The Law Commission of India has suggested that the Indian Government bring in suitable changes in the law so as to prohibit the marriage of children below the age of 18.
While giving 18 years as a uniform age of marriage for both boys and girls, the Commission suggested that child marriages involving a girl or boy below the age of 16 should be declared illegal. It said child marriages involving parties between 16 and 18 years should be null with an option to the minor to repudiate the marriage after he or she attains the age of 20. At present under the Hindu Marriage Act (HMA), the marriageable age of girls is 18 while the same for boys is 21.
The recommendations form part of the Commission's 205th report on The Prohibition of Child Marriage Act, 2006 (PCMA) and other allied laws. It was submitted by its Chairman Justice AR Lakshmanan to Law Minister HR Bhardwaj on Wednesday.
If the Government accepts the report and changes the rules accordingly, for the first time in India's history , a child marriage involving a bride or groom below the age of 16 will be illegal.
The present law i.e. the MHA and the PCMA do not have such provisions. Violation of the condition of age under the Hindu Marriage Act does not nullify a marriage.
Still, considering the chances of difficulties faced by girls in the case of a marriage declared void, the Commission has recommended that the female would be entitled to maintenance under the PCMA till her remarriage .
The Commission has also recommended mandatory registration of marriages within a fixed period, of all the communities - Hindus, Muslims, Christians etc.
On the age of marriage, it suggested: "The age of marriage for both boys and girls should be 18 years as there is no scientific reason why this should be different."
The Commission also noted that "in spite of these legal provisions, child marriage is still widely practiced and a marriage solemnized in contravention of these (age) provisions was not void under the old child Marriage Restraint Act, 1929, the Hindu Marriage Act, 1955 and also under the Muslim Law."
The issue of child marriages made it to national headlines after the high courts of Delhi and Andhra Pradesh upheld the validity of child marriages involving minor girls who had eloped with their respective lovers, and who were facing kidnapping and rape charges due to criminal cases filed by the girls' parents.
In addition to all this, the Law Commission has also recommended that the age of consent for sex should be raised from 15 years to 16 years for girls, regardless of marriage.
Currently, Section 375 of the IPC, that defines rape, provides the following exception: "Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape." The commission strongly suggests that the exception be deleted and the girl's age of consent for sex be upped to 16.
"This would ensure that the age of consent for sexual intercourse for all girls, whether married or not, is 16," the commission was quoted in its report on the Prohibition of Child Marriage Act, 2006 and other allied laws.
If the government accepts the recommendation and Section 375 is amended accordingly, a man eloping with a girl below the age of 16 and marrying her would face rape charges if he makes love to her even with her consent. "The rationale behind the minimum age of consent is that the girl is not mature enough to know the consequences of sexual intercourse and this rationale would be the same for a minor bride and other minors," the commission says.
The report highlighted the case of an 11-year-old bride who died of hemorrhage from a rupture of the vagina after her husband forced sex on her.