prevention of child marriage. Existing

schemes, while impactful, do not provide sufficient tools to tackle child marriage

comprehensively. For instance, while training and educational programs are

vital, there appears to be a lack of robust mechanisms to monitor the long-term

outcomes of these initiatives, particularly in rural and underserved areas where

child marriage rates are often high. Additionally, while financial support is

essential in empowering women, it may not always effectively reach the most

vulnerable communities. Therefore, we direct that a special scheme be

introduced, specifically focusing on skill development, vocational training, and

economic stability for women and girls who choose to leave child marriages.

136 See https://www.myscheme.gov.in/schemes/bbbp.

Page 64 of 141 PART V

This scheme should include provisions for legal aid, psychological support, and

financial assistance to help them transition to a life of self-reliance.

G. States’ efforts to curb child marriage

102. Each State and UT in India has introduced training programs, awareness

initiatives, and financial incentives as part of a comprehensive approach to

enforcing the PCMA 137. These efforts encompass preventive training,

education, financial support, and community-based outreach to discourage

child marriage and promote girls' education and empowerment. Relevant up-to-

date data on the States’ efforts to curb child marriage over the last three years

has been placed before this Court. As and by way of illustration, we shall briefly

provide an overview of the efforts made in regard to (i) training schemes, (ii)

awareness programs, (iii) financial incentives and (iv) other incentives. We shall

then analyse the impact of these schemes broadly.

i. Training schemes

103. Across India, States and UTs have conducted extensive training programs

over the past three years to equip officials and communities with the knowledge

needed to combat child marriage. States and UTs are conducting training

programs to equip officials and communities with the knowledge needed to

combat child marriage.

137 Additional Affidavit, Ministry of Women and Child Development (2023). The data highlights the steps undertaken by the States in the Past Three Years – 2020 -2023.

Page 65 of 141 PART V

104. States like Telangana, Uttar Pradesh, Jharkhand, Gujarat, and Chhattisgarh

have conducted training and awareness programs for field workers through

DCPUs, providing critical information on the PCMA. Some states have

partnered with DWCD&SS and UNICEF, with support from partner

organizations, to conduct these training sessions. For instance, Karnataka has

established Child Marriage Prohibition Cells 138 under its Spoorthi Yojana 139 to

train staff in identifying and preventing child marriages. Additionally, Rs. 12.51

crores have been allocated for training Protection Officers and staff in Special

Cells for women and children 140. In Haryana, Protection-cum-Prohibition

officers receive intensive training and sensitization from experts with support

from NIPCCCD and HIPA. These initiatives indicate a structured approach,

focusing not only on immediate prevention but also on long-term societal

change by raising awareness and educating local populations about the harms

of child marriage.

ii. Awareness programs

105. Awareness initiatives play a vital role in changing societal perceptions about

child marriage and promoting girls' education. In terms of the number of

awareness sessions over the last year, most sessions have been reported by

138 These cells deal with the administrative Sanction of Spoorthi Yojana, Action Plan, Prohibition of Child Marriage Act Systematic Procedure, Coordination and Review Committee, Cell Establishment Details, Child Marriage Prohibition Officers Roles and responsibilities and additional CMPOs Orders, Revised Committee Order at Gram panchayat; See details of Government orders and guidelines for major schemes and programs of the Department (2024) https://dwcd.karnataka.gov.in/info- 4/Details+of+Government+orders+and+guidelines+for+major+schemes+and+programs+of+the+Departme nt/en.

139 The Scheme was first introduced on a pilot basis, has been successful, and will now be extended to a few more districts. It aims to improve nutritional levels and empower 12- to-18-year adolescent girls in 5 districts covering 50000 adolescent girls from 11 Special Development Plan Taluks. 140 The State cabinet approved the release of Rs 12.51 crore for ‘Spoorthi scheme’ in 2023.

Page 66 of 141 PART V

Andhra Pradesh, Uttar Pradesh, Odisha and Tamil Nadu.141 Andhra Pradesh

conducted 37,446 sessions, reaching 857,012 participants; Uttar Pradesh

conducted 35,377 sessions, reaching 1,248,394 participants; and Odisha

conducted 33,276 sessions covering 30,755 blocks and villages.142

Additionally, Tamil Nadu has actively engaged communities with widespread

awareness programs tailored to local needs. 143

106. States have deployed varied and unique measures in spreading awareness

such as leveraging local media to economically empower girls, 144 distributing

legal informational pamphlets in rural areas, 145 partnering with NGOs, 146

facilitating community meetings 147, targeted awareness programs focusing on

high school students and school dropouts 148, and running educational YouTube

channels. 149

107. This grassroots, multisectoral collaboration is essential, as it leverages

community-based networks to reach children most at risk, ensuring early

intervention and protection against child marriage. It strengthens coordination

141 NCCPR, Comprehensive Report of Virtual Review Meetings on Child Marriage with Districts All Over India For 2023-2024 (2024).

142 Ibid.

143 Ibid.

144 Delhi Ladli Scheme, 2008 has been operational since 01.01.2009 for controlling female foeticide, improving the sex ratio, and empowering girls educationally and financially. 145

Haryana has engaged 1,855 stakeholders through targeted campaigns, distributing over 50,000 informational pamphlets in rural areas to explain the legal ramifications and adverse impacts of child marriage; Similarly, Tamil Nadu has created thirteen different types of posters, with 3,77,585 posters distributed across the state, and an allocation of Rs. 50 lakhs specifically for campaigns in ten economically disadvantaged districts.

146 Odisha has partnered with NGOs to conduct 1,500 workshops in schools. 147 Assam facilitated community meetings in 200 villages, highlighting the harmful effects of early marriage on health, education, and economic opportunities.

148

Telangana has organized targeted awareness programs aimed at identifying vulnerable children, particularly with the support of Village Child Protection Committee members. These initiatives focus on high school students and school dropouts, working in coordination with ICPS, ICDS, ChildLine, Sakhi staff, Anganwadi teachers, ASHA workers, and local Sarpanchs. 149 Tamil Nadu launched an educational YouTube channel and provided 3-6 months of vocational training to support victims of child marriage, equipping them with skills for a better future.

Page 67 of 141 PART V

between state authorities, NGOs, and local stakeholders to enhance the impact

of these awareness initiatives.

iii. Financial incentives

108. Financial incentives play a significant role in these initiatives. In Telangana,

the Shaadi Mubarak and Kalyana Lakshmi schemes offer cash transfers to

eligible families; for instance, families receive a one-time grant of approximately

Rs. 1 lakh upon the girl reaching adulthood 150. Chhattisgarh offers a similar

scheme, the Noni Suraksha Yojana, while Bihar’s Kanya Utthaan Yojana

provides financial support of Rs. 25,000 per girl to encourage education and

delay marriages and Mantri Vivah Yogana aids families by covering marriage

expenses for eligible girls. Madhya Pradesh’s Ladli Lakshmi Yojana links

financial support to educational milestones, offering up to Rs. 6,000 for

completing certain grades. 151 In Andhra Pradesh, the Jagananna Amma Vodi

program aims to improve the Gross Enrollment Rate (GER) and promote higher

education for girls. Rajasthan’s Mukhyamantri Kanyadan Yojana provides

financial assistance to BPL families from SC, ST, and minority communities for

the marriages of girls upon reaching 18 years.

109. These financial incentives serve as a powerful tool in reducing child

marriage and enhancing girls' education by alleviating the financial expenses of

150 The Government of Telangana launched the 'Kalyana Lakshmi/Shaadi Mubarak scheme provided to unmarried girls who are above 18 years of age from SC, ST, BC and Minority families (with a combined income of both parents not exceeding Rs. 2,00,000 per annum) at the time of their marriage. 151 This aims to discourage child marriage, eradicate female infanticide, rectify the falling birth rate of girls, improve the health and educational status, curtail inequality and uphold the status of the girl child in the society. ln this scheme, there is a provision for a final payment of Rs. 1.00 lakh on completion of 21 years of age of the girl child, on appearing in class 12th examination birth and on early marriage Instructions were issued for Akshay Tritiya.

Page 68 of 141 PART V

families. These States demonstrate promising results in increasing girls'

enrolment in schools through targeted financial assistance programs. However,

these schemes must be supported by robust monitoring and evaluation

mechanisms to ensure that the funds are used effectively and that the intended

outcomes are achieved.

iv. Other initiatives

110. In addition to training, awareness, and financial support, states have

implemented various structural measures to reinforce the PCMA. For example,

some States conduct regular meetings with school authorities to identify and

reintegrate school dropouts, using education as a key tool to prevent child

marriages. States like Assam collaborate with NGOs and CBOs to rehabilitate

victims, provide compensation, and facilitate home visits through DCPU staff.

Several states have also drafted action plans: Uttar Pradesh has District Action

Plans for ending child marriage and adolescent empowerment, incorporating

and adapting activities from the State Action Plan. Rajasthan introduced its

State Action Plan in 2017 152, anchoring multiple interventions and activities to

address the root causes of child marriage. These plans include partnerships

and monitorable indicators, ensuring that progress is tracked and evaluated for

effectiveness and relevance.

152 Rajasthan Government (2017), ‘State Strategy and Action Plan for Prevention of Child Marriage: Towards creating a child marriage free Rajasthan; The document articulates the principles, strategy, vision, objectives, actions, coordination mechanisms and resources that will ensure effective implementation of the actions/interventions to end child marriage in Rajasthan.

Page 69 of 141 PART V

111. Additionally, some States like Karnataka have created online portals to

monitor child marriage cases, enhancing transparency and accountability. 153

These structural initiatives, supported by partnerships with community

organizations and digital monitoring tools, are crucial to a holistic approach that

prevents child marriages and strengthens protection for vulnerable children.

v. Impact analysis of State schemes

112. The data reveals that a comprehensive, multifaceted approach involving

training schemes, awareness programs, and financial incentives is essential for

effectively combating child marriage. However, not all States have adopted this

three-pronged strategy. States such as Andhra Pradesh, Telangana, and Bihar

showcase strong alignment with this multifaceted approach. For instance, the

financial incentive schemes in Telangana and Bihar effectively incentivize

families to delay marriage. States like Haryana, Uttar Pradesh and Chhattisgarh

focus on training and awareness. The absence of direct financial support could

limit their schemes’ impact on economically vulnerable communities. While

these efforts contribute to raising awareness and promoting societal change,

families facing financial hardships may still lean toward early marriage without

economic support for educational or vocational opportunities. The absence of

direct financial assistance may limit the reach and impact of otherwise well-

designed training and awareness programs, as families in economically

challenged communities may not feel the immediate benefits of delaying

marriage without addressing financial constraints.

153 Karnataka’s online portal ‘Surakshini’ keeps track of the child’s status, and every department official involved has to log in regularly.

Page 70 of 141 PART V

113. The data on child marriages across various States and UTs shows a range

of outcomes in both prevention and prosecution efforts over the last three years.

Several states, such as Andhra Pradesh, Karnataka, and West Bengal, report

a high number of cases, though many of these cases were prevented before

the marriages could be solemnized. Karnataka documented 8,348 child

marriage cases, preventing 7,306 of these, while Andhra Pradesh reported

3,413 cases, with 3,136 successfully prevented. This reflects a proactive

approach to preventing child marriages in some states, where authorities

intercept and prevent a significant portion of cases before, they are formalized.

114. Some States illustrate discrepancies between the number of child marriage

cases reported, the number prevented, and the number of FIRs filed.

Maharashtra reported 2043 cases prevented but registered 178 FIRs,

suggesting limited legal follow-through. Similarly, Telangana reported 4440

cases of child marriage, of which only 149 FIRs were filed. Andhra Pradesh,

despite having 3,416 cases registered, filed 10 FIRs. These gaps highlight

potential obstacles in prosecution and a possible need for streamlined

cooperation between child marriage prevention authorities and law

enforcement agencies. Tamil Nadu presents a more comprehensive approach,

where both prevention and FIR filing are high; with 8,966 reported cases, the

state successfully prevented 6,436 marriages and filed 2,392 FIRs.

115. Interestingly, several States and UTs, such as Dadra and Nagar Haveli,

Meghalaya, Mizoram, and Nagaland, reported no cases of child marriage over

the last three years. While this might indicate minimal occurrences of child

marriage in these areas, it could also suggest underreporting or a lack of

Page 71 of 141 PART VI

awareness of the issue among authorities and communities. Furthermore,

States and UTs like Chhattisgarh, Chandigarh and Puducherry, which reported

very low figures or none at all, raise questions about the consistency and

accuracy of data reporting processes.

116. A more comprehensive look across all regions also includes variations in the

effectiveness of interventions. In addition, the number of cases leading to FIRs

is relatively low across most states compared to the number of marriages

reported, highlighting potential gaps in legal action and prosecution efforts.

Even in states with high intervention rates, the limited legal action suggests that

additional support may be needed to ensure accountability and deterrence.

