Breaking| "To Prioritise Prevention Before Protection & Protection Before Penalizing": SC Issues Comprehensive Guidelines In PIL Alleging Rise In Child Marriages

In a Public Interest Litigation (PIL), which alleged an increase in child marriages across the country and the failure to implement the relevant laws effectively, the Supreme Court today issued comprehensive guidelines to get rid of child marriages in the country.

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra stated that the Prohibition of Child Marriage Act (PCMA), 2006, does not say anything on the validity of child marriages.

However, the Court noted that while the PCMA seeks to prohibit child marriages, it does not stipulate on betrothals; marriages fixed in the minority of the child also effect on violating their rights of free choice and autonomy. "It takes away from them their choice of partner....., before they mature and form the ability to agency," the Bench said.

The Court suggested that the Parliament may consider outlawing child betrothals.

At the outset, the CJI said, "We have looked at the entire gamet of law of child marriages in India...We have given various directions; for achieving the whole purpose, I will just read out a couple of paragraphs."

In light of the following analysis, the Bench said, "We seek to formulate certain guidelines for the elimination of child marriages while bearing in mind delicate socio-economic interplay. Addressing child marriage requires an intersectional approach that acknowledges the overall vulnerability experienced by children, especially by girls from marginalised communities... factors like gender, caste, socio-economic status, and geography which offer the risk of early marriage. Preventive strategies should be tailored for the various communities... "

The Court said, "Prohibition of Child Marriage Act (PCMA), 2006, as social legislation will only succeed if coordination is there from all stakeholders to address the issue within a broader social framework, which emphasises the need for multi sectoral... it is also crucial to regularly monitor the implementation of the act and conduct evaluations to identify gaps....as we issue these directions, we emphasize the need for a more comprehensive guideline and community driven strategies to ensure complete eradication of child marriage."

The Court said it has framed the following guidelines for the effective and useful implementation of the PCMA: "To prioritise prevention before protection and protection before penalizing."

The guidelines have been formulated with respect to:

a. Legal enforcement

b. Judicial Measures

c. Community Involvement

d. Awareness Campaigns

e. Training and Capacity Building

f. Education and Social support

g. Monitoring and Accountability

h. Technology driven initiatives for child-marriage

i. Funding and resources

The Bench also gave a few suggestions; it said, "We observe certain gaps in the PCMA. We resist on making declarations and restrict ourselves to making suggestions for the scrutiny of the Union. The legal issues of this, however, are kept open." The Court directed that a copy of this judgment will be transmitted to the secretaries of all the concerned ministries, the Government of India, which included the Ministry of Home Affairs, Ministry of Child and Woman Development, Ministry of Panchayati Raj, Ministry of Education, Ministry of Information and Broadcasting, and Ministry of Rural development, statutory authority institutions and organizations under the control of the respective ministries.

"The Ministry of Child Development is directed to circulate this judgment to all the chief secretaries and administrators of all states and UTs, as well as NALSA and NCPCR for strict compliance. This shall be done within a period of four weeks," the Court ordered.

Accordingly, the Court disposed of the PIL.

Pertinently, on July 10, the Court had reserved verdict in the PIL. The PIL was filed by the NGO Society for Enlightenment and Voluntary Action and the National Campaign Committee for the Eradication of Bonded Labor. Pertinently, on April 13, 2024, the Court had directed the Union government to engage with the state governments in order to apprise them of the compliance by the state with the appointment of child marriage prohibition officers under Section 16 of the Prohibition of Child Marriage Act 2006.

During the hearing, Additional Solicitor General (ASG), Aishwarya Bhati, appeared on behalf of the Centre.

The Counsel for Petitioner NGO had highlighted that there is no data about how many prosecutions lead to convictions or what has happened to these FIRs. "We don't know the end result of these FIRs at all...We should at least know where these prosecutions are leading," she had submitted. The Counsel had contended that there are a few states that are severely plagued by this problem. She had argued that the numbers are "sky-rocketing."

"Prevention should also lead to some kind of prosecution, because then you are holding the people who are engaging in this," the counsel had argued. She further argued that all the government schemes are putting onus on the girl child, and unfortunately, this is not what is perpetrated by the girl or the boy. She had submitted, "There are 17.1% boys also who are forced into child marriage at this point, so 23.3% girls and 17.1% boys. The entire onus is on girls, to educate them, empower them, and give them water, but they do not address the issue because they are very socially engraved problems; these are being systematically done in these areas; this is not something happening on account of the girl child; it is happening to them".