Society for Enlightenment and Voluntary Action & Anr. vs Union of India & Ors.

(4) Awareness Campaigns: Led by CMPOs in Schools, Religious Institutions, Panchayats; Integrating comprehensive sexuality and rights education into school curricula; Educational materials and community awareness tools; Targeted community awareness campaigns; Empowerment programs for girls and young women; Helpline awareness and reporting mechanisms – (5) Training/Capacity Building for Teachers and School Administrators, Training for Community Health Workers and Educators, Law Enforcement, Judicial Officers and Health Care Providers; as also Empowerment of Local Leaders and Community Influencers; Engagement with Non-Governmental Organizations (NGOs) – (6) Educational and Social Support like scholarships, educational incentive programs specifically targeted at girls at risk of child marriage; Social Welfare Programs; Convergence and continuity of services – (7) Monitoring and Accountability which inter alia includes formulation of Standard Operating Procedure by NALSA, Ministry of Women and Child Development, in consultation with State Child Protection Societies, National Commission for protection of child rights; Monitoring also includes role of Panchayats and local leaders; Individual care plans for At-Risk girls – (8) Technology-driven initiatives for reporting child marriage such as creation of a Centralized Reporting Portal; Technology-Driven Support Services; Monitoring of Attendance –

(9) Funding in form of Dedicated annual budget allocation by relevant ministries of the Union Government for each State aimed at preventing child marriage and supporting affected individuals; Institutionalization of Juvenile Justice Fund; Compensation for Girls opting out of marriage; Identification and support for At-Risk Children. [Para 211]

Prohibition of Child Marriage Act, 2006 (PCMA) vis-à-vis Personal laws – PCMA, if overrides various personal laws governing marriage:

Held: Issue is pending consideration before Parliament as the Prohibition of Child Marriage (Amending) Bill 2021 introduced in Parliament sought amendment of PCMA to expressly state the overriding effect of the statute over various personal laws. [Para 214] Suggestions by Supreme Court – Outlawing of child betrothals: Held: Child betrothals, marriages fixed in the minority of a child undermines and violates their rights to free choice, autonomy, agency and childhood – Though Prohibition of Child Marriage Act, 2006 prohibits child marriages, it does not stipulate on betrothals – Parliament may consider outlawing child betrothals. [Para 215] Child marriage – Constitutional guarantees against – Right to self-determination: choice, autonomy and sexuality of children; Right to health; Right to childhood: Right to education and development – Explained – Evils of child marriage, enumerated: Held: Child marriage deprives children of their agency, autonomy, right to sexuality and right to enjoy their childhood – The right to life and liberty enshrined in Article 21 of the Constitution is violated by the commission of child marriage – Both sexes are adversely affected by forced and early marriage – Constitution recognises the right a person has over all aspects of their sexuality – Men and women alike are victimised by compulsory heterosexuality – In child marriage, their limited agency within heteropatriarchy is also taken away in infancy – Marrying in childhood objectifies the child – Child marriage imposes mature burdens on children who are not physically or mentally prepared to comprehend the significance of marriage – The right to choice and autonomy of a woman who is married as a child is violated by the system of child marriage – Minor girls forced to make conjugal relations experience posttraumatic stress and depression emanating from sexual abuse by an elder partner – Right to choice and autonomy includes the right to reproductive freedom – The right to reproductive freedom is part of the rights wherein the right to the health of a person also finds place – Constitution recognises the right to health as an inalienable aspect of the right to life and personal liberty under Article 21 – Child marriage inflicts tangible and lifelong physical and mental injuries to its members – 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 – Marriage for most women in patriarchal societies is an announcement of educational conclusion – The minority of a woman’s age at the time of her marriage has a heightened impact on her education – Right to primary education is a fundamental right expressly enshrined under Article 21-A – Issue as regards approach towards boys in child marriage also ought to be taken into account – The right to childhood belongs to all sexes – Primary, sexual and life enhancing education is integral to the right to childhood. [Paras 171, 173, 176-178, 184, 188, 191, 197]

Prohibition of Child Marriage Act, 2006 – Scheme of the Act – ss.3-7, 9-12, 15, 13, 14, 16 – Protection of women married as girls, children born in child marriages – Maintenance and residence of the female contracting party; custody and maintenance of children of a child marriage – Solemnization of child marriages – Punishment – Preventive measures against child marriages, deterrence and prevention – Injunctions against child marriages – Elucidated – Appointment of Child Marriage Prohibition Officers (CMPOs), appointment of exclusive CMPOs in each district directed.

