SC issues guidelines on prevention of child marriages, sidesteps question on personal laws

A Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Justice Manoj Misra observed that children who are thrown into forced marriages are deprived of their right to development..—.IN a significant ruling, the Supreme Court on Friday issued a slew of directions to achieve the elimination of child marriages..While issuing the directions, a Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Justice Manoj Misra observed that children who are thrown into forced marriages are deprived of their right to development..The Bench added that the material deprivation of health, education, employment and life opportunities wreaked by child marriage is an affront to the cherished constitutional principles of equality, liberty and free expression..The Bench also noted that the Prohibition of Child Marriage Act (PCMA), 2006 seeks to prohibit child marriages, but it does not create a stipulation against child 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 and form the ability to assert their agency," the Bench said..The Bench expressed a desire that the Parliament consider outlawing child betrothals which may be used to evade penalty under the PCMA..“The Bench noted that the Prohibition of Child Marriage Act, 2006 seeks to prohibit child marriages, but it does not create a stipulation against child betrothals..The ruling came on a public interest litigation raising the grievance that despite the enactment of the PCMA, the number of child marriages in India is alarming. The petitioner sought stronger enforcement mechanisms, awareness programmes, the appointment of child marriage prohibition officers (CMPOs), and comprehensive support systems for child brides— including education, healthcare and compensation— to ensure the protection and welfare of vulnerable minors..Scheme of PCMA.The PCMA stipulates the marriage age as twenty-one for males and eighteen for females. 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..Also read: Criminalising viewing of child pornography: A critique of the Supreme Court reasoning in S. Harish.Under Section 3 of the PCMA, a child marriage is voidable at the instance of the contracting party who was a child at the time of the marriage. Such a person must exercise the right to file the petition within two years of attaining majority..In case the party is still a minor, the petition may be filed by their guardians or friends along with the CMPOs..Offenders under the PCMA.The PCMA prescribes punishment for three classes of persons, namely, (i) an adult groom in child marriage, (ii) persons involved in the solemnisation of child marriage, and (iii) persons who promote or permit the solemnisation of child marriage..The maximum punishment prescribed for all three classes is rigorous imprisonment of two years and a fine of ₹1 lakh. No mandatory minimum punishment for committing an offence under the PCMA is prescribed..The Bench noted that 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, the Bench felt..All offences under the PCMA are cognisable and non-bailable. Section 12 stipulates three instances in which the marriage of a child is null and void from the very inception. These instances are where a minor child:.(i) Is taken or enticed out of the keeping of the lawful guardian. .(ii) Compelled by force or by any deceitful means induced to go from any place..(iii) 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..The PCMA also provides for preventive measures by an injunction against the commission of child marriage in that 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..Also read: Is it time for a law addressing sexual violence against Muslim women?.The Act also provides for the appointments of CMPOs. A CMPO is mandated to carry out the duties stipulated in Section 16(3) of the PCMA. These duties are as follows:.(i) To prevent solemnisation of child marriages by taking such action as he may deem fit..(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..(vii) To discharge such other functions and duties as may be assigned to him by the state government..Data from the 2019–21 National Family Health Survey (NFHS-5) reveals that 23.3 percent of girls under the age of eighteen and 17.7 percent of boys under the age of twenty-one are married in India..The data is based on a survey of women aged 20–24 and men aged 25–29. It reflects an overall reduction in child marriage from the 2015–16 NFHS-4 which showed that 26.8 percent of girls and 20.3 percent of boys marry under the legal age of marriage..“The PCMA stipulates the marriage age as twenty-one for males and eighteen for females..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 percent to 27 percent in 2015–16 and 23.3 percent in 2019–21..The decline in child marriage in India is in line with global trends. In the past decade, the proportion of girls married as children has dropped by 15 percent. Despite these enormous strides globally and in India, no region in the world is on track to attain the Sustainable Development Goal (SDG)-5 target..Also read: Juveniles in adult prisons: Why is the Juvenile Justice Act failing its object and purpose?.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..Guidelines issued by the Bench.With regard to the CMPOs.The Bench directed that state governments and Union territories must appoint officers solely responsible for discharging the functions of CMPOs at the district level. These officers should not be burdened with additional duties that could impede their focus on preventing child marriage..The petitioner had argued 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..The Bench has now ordered that state governments 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 Union territory 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," the Bench said..The Bench also noted that the level at which CMPOs are designated— whether at the district, block or gram panchayat level— is also a critical concern..In its judgment, the Bench recorded that Karnataka has 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..“Data from the 2019–21 NFHS-5 reveals that 23.3 percent of girls under the age of eighteen and 17.7 percent of boys under the age of twenty-one are married in India..