VI. Traversing frontiers: international human rights norms

117. The development of child rights law is highly influenced by the evolving legal

standards in international law. The comity of nations has arrived at a broad

consensus rooted in the goal to realise universal human rights of children.

Domestically and abroad, various jurisdictions have developed their legal

standards under the influence of global advancements in international bodies.

It is therefore instructive to look at the progress made and prevailing standards

on child rights in the context of early and forced marriage in international law.

We shall therefore trace the universal framework on child rights, various

regional advancements and the rights-based framework against child marriage

presently.

Page 72 of 141 PART VI

A. Universal framework

118. Early international conventions did not explicitly prohibit child marriage. With

the evolution of international law, the community of nations inched closer to an

agreeable standard against child marriage. We shall trace this evolution in

international human rights norms presently. First, we shall briefly overview the

Universal Declaration of Human Rights, 154 then we shall explore the

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

Institutions and Practices Similar to Slavery of 1956 155 and the International

Covenant on Civil and Political Rights 1966. 156 Lastly we shall look at the two

seminal conventions on the issue of child marriage, namely, the Convention on

the Elimination of All Forms of Discrimination against Women 1979 157 and the

CRC 1989.

i. Universal Declaration of Human Rights

119. The UDHR adopted as General Assembly Resolution 217 A (III) in 1948, 158

set forth fundamental principles regarding the right to marry. Article 16(1) of the

UDHR stipulates that men and women of full age, without any limitation due to

race, nationality, or religion, have the right to marry and to found a family.159

They are entitled to equal rights as to marriage, during marriage, and at its

dissolution. Article 16(2) further stipulates that marriage shall be entered into

154 ‘UDHR’ 155 The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956; India ratified it on 23 June 1960. 156 ‘ICCPR’ 157 ‘CEDAW’.

158 The Universal Declaration of Human Rights, G.A. Res. 217, U.N. Doc. A/810 (1948). 159 Ibid, article 16(1); See also Maja Eriksson, ‘Article 16’ in The Universal Declaration of Human Rights: A Commentary, ed. Aide Eide et al. (Oxford: Scandinavian University Press, 1992), 243.

Page 73 of 141 PART VI

only with the free and full consent of the intending spouses. 160 Although it does

not specify a minimum age for marriage, the UDHR establishes that marriage

should be based on free and full consent, laying an early framework for

safeguarding autonomy and protecting individuals from coerced or forced

marriages.161

120. In the years following the UDHR, International Human Rights Law162 began

to recognize and address the specific vulnerabilities and abuses associated

with child marriage. This shift was a response to growing evidence that child

marriage disproportionately harms girls, undermining their education, health,

and prospects for economic independence. Recognizing that such marriages

are often non-consensual and perpetuate cycles of poverty and inequality, the

international community began drafting conventions aimed at setting protective

standards for marriageable age and conditions.

ii. Recognition in political conventions

121. The Supplementary Convention on the Abolition of Slavery, the Slave Trade,

and Institutions and Practices Similar to Slavery of 1956 163 expanded on these

protections by directly addressing practices similar to slavery, including child

marriage. Article 2 of the Convention mandates that State Parties prescribe,

where appropriate, suitable minimum ages of marriage and encourage the use

of facilities whereby the consent of both parties to a marriage may be freely

expressed in the presence of a competent civil or religious authority 164. This

160 Ibid, article 16(2).

161 Ibid.

162 ‘IHRL’ 163 The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956.

164 Ibid, Article 2.

Page 74 of 141 PART VI

provision reflects a recognition that child marriage can be exploitative and akin

to slavery. In aligning marriage requirements with those designed to end

slavery-like practices, the Convention highlights the UN's stance against child

marriage as a form of coercion and exploitation.

122. These standards were developed as a matter of political rights guarantee in

the ICCPR 165. Article 23(2) establishes the right of men and women of

marriageable age to marry and to found a family. 166 Article 23(3) prescribes that

no marriage shall be entered into without the free and full consent of the

intending spouses. 167 Finally, Article 23(4) requires that State Parties take

measures to ensure equality in marriage, signalling the UN’s increasing

recognition of individual autonomy, choice, and consent in marriage. 168 This

framework not only advocates for minimum marriageable age requirements but

also emphasizes free and full consent. The framers of these documents aimed

to prevent child marriage by specifically using the terms “men and women,”

rather than “males and females,” to imply an age of maturity and decision-

making capacity necessary for marriage. 169

iii. Targeted focus: the Convention on the Elimination of All Forms of

Discrimination against Women and the Convention on the Rights of the

Child.

123. The progress of the international community led to the ground-breaking

inclusion of child marriage as an expressly recognised illegality in the

165 UN General Assembly (1966). International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171.

166 ICCPR, Article 23 (2).

167 ICCPR. Article 23(3).

168 ICCPR. Article 23(4).

169 See Maja Eriksson, ‘Article 16’ in The Universal Declaration of Human Rights: A Commentary, ed. Aide Eide et al. (Oxford: Scandinavian University Press, 1992), 243.

Page 75 of 141 PART VI

CEDAW 170. Article 16(2) explicitly invalidates child betrothals and marriages,

calling for legislation to establish a minimum age for marriage and mandate

official registration. 171 This is crucial to CEDAW’s objective of safeguarding

women's rights and autonomy, highlighting that child marriage undermines the

agency, equality, and dignity of girls and women. By emphasizing that child

marriages should have no legal effect, CEDAW directly addresses the systemic

inequalities perpetuated through such practices.

124. The guarantee to women in CEDAW was further tailored as a matter of child

rights in 1989 with the adoption of the CRC 172. It was essential to establish a

global framework dedicated to children because, despite previous human rights

treaties, there remained gaps in protections for children who, due to their age

and vulnerability, require special safeguards. The CRC acknowledges the

unique needs of children for development, 173 care, and protection from abuse,

exploitation, and neglect. 174 The international community recognized that

children are often marginalized, and their rights overlooked, which made it

critical to implement specific provisions tailored to them.

125. Article 1 of the CRC defines a child as a person below the age of eighteen

unless, under the law applicable to the child, a majority is attained earlier. 175 In

the context of child marriage, this provision sets a clear threshold for defining

170 UN General Assembly (1989). Convention on the Elimination of All Forms of Discrimination Against Women, United Nations, Treaty Series, vol. 1249, p. 13. 171 CEDAW, Article 16 (2).

172 UN General Assembly (1989). Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3.

173 CRC, Article 6(2); State Parties shall ensure to the maximum extent possible the survival and development of the child.

174 CRC, Article 19 (1); Requires States to take all appropriate measures to protect the child from all forms of abuse, neglect, or maltreatment while in the care of parents. 175 CRC, Article 1.

Page 76 of 141 PART VI

who is considered a child, ensuring that international standards focus on the

protection of minors from early and forced marriages. Article 19(1) of the CRC

requires State Parties to take all necessary legislative, administrative, social,

and educational measures to protect children from all forms of physical or

mental violence, injury, abuse, neglect, or exploitation, including sexual abuse,

whether committed by parents, guardians, or others responsible for the child’s

care. 176 This article recognizes that children, due to their vulnerability, require

comprehensive protection across various domains of life, especially from forms

of violence that may occur within the family or caregiving environment. This is

particularly relevant in cases of child marriage, where minors may face abuse

or exploitation under the guise of familial or cultural practices. Article 19(2)

further emphasizes the need for protective measures, including the creation of

social programs, support services for children and caregivers, and judicial

mechanisms to address and prevent maltreatment.177 This highlights the

importance of establishing a robust framework for the identification, reporting,

and follow-up of child abuse cases, offering practical measures for intervention

and prevention.

B. Regional framework

126. In addition to international conventions, three important regional

conventions have addressed the issue of child marriage. Regional conventions

reflect the targetter focus of a region to pivot their shared values and goals into

176 CRC, Article 19(1).

177 CRC. Article 19(2) Page 77 of 141 PART VI

obligatory and tangible outcomes. We shall elucidate the framework developed

in the African Union, the European Union and the SAARC.

i. African Union

127. The African Charter on the Rights and Welfare of the Child,178 adopted in

1990, 179 builds upon international frameworks by requiring State Parties to

enact legislation setting eighteen as the minimum age for marriage. Article 21

of the Charter specifically addresses “Protection against Harmful Social and

Cultural Practices,” stating that all necessary measures should be taken to

eliminate customs detrimental to children’s health, dignity, and development. 180

Under Article 21(2), child marriage and betrothal are prohibited, with a mandate

that states enact laws setting a minimum marriageable age of eighteen and

ensuring compulsory marriage registration. 181

128. In Association pour le Progrès et la Défense des Droits des Femmes

Maliennes (APDF) and the Institute for Human Rights and Development in

Africa (IHRDA) v. Republic of Mali,182 the African Court on Human and

Peoples’ Rights addressed significant issues regarding child marriage. The

applicants argued that Mali’s Family Code of 2011, which set the minimum

marriage age for girls at sixteen (with exceptions allowing marriage as young

as fifteen), violated key international agreements such as the African Charter

178 ‘ARWRC’ 179 The African Charter on the Rights and Welfare of the Child (1990). OAU Doc. CAB/LEG/24.9/49, entered into force Nov. 29, 1999; See also IPAS, African Alliance for Women’s Reproductive Health Rights – A Handbook for Advocacy in the African Human Rights System (Chapel Hill: IPAS, 2006), 29. 180 ARWRC, Article 21(1).

181 ARWRC, Article 21(2).

182 Association pour le progrès et la défense des droits des femmes Maliennes (APDF) and the Institute for Human Rights and Development in Africa (IHRDA) v. Republic of Mali, App. No. 046/2016, Judgment, African Court on Human and Peoples' Rights [Afr. Ct. H.P.R.] (May 11, 2018).

Page 78 of 141 PART VI

on Human and Peoples’ Rights on the Rights of Women in Africa 183 and the

ACRWC both of which require a minimum marriage age of eighteen to protect

the rights of children. Furthermore, the applicants raised concerns that religious

authorities in Mali often performed marriages without ensuring full and free

consent from both parties, leading to forced marriages that particularly affected

young girls. 184

129. The court found that Mali’s Family Code was incompatible with its

obligations under multiple international instruments, including the Maputo

Protocol, the ACRWC and CEDAW. 185 Specifically, the Family Code’s

provisions on minimum marriage age and the lack of mandatory consent were

seen as violations of these treaties, which seek to eliminate harmful practices

and ensure gender equality and child protection.186 Consequently, the court

ordered Mali to amend its Family Code to align it with these international

standards by setting a minimum marriage age of eighteen, ensuring free

consent to marriage, and providing equal inheritance rights for all children,

including those born outside of marriage.

130. This ruling is significant because it highlights the enforceability of

international human rights treaties at the regional level, compelling Mali to

amend its laws to meet international obligations. By holding Mali accountable,

the court reinforced the legally binding nature of the Maputo Protocol, ACRWC,

and CEDAW, promoting the standardization of human rights protections across

Africa. This decision also sets a precedent for other African nations,

183 ‘Maputo Protocol’ 184 Ibid, para 59, 60, 62.

185 Ibid, para 124.

186 Ibid, para 125.

Page 79 of 141 PART VI

emphasizing the duty to harmonize domestic laws with international child

protection standards.

ii. European Union

131. In the European Union, the European Convention on Human Rights187 is

a key legal instrument that impacts issues of marriage and child protection.

Specifically, Article 12 of the ECHR grants men and women of marriageable 188

age the right to marry 189, while Article 8 protects the right to respect for private

and family life. 190 These articles do not directly set a minimum age for marriage

but do highlight the importance of individual autonomy and respect for personal

and family life, which are relevant to child marriage discussions. Article 3,

which prohibits inhuman or degrading treatment, has also been interpreted to

protect vulnerable individuals, including children, from practices that may be

harmful or coercive, such as child marriage.191

132. Early marriage in the European Region is described as an abrupt and

premature transition from childhood to adult life for the affected minors, who are

predominantly girls 192. At the EU level, the resolution of the European

Parliament of 4 October 2017 on “Ending Child Marriage” references the

considerable negative effects of child marriage on the rights of children, in

particular those of girls affected by the practice.

187 “ECHR” 188 The European Convention on Human Rights, 1950; See https://www.echr.coe.int/european-convention- on-human-rights 189 ECHR, Article 12.

190 ECHR, Article 8.

191 Ibid, Article 3.

192 Parliamentary Assembly of the Council of Europe, Forced Marriage in Europe (2018), Resolution 2233, para. 2; Recognised that Early marriage thereby typically leads to restricted opportunities for education and economic development of women, who are mostly affected.

Page 80 of 141 PART VI

133. A landmark case in the German Federal Constitutional Court 193 involved a

Syrian couple who married in 2015 under Syrian law, with the wife being 14 at

the time. Fleeing the Syrian conflict, they arrived in Germany, where the

authorities took the young wife into care due to her minor status. Citing the Act

to Prevent Child Marriages 2017, the German courts automatically invalidated

the marriage under Article 13(3) no. 1 of the Introductory Act to the Civil Code

(EGBGB), which prohibits the recognition of marriages if one spouse was under

16 at the time. The husband contested this, arguing that their marriage was

valid under Syrian law and should be recognized in Germany.