Prohibition of Child Marriage Act, 2006 – s.9 – Punishment for male adult marrying a child – Penalizing the groom based on higher agency he possesses in the marriage as against the girl: Held: Under s.9, the Court is empowered to penalise an accused with imprisonment or a fine or both – Punishment can be imposed based on the gravity of the offence, the circumstance of the marriage and the socio-economic power of the male over his child bride – Further, despite the age of majority for a man to enter into a marriage being twenty-one under s.2(a), his criminal liability for entering into a child marriage with a minor woman begins at eighteen – Under s.9, a woman, regardless of her age is not liable for entering into a child marriage and 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 into child marriage is to recognise the relative control of the agency that a groom has in relation to his marriage as opposed to a girl. [Paras 52, 55]

Prohibition of Child Marriage Act 2006 – ss.10, 11 – Scope – Punishment for solemnising a child marriage – Punishment for promoting or permitting solemnisation of child marriages: Held: The Act punishes three classes of persons – An adult groom in a child marriage (s.9); persons involved in the solemnization of child marriage (s.10) and; persons promoting or permitting the solemnization of child marriage (s.11) – s.10 is expansive and governs any accomplice to the commission of child marriage including the priest who performs the marriage, any family member, relative or person at whose direction the marriage takes place or anyone who abets it – Further, under s.11 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 – The person liable under s.11 may be the parents of the child or a guardian or any other person or organisation – 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’ – Thus, the section penalises any person or organisation involved in a child marriage – Its expansive scope allows 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 – s.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. [Para 52, 58, 60]

Prohibition of Child Marriage Act 2006 – s.11 – Intention – Explained.

Prohibition of Child Marriage Act 2006 – s.12 – Child marriage when void ab initio – Stated.

Prohibition of Child Marriage Act, 2006 – s.11(2) – Presumption of negligence – Nature of presumption:

Held: s.11(2) raises a presumption – Any person in charge of a child who was married off, is presumed to have negligently failed to prevent the child marriage – The presumption is however, rebuttable and may be rebutted by proving that the person could not have prevented the marriage or failed at preventing it, despite their best efforts – This principle is only applicable to an offence u/s.11. [Para 62]

Child marriage – Laws governing child rights – Protective legislations such as Protection of Children from Sexual Offences Act, 2012 – Juvenile Justice (Care and Protection of Children) Act, 2015 – ss.2(14), 27, 106, 107 – Commissions for Protection of Child Rights Act 2005 – ss.2(b), 13, 24 – Legal Services Authorities Act 1987 – s.12 – Protective framework of the Acts:

Held: 1. 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 directly than any other institution, stipulates for the sexual abuse of child brides by design. [Para 81]

2.1 The Juvenile Justice (Care and Protection of Children) Act provides a comprehensive framework to deal with children in need of care and protection (CNCP). Section 27 of the JJ Act establishes the Child Welfare Committee (CWC) 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. Therefore, children who are married off are required to be produced before the CWC so that they may be rehabilitated and taken care of. 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. [Para 85]

2.2 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 Special Juvenile Police Units (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. [Para 88]

3.1 The effective implementation of the Prohibition of Child Marriage Act, 2006 (PCMA) also falls within the subject matter of the National Commission for the protection of Child Rights (NCPCR) and State Commissions for the protection of Child Rights (SCPCR) established under Commissions for Protection of Child Rights Act 2005. [Para 92]

3.2 The Ministry of Women and Child Development (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, Child Development Project Officers (CDPOs), Child Welfare Committee (CWCs), and Anganwadi Workers. These initiatives have aimed to create a coordinated approach to tackling child marriage at the grassroots level. [Para 93]

3.3 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. [Para 94]

4. Section 12(c) of the Legal Services Authorities Act 1987 stipulates that any child who has to file or defend a case is entitled to legal services. 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, State Legal Services Authority, District Legal Services Authorities, 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. [Para 96] Child Marriage – Schemes, Policies formulated by the Union Government also, to empower young girls and women – Discussed – Lack in implementation of targeted measures solely for prevention of child marriage – Direction issued for introducing special scheme focusing on skill development, vocational training and economic stability for women and girls who leave child marriages – Various preventive training, education, financial support, community-based initiatives and other initiatives by States and UTs – Stated – Impact analysis of State schemes.

Child marriages – Child Rights Law – International law – Universal framework on Child Rights – International Conventions, Political Conventions; Regional Conventions – Universal Declaration of Human Rights; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956; International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of the Child – Framework developed in the African Union, the European Union and the SAARC – Elucidated – Rights-based framework against child marriages: Right to free choice and autonomy – Right to free and informed consent, Right against gender-based violence; Right to education – Right to primary education, Right to be informed, Right to sex education; Right to development of children – Stated.

Child marriages – Indian jurisprudence – Constitution of India – Article 51 – India’s obligation as regards international treaties, conventions and norms – Discussed.

Child marriage – Age of marriage, age of consent – History traced – Effects, socio-economic determinants of child marriage – Explained.

Child Marriage Restraint Act, 1929 – Salient features – Discussed.