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..Also read: POCSO and judicial scrutiny of victim's evidence: Is the burden of absolute consistency too high?.The Bench has also directed state governments to upload quarterly reports from CMPOs on their official websites which will also give details of the steps taken to prevent child marriages and the outcomes of investigations..In addition, the ministry of women and child development and ministry of home in each state and Union territory are directed to conduct quarterly reviews of CMPOs and law enforcement agencies to assess their performance. They are also directed to execute mandatory training refreshers for CMPOs every six months..With regard to collectors and superintendents of police.Apart from fixing the responsibilities of CMPOs, the Bench has directed that the collectors and superintendents of police in each district across the country will also be responsible for actively preventing child marriages within their districts..The Bench said these officers will have the authority and responsibility to prosecute all individuals who facilitate or solemnise child marriages, including those who knowingly assist, promote or bless such marriages, even if reported in public events or media..The Bench said that special 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..Failure by district authorities to act in accordance with this mandate will warrant immediate administrative action and disciplinary proceedings against the responsible officials, the Bench said..Establishment of a specialised police unit.The Bench directed state ministries of home affairs to consider the viability of integrating special juvenile police units (SJPUs) into the child marriage prevention framework..It added that the ministry of women and child development must consider the viability and prescribe a format for the SJPUs to biannually report the following:.Outcomes of legal actions taken against perpetrators of child marriage, including any convictions or pending cases..Also read: How gender-just is the Uttarakhand Uniform Civil Code?.Number of awareness programmes conducted and the community engagement efforts made to prevent child marriages.Status of collaboration with local law enforcement and child protection agencies in addressing child marriage. Any challenges faced in the reporting period and recommendations for improving child marriage prevention efforts.Establishment of a special child marriage prohibition unit.The Bench has also directed the state governments and Union territories to constitute a state special child marriage prohibition unit (SSCMPU) and where there are more than one CMPOs in any district, a district-level special child marriage prohibition unit..The unit will comprise all CMPOs of the state or the district, as the case may be, and shall include five social workers having experience working against child marriage or on child rights..“The Bench has directed all magistrates vested with authority under Section 13 of the PCMA to take proactive measures, including issuing suo motu injunctions to prevent the solemnisation of child marriages..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.."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 the discharge of their functions, including but not limited to, any difficulty relating to social ostracisation for preventing child marriages.."The Unit shall act as a forum of sharing best practices, inviting trained professionals to dispense knowledge and collectivise and redress grievances," the Bench ruled..Judicial measures.The Bench has directed all magistrates vested with authority under Section 13 of the PCMA to take proactive measures, including issuing suo motu injunctions to prevent the solemnisation of child marriages..It has also emphasised that the magistrates must focus on "auspicious days" known for mass weddings when the occurrence of child marriages is notably high..Also read: Courts asking POCSO victims who turn hostile to return compensation right or wrong?.Upon receiving credible information or even upon suspicion, magistrates should use their judicial powers to halt such marriages and ensure child protection..Exploration of special fast-track courts for child marriage cases.The Bench has directed the Union government to assess, in coordination with state governments, 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..The Bench has also 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..It has also directed every state government to develop an Annual Action Plan to prevent child marriages, incorporating key performance indicators (KPIs) that reflect local cultural and social contexts..The Bench has also issued guidelines to create social awareness against child marriages through training programmes and seminars..“The Bench has also directed state governments to upload quarterly reports from CMPOs on their official websites which will also give details of the steps taken to prevent child marriages and the outcomes of investigations..It has also directed the National Legal Services Authority (NALSA) to formulate a standard operating procedure that provides comprehensive guidelines for legal support services, and long-term rehabilitation plans related to the prevention of child marriages and protection and rehabilitation of victims of child marriage for lawyers and law-enforcement officers..The Bench directed relevant ministries of the Union government to recommend the allocation of a dedicated yearly budget for each state specifically aimed at preventing child marriage and supporting affected individuals..The Bench has also requested the Union ministry of women and child development 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..Also read: NCPCR taking cognisance of 'indecent acts between mothers and sons' raises uncomfortable questions.This compensation should be equivalent to that provided to rape victims, ensuring adequate support for those who have escaped child marriage..The issue of the interface of personal laws with the PCMA not decided.In its judgment, the Bench noted that the Union of India filed submissions after the judgment was reserved stating that the court may direct that the PCMA prevails over personal law..In their note, the Union government stated that "there are conflicting pronouncements by various high courts about the precedence of the Prohibition of Child Marriage Act (PCMA), 2006 over personal laws. Hence, the court may consider issuing directions pronouncing that the PCMA will prevail over personal laws.".“The Bench directed relevant ministries of the Union government to recommend the allocation of a dedicated yearly budget for each state specifically aimed at preventing child marriage and supporting affected individuals..The Bench, however, noted that the details of the conflicting opinions were not furnished in the submissions by either party to these proceedings. The Bench added that the PCMA states nothing on the validity of personal laws.."The Prohibition of Child Marriage (Amending) Bill 2021 was introduced in the Parliament on December 21, 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 the Parliament," the Bench said while signing off from this particular issue.

SC issues guidelines on prevention of child marriages, sidesteps question on personal laws

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