134. The Federal Constitutional Court of Germany ruled that, although the state

has a legitimate interest in protecting minors from child marriage, the automatic

invalidation of marriages involving minors under 16 was unconstitutional. 194 The

Court found that the law lacked provisions for dealing with the legal

consequences of invalidation, and it failed to offer the possibility of validating

the marriage once both parties reached adulthood. This automatic invalidation

was seen as conflicting with Article 6(1) of the German Basic Law, which

protects the right to marry and form a family 195. It is a right that is based on the

free will, equality and autonomy of the partners and involves special mutual

obligations, with the official ceremony of marriage serving to substantiate the

marriage through a formal act. 196

135. The Court recognised that the invalidation of such marriages not only

safeguards minors from the inherent risks associated with marital cohabitation

193 See BVerfG, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 (Germany). 194 Ibid, Para 44-45.

195 Ibid, Para 107.

196 Ibid, Para 114 -116.

Page 81 of 141 PART VI

but also enhances the legal options available to guardians. They can determine

the living arrangements of married minors without considering their marital

status, ensuring that decisions prioritize the child's best interests under IHRL 197.

Protecting minors from early marriage aligns with the state's duty to uphold life

and physical integrity under Article 2(2) of the German Basic Law and

addresses the need to eliminate disadvantages faced by women.

As a result, the court ordered the legislature to amend the law by 30 June 2024,

to address these gaps, thus providing legal clarity on the status of such

marriages and offering a pathway for validation after reaching adulthood. 198

This case illustrates the complexities involved in addressing child marriage

within Europe, particularly in the context of refugees and migration. While the

German law aimed to protect minors, the Federal Constitutional Court

emphasized the need for balance.

136. In India, the PCMA protects child brides and any child born from a child

marriage by prescribing for their maintenance, residence and custody. Further,

any child born from such a marriage is deemed legitimate. These provisions

apply even when the marriage has been nullified at the instance of the minor

contracting party. India therefore does not have the same legal gap that the

Federal Constitutional Court observed in German law. Protections of

maintenance, residence and custody under family law are a recognition of the

responsibilities that society places on families after marriage. The philosophy is

that a law must not merely penalise criminal action – in this case child marriage

– but must also compensate and address the harm meted out to the victim.

197 Ibid.

198 Ibid, Para 190-192.

Page 82 of 141 PART VI

iii. SAARC

137. Child marriage is a significant concern in South Asia, where approximately

one in four young women are first married or in union before reaching the age

of eighteen.199 The prevalence of child marriage varies greatly across the

region, with over 50% of girls married before eighteen in Bangladesh, compared

to only 2% in the Maldives. 200 Furthermore, even within individual countries,

disparities exist; for example, Afghanistan shows a tenfold difference in child

marriage rates across its provinces. 201 Although child marriage is less common

among boys, it still occurs, with nearly 1 in 10 young men in Nepal reporting

childhood marriages.202 Despite these challenges, South Asia is recognized for

its progress in reducing child marriage rates, showcasing a potential pathway

for other regions facing similar issues.

138. The SAARC Charter, 203 established in 1985, lays the foundation for regional

cooperation among the eight South Asian countries—Afghanistan, Bangladesh,

Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka. It emphasizes the

need for collaboration in various sectors, including social development, which

encompasses the protection of children's rights. The Convention on Regional

Arrangements for the Promotion of Child Welfare in South Asia, adopted in

199 UNICEF (2023). A Profile of Child Marriage in South Asia; UN (2022). United Nations Department of Economic and Social Affairs, Population Division, World Population Prospects. 200 Ibid.

201 Ibid.

202 Ibid.

203 The Charter of the South Asian Association for Regional Cooperation; The objectives of the association are to: a) promote the welfare and quality of life of the peoples of South Asia; b) accelerate economic growth, social progress, and cultural development, ensuring individuals can live with dignity and realize their full potential; c) enhance collective self-reliance among South Asian countries; d) foster mutual trust, understanding, and appreciation of shared challenges; e) encourage collaboration and mutual assistance in economic, social, cultural, technical, and scientific areas; (f) strengthen cooperation with other developing countries; g) collaborate in international forums on common interests; h) engage with international and regional organizations with similar goals

Page 83 of 141 PART VI

2002 204, specifically addresses the alarming prevalence of child marriage in the

region. This Convention recognizes child marriage as a violation of children's

rights and advocates for legislation to set a minimum marriage age, promote

awareness, and protect children from harmful practices.

139. The Convention reinforces the commitment of SAARC member states to

create a protective environment for children by calling for effective measures to

combat child marriage. This includes the establishment of monitoring systems,

the promotion of education, and the mobilization of community resources to

challenge cultural norms that perpetuate child marriage.

C. Rights based framework

140. Child marriage is forced marriage and international law recognises it as

such. Early marriage, or child marriage involves children under eighteen years.

The majority of child marriages involve minor girls. The joint General

Recommendation and Comment on harmful practices from the CRC and the

CEDAW Committee states 205:

“A child marriage is considered to be a form of forced marriage, given that one and/or both parties have not expressed full, free, and informed consent. As a matter of respecting the child’s evolving capacities and autonomy in making decisions that affect her or his life, a marriage of a mature, capable child below 18 years of age may be allowed in exceptional circumstances, provided that the child is at least 16 years of age and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity, without deference to culture and tradition.” (emphasis supplied)

The Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, 2002.

204 Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against 205

Women /General comment No. 18 of the Committee on the Rights of the Child on harmful practices”, UN Doc CEDAW/C/GC/31-CRC/C/GC18 (2014), para 20.

Page 84 of 141 PART VI

141. The joint General Recommendation and Comment proposed a detailed

regime of laws to address forced and early marriage, including raising

awareness, addressing root causes, ensuring proper registration of births and

marriages, protection orders, and ensuring access to remedies and reparations,

including the use of criminal law. 206

142. This issue has been dealt with in international case laws as well. In

Prosecutor v. Dominic Ongwen,207 the International Criminal Court's Appeals

Chamber focused on a former commander of the Lord's Resistance Army who

was charged with war crimes and crimes against humanity. The court had to

adjudicate whether the legal characterization of 'forced marriage' could be

classified as an 'other inhumane act' under Article 7(1) of the Rome Statute. 208

The Trial Chamber noted that forced marriage is similar in nature and gravity to

the acts listed in Article 7(1).209

143. The violation of relational autonomy has been characterized in various ways

under international law. Within the framework of international human rights law,

forced marriage fundamentally denies individuals the right to freely and

consensually enter into a conjugal union. This denial not only infringes upon

personal liberty but also undermines the essential dignity and agency of

individuals, particularly women, who are disproportionately affected by such

practices. The Court noted:

“The first type of harm caused by forced marriage, the violation of relational autonomy, has been

206 Ibid.

207 No. ICC-02/04-01/15 A A2 (Ongwen Trial Judgment).

208 The Rome Statute, Article 7(1); “Other inhumane Act” is defined as (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” 209 Ongwen Trial Judgment, para. 2751.

Page 85 of 141 PART VI

described in various ways under international law. Under international human rights law, the crux of forced marriage is the denial of the right to freely and consensually enter into marriage. In other words, the focus is on consent to marriage. For example, the International Covenant on Civil and Political Rights ("ICCPR”) states that “No marriage shall be entered into without the free and full consent of the intending spouses”. Similarly, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). The same right freely to choose a spouse and to enter into marriage only with their free and full consent”. International human rights law bodies have recognized that forced marriage, as defined under international human rights law, can take place both in peacetime and in armed conflict. International criminal law similarly recognizes the deprivation of relational autonomy through the imposition of a “conjugal union” on a victim. This union need not be marriage as recognized under domestic law, as it also includes relationships in which the victim is forcibly attached to a particular person outside of the context of domestic marriage law. These forced conjugal unions can take place during armed conflict or ‘peacetime’ mass atrocity, and under oppressive regimes, and can occur regardless of the victim’s existing marriage status.” (emphasis supplied)

i. Right to free choice and autonomy

144. The issue of forced marriage is intricately linked to child marriage, as both

practices deny individuals, particularly minors, the fundamental right to make

autonomous decisions regarding their lives. The imposition of forced marriage

reflects the broader systemic issue of coerced relationships that deny the

victims agency and autonomy. This lack of agency is heightened in the context

of child marriage, where children are subjected to societal and familial

pressures that undermine their ability to give informed consent. This mirrors the

definition of forced marriage as articulated in international law, where relational

Page 86 of 141 PART VI

autonomy is violated, and the individual's right to freely choose a partner is

disregarded. International law has evolved a rights-based framework to address

myriad issues. Child marriage is an evil against which the international

community has reflected its commitment through the recognition of rights.

These rights are traced below.

145. This encompasses the right to free and informed consent and the right

against gender-based violence. 210 These interconnected rights form the

foundation for ensuring that marriage is a consensual partnership rather than a

coercive arrangement, particularly when addressing the issue of child marriage.

a. Right to free and informed consent

146. Various international instruments211 emphasize the necessity for parties

entering into marriage to provide free and full consent. CEDAW's General

Recommendations on Marriage and family relations further elucidate that when

men and women marry, they assume important responsibilities. Consequently,

marriage should not be permitted before they attain full maturity and capacity

to act. 212 For women to exercise full, free, and informed consent as outlined in

Article 16(1)(b) of CEDAW, 213 they must possess the cognitive capacity to

comprehend the meaning and responsibilities associated with marriage. This

entails having access to comprehensive information about their potential

210 ‘GBV’ 211 See Article 16(2) of the Universal Declaration of Human Rights (UDHR) 1948, Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966, Article 23(3) of the ICCPR, Article 1 of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1962, Article 16(1)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1975, Article 17(3) of the American Convention on Human Rights 1969, and Article 33 of the Arab Charter on Human Rights 2004.

212 UN Committee on the Elimination of Discrimination Against Women, CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations 1994, para 16. 213 CEDAW, article 16(1)b states ‘The same right freely to choose a spouse and to enter into marriage only with their free and full consent’.

Page 87 of 141 PART VI

spouse, understanding the institution of marriage, and recognizing their rights

to choose if, when, and whom to marry.

147. This principle has been elucidated in different judgments, reinforcing the

right to free and informed consent within the context of marriage. In National

Coalition for Gay and Lesbian Equality v. Minister of Justice214 the

Constitutional Court of South Africa emphasized that autonomy encompasses

more than mere freedom from state interference; it acknowledges the need for

individuals to choose their partners freely. The court in that case held that:

“117. Autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the state. What is crucial is the nature of the activity, not its site. While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves”

148. Similarly in Artavia Murillo ET AL v. Costa Rica, 215 the Inter-American

Court of Human Rights addressed the question of whether the State’s

prohibition on the practice of in vitro fertilisation (IVF) constituted an arbitrary

interference with the right to private life. The court affirmed that the right to

private life extends beyond privacy to include personal autonomy and the

freedom to establish relationships. The Court held that:

“The scope of the protection of the right to private life has been interpreted in broad terms by the international human rights courts, when indicating that this goes beyond the right to privacy. The

214 1999 (1) SA 6, CC (South Africa).

215 Inter-Am. Ct. H.R. (Ser. C) No. 257 (American Court of Human Rights).

Page 88 of 141 PART VI

protection of private life encompasses a series of factors associated with the dignity of the individual, including, for example, the ability to develop his or her own personality and aspirations, to determine his or her own identity and to define his or her own personal relationships. The concept of private life encompasses aspects of physical and social identity, including the right to personal autonomy, personal development and the right to establish and develop relationships with other human beings and with the outside world. The effective exercise of the right to private life is decisive for the possibility of exercising personal autonomy on the future course of relevant events for a person’s quality of life. Private life includes the way in which individual views himself and how he decides to project this view towards others, and is an essential condition for the free development of the personality.” (emphasis supplied)

149. These judgments emphasize the critical role of free and informed consent in

marriage, particularly regarding child marriage.

b. Right against gender-based violence

150. Further, the right against GBV is recognised. Article 34 of the CRC provides

a right to protection from sexual exploitation and abuse, defining child marriage

as a form of sexual exploitation. 216 Article 19 prohibits all forms of physical or

mental violence, abuse, or exploitation, with many young brides suffering these

consequences. 217 Child marriage frequently leads to violence against child

wives, and although CEDAW does not specifically label child marriage as

violence against women, it identifies forced marriage as a form of family

violence in General Recommendations 19 on violence against women. 218 The

216 CRC, Article 34.

217 CRC, Article 19.

218 See CEDAW General Recommendation No. 19: Violence against Women, Adopted at the Eleventh Session of the Committee on the Elimination of Discrimination against Women (1992), Document A/47/38 [Para 11].

