It Takes Away Their Choice Of Partner; Violates Their Rights: Supreme Court Urges Parliament To Consider Outlawing Child Betrothals
|The Supreme Court suggested the Parliament to consider outlawing child betrothals.
The Court suggested thus in a Public Interest Litigation (PIL) highlighting an increase in child marriages across the country and the failure to implement the relevant laws effectively. The Court noticed that the Prohibition of Child Marriage Act, 2006 (PCMA) does not stipulate on betrothals.
The three-Judge Bench comprising Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, “… 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 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.”
The Bench added that, while a betrothed child may be protected as a child in need of care and protection under the Juvenile Justice Act (JJ Act), the practice also requires targeted remedies for its elimination.
Advocate Mugdha appeared for the petitioners while Additional Solicitor General (ASG) Aishwarya Bhati appeared for the respondents.
The petitioner namely Society for Enlightenment and Voluntary Action approached the Court via PIL 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 was an NGO (Non-Governmental Organization) that has worked extensively against child marriage. The said NGO’s primary grievance was that, despite the enactment of the PCMA, the rate of child marriages in India is alarming.
It alleged the failure of authorities to prevent child marriages and therefore, sought stronger enforcement mechanisms, awareness programs, the appointment of Child Marriage Prohibition Officers (CMPO), and comprehensive support systems for child brides – including education, healthcare, and compensation, to ensure the protection and welfare of vulnerable minors. Accordingly, the petitioner prayed for the issuance of effective guidelines.
The Supreme Court in the above regard, said, “… 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.”
The Court further noted that, addressing child marriage requires an intersectional approach that acknowledges the overlapping vulnerabilities experienced by children, especially girls from marginalized communities. It said that, intersectionality involves considering factors like gender, caste, socioeconomic status, and geography, which often increase the risks of early marriage and 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.
“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 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”, it observed.
The Court also emphasized the need for more comprehensive approaches and community-driven strategies to ensure the complete eradication of child marriages.
“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”, it added.
Moreover, the Court enunciated that the PCMA is the central legislation governing the issue on the subject and the issue of the interface of personal laws with the prohibition of child marriage under the PCMA has been a subject of some confusion.
“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”, it said.
The Court, therefore, directed that the copy of its judgment be transmitted to the Secretaries of all concerned Ministries, the Government of India, statutory authorities, institutions, and organizations under the control of the respective ministries.
“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”, it further directed.
Accordingly, the Apex Court disposed of the writ petition.
Cause Title- Society for Enlightenment and Voluntary Action & Anr. v. Union of India & Ors. (Neutral Citation: 2024 INSC 790)
Appearance:
Petitioners: AOR Satya Mitra, Advocates Mugdha, and Kamran Khwaja.
Respondents: ASG Aishwarya Bhati, AG Amit Kumar, AORs Gurmeet Singh Makker, Manish Kumar, Abhimanyu Tewari, Deepanwita Priyanka, Avijit Mani Tripathi, Anando Mukherjee, Som Raj Choudhury, Anand Shankar, Sameer Abhyankar, Aravindh S., Ria Dhawan, Advocates Divyansh Mishra, Eliza Barr, Vikas Bansal, T.K. Nayak, Marbiang Khongwir, Rahul Kumar, Ayushi Bansal, Aakash Thakur, Amish Tandon, Aryan Srivastava, Sarthak Dora, and Abbas B.