Page 89 of 141 PART VI

Committee interprets Articles 2(f), 5, and 10(c) together, recognizing that

traditional attitudes regarding women's subordination perpetuate practices

involving violence or coercion, such as forced marriage.219

151. The UN Declaration on the Elimination of Violence against Women, adopted

by the General Assembly, defines violence as any act of GBV that results in, or

is likely to result in, physical, sexual, or psychological harm or suffering to

women. 220 The Declaration calls on States to exercise due diligence to prevent,

investigate and punish acts of violence against women. Article 4 requires

member states to condemn violence against women and not invoke custom,

tradition, or religion to evade their obligations to eliminate such violence. 221

152. The Istanbul Convention is the first international treaty to contain a definition

of gender as a socially constructed category that defines “women” and “men”

according to socially assigned roles, behaviours, activities, and attributes.222 It

firmly establishes the link between achieving gender equality and the

eradication of violence against women. Based on this premise, it recognizes the

structural nature of violence against women and that it is a manifestation of the

historically unequal power relations between women and men. The Convention

specifically asks State parties to ensure that culture, custom, religion, tradition

or so-called ‘honour’ shall not be considered as justification for any acts of

violence. Evidently, the human and fundamental right against GBV has found

firm roots in the international sphere. This affords protection against child

219 Ibid, [Para 24].

220 UN General Assembly, Declaration on the Elimination of Violence against Women, A/RES/48/104, UN General Assembly (20 December 1991).

221 DEVAW, Article 4.

222 Council of Europe (2014). The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.

Page 90 of 141 PART VI

marriage, as it is a form of GBV that disproportionately affects girls and women.

It subjects them to early and forced marriages perpetuating power imbalances

and often leading to physical, emotional, and sexual abuse.

ii. Right to education

153. The right to education is violated by the commission of child marriage under

international law. These rights are manifested in the rights of children to –

primary education, information, and sex education.

a. Right to primary education

154. The CRC mandates that States ensure primary education is free and

compulsory. Article 28 states that the child has the right to education, 223 while

Article 29 emphasizes that education should develop the child's personality,

talents, and abilities, as well as promote respect for human rights and

fundamental freedoms. 224

155. The CRC’s Guidelines for Periodic Reports require States to outline specific

measures taken to ensure compulsory primary education, including minimum

age for enrolment and compulsory education. 225 The Committee further extends

this obligation to include secondary education, reinforcing the need for

comprehensive educational policies. The Concluding Comments of the

CEDAW Committee has expressed ongoing concern regarding the impact of

223 CRC, Article 28.

224 CRC, Article 29.

225 Concluding observations of the UN Committee on the Rights of the Child (2002-2023) – extracts concerning inclusive education and disability, gender and ethnic background and related issues.

Page 91 of 141 PART VI

early and forced marriages on school dropout rates among girls and urged

States to adopt all available measures to eliminate child marriage. 226

156. Research from UNESCO highlights that, in many countries, marriage and

schooling are seen as mutually exclusive. 227 In South Asia, particularly in

Bangladesh, India, and Nepal, child brides are four times more likely to be out

of school than their unmarried peers. 228 While the relationship between

education and child marriage is clear, the mechanisms driving this connection

are complex, suggesting that interventions must be multifaceted to address

both issues simultaneously.

b. Right to be informed

157. International obligations also emphasize the importance of awareness and

education regarding the adverse effects of child marriage. Article 12 of the CRC

asserts that children should be provided with information that aids their

understanding of issues affecting them, including the potential consequences

of early marriage.229 The right to be informed empowers young individuals to

make autonomous choices about their lives, fostering an environment

conducive to resisting harmful practices such as child marriage. Education

plays a critical role in this regard; when girls are aware of their rights and the

detrimental effects of early marriage on their health, education, and economic

prospects, they are better equipped to advocate for themselves and their peers.

226 See Concluding observations of the UN Committee on the Elimination of Discrimination Against Women (2002-2010) – extracts concerning inclusive education; Also see CEDAW Committee Concluding Observations, India (Jan 1990). UN Doc. A/55/38, Para 78. 227 UNESCO (2021). Reimagining our futures together: a new social contract for education, International Commission on the Futures of Education; See also UNFPA (2012). Marrying Too Young: End Child Marriage, 76 p.

228 Ibid.

229 CRC, Article 12.

Page 92 of 141 PART VI

c. Right to sex education

158. Major United Nations conferences of the 1990s, such as the International

Conference on Population and Development 230 held in Cairo in 1994,

emphasized the importance of human rights, gender equality, sexual and

reproductive health, and HIV/AIDS awareness. 231 The ICPD's Programme of

Action affirmed that sexual health is a vital component of overall health, stating

that all individuals should have access to information and services related to

sexual and reproductive health. 232 In subsequent years, documents like the

Yogyakarta Principles 233 and the Bali Global Youth Forum have built upon these

foundations, addressing the rights of marginalized groups, including

adolescents, to access comprehensive sexuality education. In 2012, the UN

Commission on Population and Development reaffirmed these principles -

calling states to provide evidence-based comprehensive education on human

sexuality, sexual and reproductive health, human rights, and gender equality,

enabling youth to engage with their sexuality positively and responsibly. 234

159. In a landmark ruling, the European Court of Human Rights 235 upheld young

people's right to sexuality education in schools. This case involved a refusal by

a primary school to grant a request from a parent seeking to exempt her

daughter, then seven years old, from sex education lessons. The EtCHR opined

230 “ICPD” 231 UN Population Fund (1995). Report of the International Conference on Population and Development, Cairo, 5-13 September 1994, A/CONF.171/13/Rev.1; UN coordinated an International Conference on Population and Development (ICPD) in Cairo, Egypt. Its resulting Programme of Action is the steering document for the United Nations Population Fund (UNFPA). 232 Ibid.

233 International Commission of Jurists (2007). Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. International Commission of Jurists.

234

See UNESCO (2018). International technical guidance on sexuality education: an evidence-informed approach.

235 A.R. and L.R. v. Switzerland, application no. 22338/15 (EtCHR).

Page 93 of 141 PART VI

that this refusal violated the right to freedom of thought, conscience, and

religion. It also violates Article 2 (the right to life) and Article 8 (the right to

respect for private and family life). The Court recognized that one of the aims

of sex education is to prevent sexual violence and exploitation, threats that

compromise children's physical and mental health.236 It also stressed that state

education should prepare children for social realities, justifying the inclusion of

sexual education for even very young children in primary education.

iii. Right to development of children

160. A lack of education denies girls their right to personal development as

guaranteed in the CRC which is crucial for them to prepare for adulthood and

effectively contribute to the future well-being of their families and society. The

CRC highlights the significance of personal development, emphasizing that

every child has the inherent right to develop their personality, talents, and

mental and physical abilities to their fullest potential. 237 The right to personal

development is intricately linked to various aspects of a child's well-being,

particularly health. The CRC interrelates with five other articles, 238 which

collectively address eight specific dimensions of child development that require

protection: physical development, mental development, moral development,

social development, cultural development, spiritual development, development

of the personality, and development of talent.

161. Under Article 29(1)(a) of the CRC, States Parties agree that the education

of the child shall be directed toward the development of the child's personality,

236 Ibid.

237 See OHCHR (2013). Realising the Right to Development: Essays in Commemoration of 25 Years of the United Nations Declaration on the Right to Development. 238 CRC, Articles 18(1), 23(3), 27(1), 29(1)(a), and 32(1). Page 94 of 141 PART VI

talents and mental and physical abilities to their fullest potential.239 Article

29(1)(d) further emphasizes that education should be oriented toward the

preparation of the child for a responsible life in a free society, in the spirit of

understanding, peace, tolerance, equality of sexes, and friendship among all

peoples. 240 Similarly, Article 13(1) of the International Covenant on Economic,

Social and Cultural Rights 241 stipulates that education shall enable all persons

to participate effectively in a free society. 242 Article 13(2) reinforces this by

asserting that education should be directed to the full development of the

human personality and the sense of its dignity." 243

162. As Professor Nico Schrijver argues, the right to development functions as a

cluster right, encompassing a range of interconnected rights.244 These include

the right to a decent standard of living, which encompasses the right to food,

water, clothing, and housing; the right to work; the right to education; the right

to life; and the right to freedom of expression and organization. Together, these

rights form a comprehensive 'human right to development,' which is essential

for empowering children, particularly girls, to realize their full potential and

actively participate in their communities. As we shall explore below, these rights

ought to influence our understanding of the law in dealing with child rights in

India.

239 CRC, Article 29(1)(a) 240 CRC, Article 29(1)(d).

241 UN General Assembly (1966). International Covenant on Economic, Social and Cultural Rights, United Nations, Treaty Series, vol. 993, p. 3.

242 ICESCR, Article 13(1).

243 ICESCR, Article 13(2).

244 Nico Schrijver, Development without Destruction: The UN and Global Resource Management (Bloomington, Indiana University Press, 2010), p. 221.

Page 95 of 141 PART VII

VII. India’s obligation

163. Article 51 of the Indian Constitution emphasizes the importance of

international law and treaty obligations, urging the Indian state to make

concerted efforts to adhere to and respect international legal standards245. This

provision establishes a foundation for integrating international human rights law

into domestic legal frameworks, particularly concerning the protection of

vulnerable populations such as children.

164. This Court has consistently affirmed India’s obligation with regard

international conventions and norms when interpreting domestic laws. 246 In

Vishaka v. State of Rajasthan,247 this Court formulated basic principles and

guidelines based on international instruments aimed at preventing sexual

harassment at the workplace. 248 In Vellore Citizens Welfare Forum v. Union

of India 249 this Court recognized aspects related to sustainable development

as part of customary international law.

165. In Apparel Export Promotion Council v. AK Chopra250 this Court had the

occasion to opine on the judiciary's obligation to give due regard to international

conventions, particularly when there is no inconsistency between these

245 The Constitution of India, Article 51; The article deals with Promotion of international peace and security

- The State shall endeavour to--(a) promote international peace and security; (b) maintain just and honourable relations between nations;(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and (d) encourage settlement of international disputes by arbitration. 246

See Prem Shankar Shukla v. Delhi Admn. (1980) 3 SCC 526; Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa (1987) 2 SCC 469; Sheela Barse v. Secy., Children's Aid Society [(1987) 3 SCC 50, 51] SCC at p. 54; Vishaka v. State of Rajasthan (1997) 6 SCC 241; People's Union for Civil Liberties v. Union of India (1997) 3 SCC 433 and D.K. Basu v. State of W.B. (1997) 1 SCC 416, 438. 247

(1997) AIR 3011.

248 These guidelines were informed by several international instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Universal Declaration of Human Rights, and the International Labour Organization (ILO) Convention No. 111 on discrimination in employment. 249 (1996) INSC 952; The Court incorporated principles like the “precautionary principle” and the “polluter pays principle” into domestic law.

250

(1999) 1 SCC 759.

Page 96 of 141 PART VII

conventions and domestic laws, or when domestic law is silent on a particular

issue.

“This Court has in numerous cases emphasized that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law.”

166. In M/s Entertainment Network (India) Ltd. v. M/s Super Cassette

Industries Ltd.251 this Court expressed its willingness to adopt principle of

international conventions to which India is not a signatory where they were

compatible with Indian law. This approach was further exemplified in Ravindra

Kumar Dhariwal v. Union of India 252 where this Court maintained that even

when India is not a signatory to certain international treaties, the principles

enshrined within them could still inform the interpretation of domestic legislation.

167. The overarching theme emerging from these judgments is that India has a

dual obligation: to respect its commitments under international treaties and to

interpret domestic laws in a manner consistent with international human rights

standards. This is particularly relevant concerning child marriage, as India has

ratified several international instruments that set the minimum age for marriage

251 This position has been reiterated by various other decisions of this Court. See, for instance, National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 252 Ravinder Kumar Dhariwal v Union of India 2021 INSC 916.

Page 97 of 141 PART VIII

at eighteen, including CEDAW 253 and the CRC 254. Moreover, even if India is not

a party to certain regional conventions that address child marriage directly, the

principles of non-discrimination, the best interests of the child, and the right to

free and informed consent should guide national legislation and policy in this

area. These fundamental principles are embedded in various international

human rights instruments and form the backbone of child protection efforts

globally.

168. As Prof. Rangita De Silva-De Alwis argues in her report, Child Marriage and

the Law – Legislative Reform Initiative Paper Series 255 child marriage must be

treated as a human rights issue to highlight its seriousness and prompt state

parties to amend their laws and policies accordingly. 256 She also emphasises

that framing child marriage within international treaties compels States to be

accountable for their inaction on this issue. If a treaty establishes a monitoring

body or a mechanism to address complaints, any non-compliant state party may

face public rulings against it. 257 We believe that such public scrutiny can

pressure the state to implement effective measures that protect children from

the harmful effects of early marriage.

VIII. Constitutional guarantees against child marriage

169. The right to free choice and autonomy, education and development of the

child with all their offshoots are firmly recognised in this Court’s jurisprudence

253 India ratified the Convention on the Elimination of All Forms of Discrimination against Women on July 9, 1993.

254 India ratified the Convention on the Rights of the Child in 1992. 255 Rangita De Silva De-Alwis, Child Marriage and the Law – Legislative Reform Initiative Paper Series (New York: Division of Policy and Planning, UNICEF, 2007), para 28. 256 Ibid, 6.

257 Ibid; See also Douglas, ‘The Significance of International Law’, 89-90.

Page 98 of 141 PART VIII

and the myriad legislations in India which we have traced above. The evolution

and progress of child rights in the international arena have simultaneously been

evolved and recognised in India.

170. The material deprivation of health, education, employment and life

opportunities wreaked by child marriage is an affront to cherished constitutional

principles of equality, liberty and free expression. Children who are thrown into

forced marriages are deprived of their right to development of the child. Three

quarters of a century after the commencement of the Constitution, child

marriage remains a present and continuous threat to our society, social

progress and individual liberty. The Constitution does not countenance such an

affront. We shall trace the gamut of rights accruing against child marriage from

the Constitution.

171. The right to life and liberty enshrined in Article 21 of the Constitution 258 is

violated by the commission of child marriage. All children married as minors are

denied their right to choice and autonomy, right to education, right to sexuality

and the right to development of the child. Girls who are married as children are

denied their right to health. First, we shall analyze the right to choice, autonomy

and sexuality, then we shall explore the right to health. We shall thereafter trace

the right to childhood which includes the right to education and development.

258 Article 21, The Constitution of India.

Page 99 of 141 PART VIII

A. Right to self-determination: choice, autonomy and sexuality of children

172. Life’s meaning for any person is animated by their dignity, the ability to make

free choices, the autonomy to have them translated into reality and to plan the

peaks and troughs of life in good health. The journey a person travels from birth

to death is made meaningful and enjoyable by the realization of these rights

which are guaranteed under Article 21.

173. Child marriage deprives children of their agency, autonomy and right to fully

develop and enjoy their childhood. The right to free choice and autonomy in

marriage encompasses three fundamental rights: the right to free and informed

consent, the right against gender based violence, and the right to sexual

autonomy. These interconnected rights form the foundation for ensuring that

marriage is a consensual partnership rather than a coercive arrangement,

particularly when addressing the issue of child marriage.

174. Girls who are married off early are not only denied their childhood but are

also forced into social isolation on account of being cut off from their natal

family, friends and other support systems. They are left to the mercies of their

marital home and in-laws and denied their innocence which is native to a

meaningful childhood experience. Boys who are married early are forced to take

up more responsibilities and are pressured to play the role of a provider to the

family, earlier in life. Patriarchy requires members of a marital union to play

specific roles. It forces men to play the public role in a marriage and fend for the

family by being responsible for its economic and occupational development.

Both sexes are adversely affected by forced and early marriage.

Page 100 of 141 PART VIII

175. In India, marriage has traditionally been a religious ceremony organised by

the families of the bride and groom. The union is looked at as an integration of

the two families and the object of facilitating an organically compatible

relationship between the bride and the groom is inconsequential. The mandate

to recreate a patriarchal family structure is tied to social norms and

expectations. One of the primary manifestations of this is the control over

sexuality. While social norms rooted in a patriarchal mindset seek to control the

sexuality of all persons, its nexus with child marriage is undeniable.

176. Patriarchy offends the most basic rights of people by creating a hierarchy-

based order of subjugation and static power distribution in society. When an

institution of patriarchy operates, it never denies rights in a unidimensional way.

The frontal assault of patriarchal institutions is in, all at once, denying any

deviance and valuing some over others. In the instance of child marriage, the

right to sexuality of a person is systematically dismantled. The assault starts

with the sexualisation of the child at a tender age. As we have stated above,

marriage is an institution with legal standing in which sexual conduct is

legitimised and promoted by the State and society. Marrying in childhood has

the effect of objectifying the child. The practice of child marriage imposes

mature burdens on children who are not physically or mentally prepared to

comprehend the significance of marriage. When women are forced into

marriages to protect their ‘chastity’ and ‘virginity’ she is denied her right to

sexuality, bodily autonomy and the freedom to make choices for herself as she

sees fit.

Page 101 of 141 PART VIII

177. The minor is then boxed with the expectation of compulsory heterosexuality.

The ability of a person to experience sexual desire organically and to navigate

their choice in intimacy is effaced at the altar of tradition and social norm. At an

age which must be instructed by the ability to make mistakes and learn from life

experiences, children are stunted and forcibly fit into boxes. The multi-

dimensional assault of child marriage is therefore not only oppressive to

heterosexual girls and boys but also to all gender and sexual minorities.

Choices in matters of sexuality are integral to human desire. Our Constitution

recognises the right a person has over all aspects of their sexuality. 259 The

control of the sexuality of a girl child from orthodox moral virtues restricts her

ability to experience life in its fullest dimension. Sexuality is not only the

orientation a person may have in matters of romance and intimacy but also the

ability to navigate the desires of a person regardless of their choice of partner

or the option not to have a partner. Men and women alike are victimised by

compulsory heterosexuality. In child marriage, their limited agency within

heteropatriarchy is also taken away in infancy.

178. Upon marriage, a girl is expected to bear children and prove her fertility.

Decisions of reproduction are withdrawn from the girl and placed in the hands

of the family. The right to choice and autonomy of a woman who is married as

a child is violated by the system of child marriage. When minor girls are forced

to make conjugal relations, they experience post-traumatic stress and

depression emanating from sexual abuse by an elder partner.260 Child marriage

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; Joseph Shine v. Union of India, (2019) 3 SCC 39. 259 260 NCPCR (2017). A Statistical Analysis of Child Marriage in India, Based on Census, 2011. Young Lives and National Commission for Protection of Child Rights.

Page 102 of 141 PART VIII

leads to irreversible physical and psychological damage in girls. Her choice is

eviscerated in matters of selection of partner, time of marriage, reproductive

freedom and sexuality. Article 21 protects these rights. 261

179. In X v. Principal Secretary,262 a three-Judge Bench of this Court speaking

through one of us (DY Chandrachud, CJ) held that the right to choice and

autonomy includes the right to reproductive freedom. Elucidating on the

contours of this right, the Court held as follows:

“101. The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health. Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.”

180. This Court has also articulated the right to self-determination in National

Legal Services Authority v. Union of India. 263 Choice and autonomy are the

vocabulary in which self-determination is exercised. This court held that the right

to self-determination which is protected under Article 21 of the Constitution

includes the right of a person to determine their gender. The meaningful realisation

of this right assumes that the underlying conditions in the society are feasible for

its free exercise. This Court in NALSA (supra) has held that the right to self-

261 Shafin Jahan v. Ashokan KM, (2018) 10 SCC 1; X v. Principal Secretary, (2023) 9 SCC 433. 262 (2023) 9 SCC 433.

263 (2014) 5 SCC 438.

Page 103 of 141 PART VIII

determination is an integral part of personal autonomy and self-expression and

falls within the realm of personal liberty guaranteed under Article 21 of the

Constitution of India.

181. A nine-Judge Bench of this Court in KS Puttaswamy (Privacy-9J) v. Union

of India, 264 held that the fundamental right to privacy connotes the right to

spatial control, decisional autonomy, and information control. This Court held

that privacy is an essential aspect of dignity and protects the ability to make

choices for oneself. This Court has conclusively held that personal aspects of

life, including family, marriage, procreation and sexual orientation are intrinsic

to the dignity of an individual and enjoys protection under Article 21. From this

emerges the ability of a person to retain autonomy of their body and mind.

182. The Court held that liberty enables the individual to have a choice of

preferences on various facets of life including what and how one will eat, the way

one will dress, the faith one will espouse and a myriad other matters on which

autonomy and self-determination require a choice to be made within the privacy of

the mind. In Anuj Garg v. Hotel Association of India, 265 a three-Judge Bench

of this court held that the right to self-determination is an integral offshoot of

gender justice discourse. Justice SB Sinha speaking for the Court held that the

law and its enforcement strategies must reflect the right of women to freedom.

183. Despite the enactment of the PCMA, the abysmal number of prosecutions

and the continued existence of the practice violates the essence of this Court’s

holding. These rights and values are equally iterated in international law to

which India owes an obligation.

264 (2017) 10 SCC 1 at 298.

265 (2008) 3 SCC 1.

Page 104 of 141 PART VIII

B. Right to health

184. The right to reproductive freedom which we have traced above is part of the

constellation of rights in which the right to the health of a person also finds its

place. Article 21 of the Constitution guarantees the right to life and personal

liberty. Neither of these elements could be completely fulfilled without the ability

of individuals to lead a healthy life. Our Constitution recognises the right to

health as an inalienable aspect of the right to life and personal liberty under

Article 21. 266 Women who are married young are forced to bear children earlier

in life. They are likely to have their first childbirth before the age of eighteen and

are likely to conceive more than once within twenty-four months. The health

penalty imposed on women in child marriages is writ large in the complications

arising from adolescent pregnancies. Teenage pregnancy leads to health

complications such as fistula, pregnancy complications and death during

childbirth. Early childbirth also leads to the deterioration of maternal mortality

and morbidity.

185. The maternal morbidity is associated with adolescent fertility – typical to

child marriage. It is marked by common negative health outcomes such as

anaemia, high blood pressure, toxaemia, delayed or obstructed labour,

complications in pregnancy and weight loss during lactation. 267 The adverse

health effects of early marriage and pregnancy have dented the nutritional

status of adolescent girls in India. These ill health outcomes haunt the woman

266 Pt. Parmanand Katara v. Union of India, (1989) 4 SCC 286; Paschim Banga Khet Majoor Samiti v. State of West Bengal, (1996) 4 SCC 37.

267 Jaya Sagade. Child Marriage in India: Socio-legal and human Rights Dimensions. Oxford University Press, 2nd ed. (2012) 17.

Page 105 of 141 PART VIII

throughout her life cause severe impediments in navigating the daily trifles and

occasions of life.

186. Studies have shown that women married as children are more likely to be

sterilized earlier in life. The sterilization is associated with families getting the

desired number of children earlier in the marital life of the couple. Sterilization

of women in child marriage is indicative of loss of control of a woman over her

own reproductive choices. This also leads to more unprotected sex which may

expose women to risks of contracting sexually transmitted diseases like HIV.

187. In Independent Thought v. Union of India, 268 this Court struck down the

marital exception to rape in Section 375 IPC as it relates to underage wives.

The Court had the opportunity to delve into the effects of child marriage and its

interposition with the right to health. Justice Deepak Gupta in his opinion has

traced the right to health in the context of child marriage as follows:

“179. There can be no dispute that every citizen of this country has the right to get good healthcare. Every citizen can expect that the State shall make best endeavours for ensuring that the health of the citizen is not adversely affected. By now it is well settled by a catena of judgments of this Court that the “right to life” envisaged in Article 21 of the Constitution of India is not merely a right to live an animal existence. This Court has repeatedly held that right to life means a right to live with human dignity. Life should be meaningful and worth living. Life has many shades. Good health is the raison d'être of a good life. Without good health there cannot be a good life. In the case of a minor girl child good health would mean her right to develop as a healthy woman. This not only requires good physical health but also good mental health. The girl child must be encouraged to bloom into a healthy

268 (2017) 10 SCC 800.

Page 106 of 141 PART VIII

woman. The girl child must not be deprived of her right of choice. ....”

(emphasis supplied)

188. Child marriage inflicts tangible and lifelong physical and mental injuries to

its members. The right to health is made illusory by all accounts within such an

institution. The effect of child marriage denies women their health which is vital

to lead a dignified life.

C. Right to childhood: education and development

189. Childhood represents the best of what human life has to offer. A good

childhood is marked by limitless imagination and the ability to dream big. The

audacity to envision futures filled with success, happiness, divergence and

enjoyment occurs naturally to all – but is manifested most authentically in

childhood. The right to childhood is the right to be able to develop the

experiences of childhood into tangible life skills and intellectual pursuits. It is

marked by the expectation of the child that they are not on their own but are

entitled to the supportive network of their parents, siblings, family, friends and

the entire society. As the saying goes – it takes a village to raise a child. The

foremost method by which society commits to developing a child is by imparting

education. Institutions of learning are centres for society to channel knowledge

and experience and make them available to children. Education allows its

recipients to benefit from the best of human advances and claim a degree of

ownership in its fruits.

Page 107 of 141 PART VIII

190. Education allows a person to develop and articulate their thoughts and learn

the language of global engagement. It is a call for greater emancipation of the

mind. Education breathes life into intellect, dimension into perspective and

openness in minds. It opens doors to employment opportunities and enables

people to stand on their own feet in professional and personal pursuits of life.

The detrimental effect of not being educated affects girls most starkly since they

are already vulnerable to agents of oppression on account of their gender.

Marriage for most women in patriarchal societies is an announcement of

educational conclusion.

191. It is uncommon for women to continue education after marriage without the

express approval and wish of the in-laws and husband. The imposition of a

marital family on the education of women may be an experience common to all

women. But when the woman is married as a child, her education is arrested in

place during a pivotal period of brain development. The minority of a woman’s

age at the time of her marriage has a heightened impact on her education. The

right to primary education is a fundamental right expressly enshrined under

Article 21-A.

192. However, the right to education under Article 21 holds broader significance.

The right to information about routine ways to make life meaningful and be

educated on the adverse effects of child marriage falls under Article 21.

Children are entitled to be aware of their rights and the ill effects that marriage

unleashes on them. The entitlement of the child flows from the right to

education. Education cannot be restricted to pedantic and bookish classroom

learning. The State certainly has an obligation to provide free and compulsory

Page 108 of 141 PART VIII

education to all between the ages of six and fourteen. The mandatory minimum

prescribed by Article 21-A, however, cannot restrict the right of children to be

informed of significant and life altering dangers.

193. In a litany of judgments, this Court has firmly grounded the right to education

into our constitutional jurisprudence.269 While dealing with a PIL against

physically and mentally challenged children being kept in jails, this Court in

Sheela Barse II v. Union of India 270 has recognised that it is the duty of the

State to ensure the full development of a child’s personality. The articulation of

the right to development of a child puts a positive obligation on the State to

create conditions feasible and resources necessary for the full development of

children. In addition to the rights tracible to Part III of the Constitution, the

development of child is also a part of the Directive Principles of State Policy. 271

Article 39 stipulates certain principles of policy to be followed by the State.

Clause (f) of Article 39 reads as follows:

“(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”

194. The duty of the State corresponds to the right to development of a child

which is tracible to Articles 14, 19(1)(a), 21 and 15. The right comprehends the

ability of a child to exercise free speech, express authenticity and live a life of

liberty and dignity. It falls on the State to ensure that children are informed of

269 Unni Krishnan JP v. State of Andhra Pradesh, (1993) 1 SCC 645; Society For Unaided Private Schools Of Rajasthan v. Union Of India (2012) 6 SCC 1; Avinash Mehrotra v. Union Of India, 2009 INSC 498; Bachpan Bachao Andolan v. Union of India, (2011) 5 SCC 1; Maharishi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P., (2013) 15 SCC 677; Sampurna Behura v. Union of India, (2018) 4 SCC 433. 270 (1983) AIR 378.

271 ‘DPSP’

Page 109 of 141 PART VIII

ways in which their life is likely to interact with society and the cautions to bear

in the journey they chart out in life so that they may enjoy and exercise their

rights under Articles 14, 15, 19(1)(a) and 21.

195. Child marriage is one such threat. Sexual conduct within this relation, or for

that matter outside marriage, is another aspect of education and information.

Sex education becomes imperative for children to process experiences which

they are to inevitably encounter. In Just Rights for Children Alliance v. S

Harish,272 one of us (J B Pardiwala, J) has lucidly reflected on the importance

of sex education. The Court has opined that:

“238. In India, the misconceptions about sex education are widespread and contribute to its limited implementation and effectiveness. Many people, including parents and educators, hold conservative views that discussing sex is inappropriate, immoral, or embarrassing. This societal stigma creates a reluctance to talk openly about sexual health, leading to a significant knowledge gap among adolescents.

239. One prevalent misconception is that sex education encourages promiscuity and irresponsible behaviour among youth. Critics often argue that providing information about sexual health and contraception will lead to increased sexual activity among teenagers. However, research has shown that comprehensive sex education actually delays the onset of sexual activity and promotes safer practices among those who are sexually active. [Padminin Iyer & Peter Aggleton, Seventy years of sex education - A Critical Review, 74(1) HEALTH EDUC. J. 3 (2015).]

240. Another common belief is that sex education is a Western concept that does not align with traditional Indian values. This view has led to resistance from various state governments, resulting in bans on sex education in schools in some states. This type of opposition hinders the implementation of comprehensive and effective sexual health programs, leaving many adolescents without accurate

272 2024 INSC 716.

Page 110 of 141 PART VIII

information. This is what causes teenagers and young adults to turn to the internet, where they have access to unmonitored and unfiltered information, which is often misleading and can plant the seed for unhealthy sexual behaviours.

241. Additionally, there is a misconception that sex education only covers biological aspects of reproduction. Effective sex education encompasses a wide range of topics, including consent, healthy relationships, gender equality, and respect for diversity. Addressing these topics is crucial for reducing sexual violence and promoting gender equity.”

196. In the context of child marriage, we have demonstrated the heightened risk

of health complications to arise out of adolescent sex and childbearing. While

girls married as children have to bear the consequences of this, they are not

the only party to the sexual relation which causes negative health outcomes.

Boys married at young age equally feel pressures associated with sexual

performance. Often, the only resource available to them is their peer group. The

performance of sexual activity is an avenue for men to exhibit their masculinity.

Because of their tender mind and patriarchal notions of masculinity and sexual

dominance, they are likely to fall into egregious misinformation by their peers

and commit violence on their child brides. The issue of approaching boys in

child marriage with care, compassion and affection is unfortunately lost in some

mainstream discourse on child marriage. While girls are undoubtedly affected

by child marriage disproportionately, we ought to also account for the tender

minds of men who are forced into marriages as children.

197. The right to childhood belongs to all sexes. Education- primary, sexual and

life enhancing – is integral to the right to childhood. Realisation of this right is

crucial in dealing with the evils of child marriage. Abuses of patriarchy are learnt

Page 111 of 141 PART VIII

behaviours. What is learnt can be unlearned or better yet, disabused early on.

Education in all aspects allows for the debunking of harmful life choices and

conducts which children may adopt in the absence of better guidance.

D. Reiterating the States’ obligations towards combatting child marriage

198. Under IHRL, the State has a concrete, enforceable obligation to prevent and

eliminate child marriage by ensuring that laws, policies, and social services

align with international standards such as those in the CRC and the CEDAW.

The state must establish and enforce a legal framework that explicitly prohibits

child marriage, accompanied by robust mechanisms for implementation and

redress.

199. States also have an obligation to monitor and enforce compliance with these

laws and to work closely with civil society organizations to implement effective

interventions. The State's role is not limited to merely punishing offenders but

extends to creating an enabling environment where children can exercise their

rights freely. This includes the responsibility to not only to legislate against child

marriage but also to address the underlying socio-economic factors—poverty,

lack of education, and gender discrimination—that perpetuate this practice.

200. The Directive Principles of State Policy in Part IV of the Constitution lay

down the fundamental principles in the governance of the country and press

upon the State to apply them while making laws. Article 38(2) of the

Constitution 273 requires the state to promote the welfare of people and eliminate

inequalities in opportunities: It states that:

273

Article 38(2), the Constitution of India 1950.

Page 112 of 141 PART VIII

“38. State to secure a social order for the promotion of welfare of the people –

…

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”

201. This Article mandates the State to actively reduce inequalities and promote

welfare, which is essential in addressing child marriage—a practice that

disproportionately affects children from economically and socially

disadvantaged backgrounds. By targeting inequalities in income, status, and

opportunities, Article 38(2) supports creating conditions where vulnerable

children have better access to education, healthcare, and social support. This,

in turn, reduces the pressures that often lead to early marriage, such as

economic dependency and limited future prospects, and enables children to

pursue a life free from the constraints imposed by early marital commitments.

202. This Court has, in several landmark judgments, reinforced the State’s

positive obligation to protect children’s rights. In Sheela Barse II (supra) this

court dealt with abandoned or destitute children lodged in various jails across

the country for ‘safe custody.’ The Court noted that the National Policy for the

Welfare of Children contained the following preamble:

“The nation’s children are a supremely important asset. Their nurture and solicitude are our responsibility. Children’s programmes should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society. Equal opportunities for development of all children during the

Page 113 of 141 PART VIII

period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice.” (emphasis supplied)

203. This Court observed that if a child is a “national asset” as per the National

Policy, the State bears the duty to nurture and ensure their full development,

underscoring the expectation that children not be subjected to custodial

detention. Here, the principles of care and protection are directly relevant to

child marriage, as the practice obstructs the full and healthy development of

minors by imposing on them responsibilities and roles they are neither

physically nor emotionally prepared to undertake. Such an arrangement

undermines their potential and violates their rights to education, health, and

personal development, reinforcing cycles of poverty and inequality.

204. In this context, the principle of parens patriae—where the State assumes a

protective role akin to that of a guardian—is particularly relevant. The State’s

intervention in preventing child marriage aligns with its duty to act in the best

interest of children, ensuring their safety, development, and freedom from

practices that harm their physical, emotional, and educational prospects. This

principle has been repeatedly upheld by the judiciary as essential in upholding

child rights and creating a supportive environment that upholds their well-being

and growth into empowered, healthy citizens.

205. Similarly, in Society for Unaided Private Schools v. Union of India 274 the

Court addressed the constitutionality of Section 12 of the Right of Children to

Free and Compulsory Education Act 2009. This provision, which mandates a

274 (2012) 6 SCC 1.

Page 114 of 141 PART VIII

25% reservation in schools for children from disadvantaged backgrounds, was

challenged on the grounds that it violated Articles 19(1)(g) and 30 of those who

had established schools in the private sector. The Court upheld the

constitutionality of this provision, finding the following:

“222. The provisions referred to above and other provisions of international conventions indicate that the rights have been guaranteed to the children and those rights carry corresponding State obligations to respect, protect and fulfil the realisation of children's rights. The obligation to protect implies the horizontal right which casts an obligation on the State to see that it is not violated by non-State actors. For non-State actors to respect children's rights casts a negative duty of non-violation to protect children's rights and a positive duty on them to prevent the violation of children's rights by others, and also to fulfill children's rights and take measures for progressive improvement. In other words, in the spheres of non-State activity there shall be no violation of children's rights.” …

224. The primary responsibility for children's rights, therefore, lies with the State and the State has to respect, protect and fulfil children's rights and has also got a duty to regulate the private institutions that care for children, to protect children from violence or abuse, to protect children from economic exploitation, hazardous work and to ensure human treatment of children. Non-State actors exercising the State functions like establishing and running private educational institutions are also expected to respect and protect the rights of the child, but they are, not expected to surrender their rights constitutionally guaranteed.” (emphasis supplied)

206. These judgments affirm that the State must regulate private as well as non-

State actors in ensuring children’s welfare and that the State holds primary

responsibility for protecting children’s rights. Applied to child marriage, these

principles reiterate that the State must enact and enforce laws that prohibit child

Page 115 of 141 PART IX

marriage while ensuring that social, educational, and economic protections are

in place to prevent the practice.

IX. Way forward

207. In light of the foregoing analyses, we seek to formulate specific guidelines

for achieving the elimination of child marriage while bearing in mind the delicate

socio-economic interplay. The Union submits that the PCMA focuses on two

key pillars: (a) raising awareness and (b) prosecution. Despite progress in

awareness campaigns, there is still a pressing need to enhance accountability

mechanisms, ensure mandatory reporting, and rehabilitate minors affected by

child marriages. Further attention is required to make the legal framework more

effective by addressing loopholes and ensuring swift action against offenders,

particularly in areas with high child marriage prevalence.

208. Addressing child marriage requires an intersectional approach that

acknowledges the overlapping vulnerabilities experienced by children,

especially girls from marginalized communities. Intersectionality involves

considering factors like gender, caste, socioeconomic status, and geography,

which often increase the risks of early marriage. Preventive strategies should

therefore be tailored to the unique needs of various communities and focus on

addressing the root causes of child marriage, such as poverty, gender

inequality, lack of education, and entrenched cultural practices.

209. The PCMA as a social legislation will only succeed through the collective

efforts of all stakeholders to address the issue within a broader social

framework which emphasises the need for multi-sectoral coordination. This

Page 116 of 141 PART IX

necessitates the enhancement of reporting mechanisms, expansion of public

awareness campaigns, and investment in the training and capacity-building of

law enforcement officers and related actors. It is also crucial to regularly monitor

the implementation of the Act, conduct evaluations to identify gaps, and

establish feedback mechanisms to continually refine and improve responses to

child marriage. As we issue these directions, we emphasize the need for more

comprehensive approaches and community-driven strategies to ensure the

complete eradication of child marriages.

210. We frame the following guidelines for the effective and useful

implementation of the PCMA. The orientation of these guidelines is to prioritise

prevention before protection and protection before penalisation. We are

cognizant of the impact that criminalisation has on families and communities.

To ensure effective use of penal provisions in the PCMA, it is imperative that

there is widespread awareness and education about child marriage and the

legal consequences of its commission. We therefore direct that the following

guidelines be interpreted to expand effective implementation of the preventive

measures under PCMA analysed in Part V(A)(iii) of this judgment.

211. We must not be understood to discourage prosecution of those who commit

illegal acts. However, the aim of the law enforcement machinery must not be

solely focused on increasing prosecutions without making the best efforts to

prevent and prohibit child marriage. The focus on penalisation reflects a harms-

based approach which waits for a harm to occur before taking any steps. This

approach has proven to be ineffective at bringing about social change. We

therefore direct as follows:

Page 117 of 141

PART IX

A. Legal Enforcement

1. Appointment and accountability of CMPO

1.1. State Governments and Union Territories (UTs) must appoint officers solely

responsible for discharging the functions of CMPO at the district level. These

officers should not be burdened with additional duties that could impede their

focus on preventing child marriage;

1.2. If a CMPO believes that they lack the necessary resources to safely and

comprehensively fulfil their functions, they must submit a request to the

relevant State Ministry of Women and Child Development. The Ministry shall

conduct an assessment and address the resource needs within three months

of the date on which the request was made;

1.3. To enable personal accountability and ensure immediate preventive measures

are taken against any planned solemnization of child marriages - each State

and UT is directed to upload quarterly reports from CMPOs on their official

websites. These reports should detail the steps taken to prevent child

marriages and the outcomes of investigations;

1.4. The Ministry of Women and Child Development and Ministry of Home in each

State/UT shall conduct quarterly performance reviews of CMPOs and law

enforcement agencies to assess:

1.4.1. The effectiveness of child marriage prevention initiatives;

1.4.2. Response times and outcomes of reported case;

Page 118 of 141 PART IX

1.4.3. The level of cooperation and communication between CMPOs and

local law enforcement agencies;

1.4.4. The engagement with communities and stakeholders in prevention

efforts;

1.4.5. The status of CMPOs regarding deployment to additional duties,

including the reasons for such assignments, to ensure that their primary

focus on child marriage prevention is not compromised; and

1.4.6. Recommendations for improvements based on the assessments,

including identifying areas requiring additional support or resources.

1.5. The Ministry of Women and Child Development is directed to execute

mandatory training refreshers for CMPOs every six months. These refreshers

will ensure that all personnel are updated on:

1.5.1. Legal changes relevant to child marriage prevention;

1.5.2. Best practices and effective strategies for combating child marriage;

1.5.3. Community engagement techniques to foster collaboration with local

stakeholders;

1.5.4. Advocacy skills to effectively promote child rights and raise

awareness about the negative impacts of child marriage;

1.5.5. Cultural sensitivity training to address the social factors contributing

to child marriage, ensuring a nuanced understanding of local contexts and

practices; and

Page 119 of 141 PART IX

1.5.6. Evaluation and reporting mechanisms to assess the effectiveness of

their initiatives and adjust strategies accordingly.

2. District-Level Responsibility for Prevention of Child Marriages

2.1. In addition to the mandate of the CMPO under Section 16(3)(a) – the Collectors

and Superintendents of Police in each district across India shall also be

responsible for actively preventing child marriages within their districts. They

shall have the authority and responsibility to prosecute all individuals who

facilitate or solemnize child marriages, including those who knowingly assist,

promote, or bless such marriages, even if reported in public events or media;

2.2. The CMPO, the Collectors and Superintendents of Police in each district shall

inform the State Government about any impediments they encounter in the

discharge of their functions, including but not limited to, social boycotts; and

2.3. Specific emphasis must be placed on preventing mass marriages, often

conducted in public, where the participation of government or law enforcement

officials could inadvertently lend legitimacy to child marriage ceremonies. Any

failure by district authorities to act in accordance with this mandate will warrant

immediate administrative action and disciplinary proceedings against the

responsible officials.

3. Establishment of a Specialized Police Unit

3.1. Recognizing the sensitivity and unique aspects of child marriage cases, a

specialized police unit is deemed essential. The State Ministries of Home

Affairs shall consider the viability of integrating the Special Juvenile Police Unit

Page 120 of 141 PART IX

into the child marriage prevention framework. The SJPU, already trained in

handling juvenile and sensitive cases, shall be deployed to manage cases of

child marriage;

3.2. The Ministry should evaluate the effectiveness of this integration and provide

necessary resources and support to the SJPU for optimal performance in

addressing child marriage issues;

3.3. The SJPU, supported by trained personnel and resources, will ensure that child

marriage cases are handled with appropriate sensitivity and urgency. The unit

shall work in coordination with CMPOs and district authorities to ensure swift

preventive action and enforce legal accountability; and

3.4. The Ministry of Women and Child Development is directed to consider the

viability and prescribe a format for the SJPUs to biannually report the following:

3.4.1. The outcomes of legal actions taken against perpetrators of child

marriage, including any convictions or pending cases;

3.4.2. The number of awareness programs conducted and the community

engagement efforts made to prevent child marriages;

3.4.3. The status of collaboration with local law enforcement and child

protection agencies in addressing child marriage; and

3.4.4. Any challenges faced in the reporting period and recommendations

for improving child marriage prevention efforts.

Page 121 of 141 PART IX

4. Establishment of a Special Child Marriage Prohibition Unit

4.1. The State Governments and UTs shall constitute a State Special Child

Marriage Prohibition Unit and where there are more than one CMPOs in any

district, a District level Special Child Marriage Prohibition Unit;

4.2. The Unit shall comprise of all the CMPOs of the State or the District, as the

case may be, and shall include five social workers having experience of

working against child marriage or on child rights. At least two of such social

workers shall be women. All the CMPOs of the Unit shall be provided special

training on dealing with child marriages;

4.3. The Units shall tailor courses and resources with the help of professionals

dealing with the mental health concerns of the CMPOs. The Unit shall also

provide forums for CMPOs to raise any difficulties or grievances they encounter

in discharge of their functions, including but not limited to, any difficulty relating

to social ostracization for preventing child marriages; and

4.4. The Unit shall act as a forum of sharing best practices, inviting trained

professionals to dispense knowledge and collectivise and redress grievances.

B. Judicial Measures

1. Empowering Magistrates to Take Suo Moto Action and Issue Preventive

Injunctions

1.1. All Magistrates vested with authority under Section 13 of the Prohibition of

Child Marriage Act, 2006, are directed to take proactive measures, including

Page 122 of 141 PART IX

issuing suo motu injunctions to prevent the solemnization of child

marriages; and

1.2. Magistrates are encouraged to particularly focus on "auspicious days"

known for mass weddings, when the occurrence of child marriages is

notably high. Upon receiving credible information or even upon suspicion,

Magistrates should use their judicial powers to halt such marriages and

ensure child protection.

2. Exploration of Special Fast-Track Courts for Child Marriage Cases

2.1. The Union Government, in coordination with State Governments, is directed

to assess the feasibility of establishing special fast-track courts exclusively

to handle cases under the PCMA. These courts will expedite case

proceedings, thereby preventing prolonged delays that often lead to

additional harm for the affected children; and

2.2. A status report on the establishment, resource allocation, and potential

effectiveness of these fast-track courts shall be submitted to this Court

within a year from now onwards.

3. Mandatory Action Against Neglectful Public Servants

3.1. It is directed that strict disciplinary and legal action be taken against any

public servant found to be in deliberate neglect of duty concerning child

marriage cases within their jurisdiction. As stipulated under Section 199(C)

of the Bharatiya Nagarik Suraksha Sanhita (BNS), 2023, public officials who

fail to act in child marriage cases, particularly those with knowledge of

Page 123 of 141 PART IX

imminent marriages, shall be subject to stringent punishment. This direction

is aimed at reinforcing accountability among public officials and ensuring

that child marriage cases receive immediate and appropriate action at all

administrative and enforcement levels.

C. Community Involvement

1. Annual Action Plans and Community-Centric Capacity Building

1.1. Each State and UTs is directed to develop an Annual Action Plan to prevent

child marriages, incorporating Key Performance Indicators (KPIs) that

reflect local cultural and social contexts. This plan should include

measurable goals tailored to address community-specific beliefs and

practices related to child marriage; and

1.2. States and UTs shall incorporate regular orientation programs, seminars,

and workshops in their annual schedules aimed at building the capacity of

all stakeholders. These initiatives should target CMPOs, Gram Panchayat

or Municipality office holders, government officials, school principals and

teachers, representatives of non-governmental organizations, local

representatives, and Para Legal Volunteers (PLVs), fostering a

collaborative approach to child marriage prevention.

2. Adoption of the Child Marriage Free Village Initiative

2.1. Inspired by the "Open Defecation Free Village" model under the Swachh

Bharat Mission, a “Child Marriage Free Village” initiative should be

Page 124 of 141 PART IX

launched, encouraging Panchayats and community leaders to play an

active role in preventing and reporting child marriages; and

2.2. This initiative will mobilize local communities to collectively discourage child

marriages, with the involvement of Panchayats in monitoring and promoting

"Child Marriage Free" certifications for villages and Gram Panchayats. This

designation should be publicly celebrated to reinforce a culture where the

rights and well-being of children are paramount.

D. Awareness Campaigns

1. Awareness Campaigns Led by CMPOs in Schools, Religious Institutions,

and Panchayats

1.1. CMPOs are directed to conduct regular, structured awareness campaigns

across schools, religious institutions, and Panchayats. These campaigns

must include impactful hoardings and slogans in local languages that

highlight the legal penalties for child marriage, health risks associated with

early and forced marriages, and their socio-economic consequences; and

1.2. Schools and local institutions must conduct monthly informational sessions,

leveraging creative methods like plays, storytelling, and interactive sessions

to engage young people on the topic of child marriage prevention,

emphasizing gender equality, reproductive rights, and personal agency.

Page 125 of 141 PART IX

2. Comprehensive Sexuality and Rights Education

2.1. All States and Union Territories are directed to integrate comprehensive

sexuality education 275 into school curricula in line with the framework

prescribed by the World Health Organisation 276 and leading thoughts in the

field of CSE. This education must include clear information on the legal

aspects of child marriage, gender equality, reproductive health rights, and

the impacts of child marriage on physical and mental well-being; and

2.2. Educational content should be tailored for age-appropriateness and be

culturally sensitive, with particular emphasis on empowering students with

knowledge of their legal rights, the importance of delaying marriage, and

understanding of sexual and reproductive health.

3. Educational Materials and Community Awareness Tools

3.1. Schools in regions where child marriage prevails must include information

on child marriage prevention within the curriculum, with a dedicated section

in textbooks that outlines legal protections, health risks, and preventive

measures. Visible posters or charts summarizing this information should be

displayed prominently in schools, Gram Panchayats, and public institutions;

and

275 ‘CSE’ 276 CSE is the imparting of accurate, age-appropriate information about sexuality and their sexual and reproductive health – which is critical for their health and survival; See World Health Organization, (2023), “What is Comprehensive Sexuality Education?”.

Page 126 of 141 PART IX

3.2. Schools must adhere to a reporting protocol whereby principals or teachers

are required to report potential cases, such as sudden drop out of a girl

child, to the appropriate authorities immediately.

4. Targeted Community Awareness Campaigns

4.1. Regular community-based campaigns are mandated, specifically targeting

parents, respected members of the community (including but not limited to

teachers, principals and local body leaders) and local influencers. CMPOs

are instructed to work with these groups to challenge entrenched social

norms, using community discussions, multimedia presentations, and

testimonials from child marriage survivors to shift perceptions; and

4.2. Community-focused initiatives should also include public forums where the

adverse effects of child marriage are openly discussed, alongside the

benefits of educating young women.

5. Empowerment Programs for Girls and Young Women

5.1. All States and Union Territories are directed to implement mentorship and

leadership programs that encourage young girls to become active

participants in their communities. These programs should include

workshops on leadership skills, public speaking, and advocacy training,

enabling girls to become local ambassadors for change; and

5.2. Schools and local organizations should establish peer groups led by trained

mentors, where girls can safely discuss personal issues of home, family and

public ongoings which may potentially force a girl into child marriage.

Page 127 of 141 PART IX

6. Helpline Awareness and Reporting Mechanisms

6.1. Comprehensive awareness of helpline numbers such as Childline (1098)

and Women Helpline (181) should be included in all educational materials

and community campaigns. Schools, Panchayats, and local institutions are

required to display these numbers prominently and ensure that children and

adolescents are aware of how to seek help.

E. Training/Capacity Building

1. Training for Community Health Workers and Educators

1.1. All State and UTs will impart specialized training to Anganwadi Workers

(AWW), Auxiliary Nurse-Midwives (ANM), and Accredited Social Health

Activists (ASHA) to enhance their role in the prevention of child marriage

through active community engagement. This training should cover:

1.1.1. Identification of at-risk children and families, effective communication

strategies to engage communities, and understanding the legal

framework surrounding child marriage;

1.1.2. Workshops on the socio-economic impacts of child marriage on girls

and families, enabling them to effectively communicate these

consequences to community members; and

1.1.3. Effective ways and strategies to deal with crisis-management and

render immediate and long-term support to victims who may be in a

crisis associated to child marriage. This may include persons such as a

Page 128 of 141 PART IX

girl vulnerable to child marriage herself; a peer, sibling or other person

who fears that another person may be at risk of child marriage; or girls

who have witnessed early or forced marriages around them.

2. Training for Law Enforcement and Judicial Officers

2.1. Police officers, particularly those in the Special Juvenile Police Units

(SJPU), must undergo training focused on the legal aspects of the PCMA,

child rights, and sensitivity towards cases involving minors. This training

should include:

2.1.1. Protocols for handling child marriage cases, ensuring the protection

of victims, and understanding the psychological impact of child

marriage on children and those affected around them; and

2.1.2. Regular refresher courses on human rights and the ethical treatment

of victims in accordance with the Juvenile Justice (Care and Protection

of Children) Act.

3. Capacity Building for Teachers and School Administrators

3.1. Teachers and school administrators will be trained to recognize signs of

potential child marriage and engage with students regarding their rights and

the importance of education.

4. Empowerment of Local Leaders and Community Influencers

4.1. Training programs will be designed for local leaders, including members of

Panchayati Raj Institutions and community influencers, focusing on their

Page 129 of 141 PART IX

critical role in preventing child marriage. This training should cover

strategies to challenge and change harmful social norms and practices that

perpetuate child marriage within their communities.

5. Engagement with Non-Governmental Organizations (NGOs)

5.1. Collaborations with NGOs that focus on women's rights and child protection

will be established to train volunteers and staff on child marriage prevention.

State authorities including the CMPO and SJPU must proactively identify

and collaborate with NGOs on the practical and procedural difficulties in

preventing, prohibiting and prosecuting child marriages.

6. Training for Health Care Providers

6.1. Healthcare providers, including doctors and counsellors, will be trained to

address the specific health risks associated with child marriage. This

training will include:

6.1.1. Counselling techniques for young women and girls, focusing on

reproductive health rights and the health consequences of early

marriage; and

6.1.2. Awareness of available resources for girls at risk and the referral

processes for victims seeking help.

Page 130 of 141 PART IX

F. Educational and Social Support

1. Educational Incentives and Scholarships

1.1. The Ministry of Women and Child Development is directed to consider the

viability of implementing comprehensive educational incentive programs

specifically targeted at girls at risk of child marriage. This includes:

1.1.1. Providing scholarships to girls for secondary and higher education to

encourage families to prioritize education over early marriage;

1.1.2. Offering stipends or financial support for families with daughters who

remain in school beyond the age of fifteen, as a tangible incentive for

delaying marriage; and

1.1.3. Creating mentorship programs that connect at-risk girls with role

models who have successfully pursued education and career

opportunities.

2. Social Welfare Programs

2.1. The Ministry of Women and Child Development will also consider

developing and implementing social welfare programs to assist families at

risk of engaging in child marriage, including:

2.1.1. Conditional cash transfer programs that provide financial support to

families in exchange for commitments to keep their daughters in school

and delay marriage until legal adulthood;

Page 131 of 141 PART IX

2.1.2. Access to vocational training and skill development programs for

families, enabling them to improve their economic status and lessen

reliance on marrying off daughters for financial relief; and

2.1.3. Support services for families facing economic hardships, such as food

assistance, healthcare services, and access to microfinance

opportunities to promote sustainable livelihoods.

3. Convergence and Continuity of Services

3.1. The Chief Secretaries of all States/UTs shall designate an appropriate

authority who shall ensure the convergence of services across various

government departments and agencies to create a cohesive support

system for vulnerable and at-risk communities. This includes:

3.1.1. Regular inter-departmental meetings to coordinate efforts and

resources among education, health, social welfare, and law

enforcement sectors to address the multifaceted nature of child

marriage; and

3.1.2. Establishing community-based resource centres that provide

information and support related to education, legal rights, and social

services to families at risk of child marriage.

Page 132 of 141 PART IX

G. Monitoring and Accountability

1. Development of Standard Operating Procedures

1.1. The National Legal Services Authority 277 is directed to formulate a Standard

Operating Procedure278 that provides comprehensive guidelines for legal-

support services, and long-term rehabilitation plans related to the

prevention, protection, and rehabilitation of victims of child marriage for

lawyers and law-enforcement officers. NALSA is further directed to dispatch

this SOP to all States and District Legal Services Authority where it may be

used in assisting aggrieved victims;

1.2. The Ministry of Women and Child Development, in consultation with State

Child Protection Societies 279 and local government bodies, shall draft SOPs

focused on maintaining detailed registers. These registers will document:

1.2.1. The number of awareness programs and capacity-building initiatives

conducted;

1.2.2. The number of child marriages prevented and reported; and

1.2.3. Follow-up actions taken in each case.

1.3. The SOPs must clearly define the duties and responsibilities of CPMOs,

and other stakeholders involved in community protection efforts, such as

police authorities, Sarpanchs, village Pradhans, school teachers, AWWs,

277 “NALSA” 278 “SOP” 279 “SCPS”

Page 133 of 141 PART IX

and ASHA. Special emphasis shall be placed on these responsibilities

during critical periods and other wedding seasons and

1.4. The National Commission for Protection of Child Rights is directed to

expedite the process of drafting an SOP to establish accountability for the

non-reporting of child marriages, provide rehabilitation for minor survivors,

and initiate prosecution procedures.

2. Role of Panchayats and Local Leaders

2.1. All Panchayats, Sarpanchs, and local leaders must:

2.1.1. Complete a training program on child marriage prevention and

reporting within three months;

2.1.2. Report any suspected child marriages within 48 hours of awareness

to relevant authorities; and

2.1.3. Actively participate in community awareness programs to educate

families on the legal consequences of child marriage and promote

alternative practices to early marriage.

3. Individual Care Plans for At-Risk Girls

3.1. State authorities must develop and implement Individual Care Plans (ICP)

for at-risk girl children, ensuring compliance with Section 10 of the JJ Act,

which mandates individualized care and rehabilitation for children in need

of care and protection. It shall include:

Page 134 of 141

PART IX

3.1.1. Immediate access to educational resources tailored to the child's

needs;

3.1.2. Regular psychological support sessions, including counselling and

therapy, as necessary;

3.1.3. Establishment of peer support groups to help at-risk girls connect with

one another and share experiences;

3.1.4. Monitoring by Child Welfare Officers/District Child Protection Unit

(DCPU) should occur every month for the first year post-intervention to

ensure successful reintegration into education and community life; and

3.1.5. Follow-up assessments should be conducted every three months to

evaluate the effectiveness of the ICP, adjusting support services as

needed to address any emerging challenges faced by the child.

H. Technology-Driven Initiatives for Reporting Child Marriage

1. Creation of a Centralized Reporting Portal

1.1. The Ministry of Home Affairs, in collaboration with the Ministry of Women

and Child Development and the NALSA, shall establish a designated portal

for online reporting of child marriages. This portal will include features for

anonymous reporting, allowing victims and concerned citizens to easily

lodge complaints and access support services; and

1.2. The portal will serve as a centralized platform for collecting and analyzing

data on child marriage incidents, enabling targeted interventions. It will

Page 135 of 141 PART IX

enhance accessibility, transparency, and accountability by ensuring that all

reports are addressed promptly by enforcement agencies and CMPOs.

2. Leveraging Technology for Support Services

2.1. Each State and UT shall make all endeavours to disseminate information

against child marriage across all print, digital and social media – with a

focus on regions where child marriages are likely to occur in high numbers.

They shall also consider the viability of data analytics to identify high-risk

areas and patterns of child marriage, enabling swift interventions.

3. Technology-Driven Monitoring of Attendance

3.1. The Ministry for Women and Child Development, in coordination with the

relevant State Ministries, shall consider the viability of a technology-driven

monitoring system to track daily attendance for school-going girls up to the

12th grade, ensuring compliance with the privacy standards outlined in the

Supreme Court judgment in KS Puttaswamy (9J) (supra).

I. Funding and Resources

1. Dedicated Annual Budget Allocation

1.1. The relevant ministries of the Union Government are directed to

recommend the allocation of a dedicated yearly budget for each State

specifically aimed at preventing child marriage and supporting affected

individuals. This budget should encompass:

1.1.1. Community awareness programs;

Page 136 of 141 PART IX

1.1.2. Educational initiatives targeting at-risk populations;

1.1.3. Training programs for frontline workers, including CMPOs and local

law enforcement;

1.1.4. Rehabilitation services for victims, including counselling and

vocational training; and

1.1.5. Provisions for regular monitoring, home visits, and follow-up support

for victims to ensure their reintegration into society.

2. Juvenile Justice Fund Institutionalization

2.1. The State Governments are directed to institutionalize the Juvenile Justice

Fund established under Section 105 of the JJ Act. This fund will provide

financial assistance in the form of scholarships and stipends specifically for

girls at imminent risk of child marriage or whose marriages have been

annulled, promoting their educational and social empowerment.

3. Compensation for Girls Opting Out of Marriage

3.1. The Ministry of Women and Child Development is requested to consider the

viability of providing compensation to girls who opt out of marriage upon

reaching the age of majority under the NALSA Victim Compensation

Scheme or respective State Victim Compensation Schemes. This

compensation should be equivalent to that provided to rape victims,

ensuring adequate support for those who have escaped child marriage.

Page 137 of 141 PART X

4. Identification and Support for At-Risk Children

4.1. Superintendents of Police and Collectors are directed to identify instances

of child marriage and monitor children at risk of dropping out of school due

to socio-economic challenges or threats of early marriage. This initiative

should ensure:

4.1.1. Comprehensive access to education and health services for at-risk

children; and

4.1.2. Provision of stipends and fellowships to support their continued

education and mitigate the factors contributing to child marriage.

X. Suggestions

212. In the course of this judgment, we have traced the full breadth of the law

against child marriage. The PCMA is the central legislation governing the issue on

the subject. In light of the Constitutional guarantees accruing to children, we

observe certain gaps in the PCMA. Absent a Constitutional challenge or a case

being argued, we resist from making declarations and restrict ourselves to making

suggestions for the scrutiny of the Union. The legal question on these issues,

however, is kept open if it were to come before a Constitutional court in an

appropriate proceeding.

Page 138 of 141 PART X

213. The issue of the interface of personal laws with the prohibition of child

marriage under the PCMA has been a subject of some confusion. The Union in its

note of submission filed after the judgment was reserved in the case has stated

that this Court may direct that the PCMA prevails over personal law. The note

states as follows:

“9. As a way forward, Ministry of Women & Child Development has following inputs to provide for kind consideration of the Hon’ble Court –

i. There are conflicting pronouncements by various High Courts about the precedence of the Prohibition of Child Marriage Act (PCMA), 2006 over the personal laws. Hence, Hon’ble Court may consider issuing directions pronouncing that the PCMA will prevail over the personal laws governing marriage.

…”

214. Details of the conflicting opinions were not furnished in the submissions by

either party to these proceedings. The PCMA states nothing on the validity of the

marriage as we have noted above. The Prohibition of Child Marriage (Amending)

Bill 2021 was introduced in Parliament on 21 December 2021. The Bill was referred

for examination to the Department Related Standing Committee on Education,

Women, Children, Youth and Sports. The Bill sought to amend the PCMA to

expressly state the overriding effect of the statute over various personal laws. The

issue, therefore, is pending consideration before Parliament.

215. Lastly, we note that while the PCMA seeks to prohibit child marriages, it

does not stipulate on betrothals. Marriages fixed in the minority of a child also have

the effect of violating their rights to free choice, autonomy, agency and childhood.

It takes away from them their choice of partner and life paths before they mature

Page 139 of 141 PART XI

and form the ability to assert their agency. International law such as CEDAW

stipulates against betrothals of minors. Parliament may consider outlawing child

betrothals which may be used to evade penalty under the PCMA. While a betrothed

child may be protected as a child in need of care and protection under the JJ Act,

the practice also requires targeted remedies for its elimination.

XI. Conclusion

216. A copy of this Judgment will be transmitted to the Secretaries of all

concerned Ministries, the Government of India which includes the Ministry of Home

Affairs, Ministry of Women and Child Development, Ministry of Panchayati Raj,

Ministry of Education, Ministry of Information and Broadcasting, Ministry of Rural

Development, statutory authorities, institutions, and organizations under the

control of the respective ministries.

217. The Ministry of Women and Child Development is directed to circulate this

judgment to the Chief Secretaries/Administrators of all the States and Union

Territories, as well as NALSA, and NCPCR for strict compliance with the directions.

This shall be done within a period of four weeks from the date of delivery of this

judgment.

Page 140 of 141 PART XI

218. The writ petition is disposed of.

219. Pending application(s), if any, stand disposed of.

…….……………………………………CJI [Dr Dhananjaya Y Chandrachud]

.….…………………………………………J [J B Pardiwala]

..….…………………………………………J [Manoj Misra]

New Delhi;

October 18, 2024

Page 141 of 141