CRITICAL ANALYSIS OF THE REGISTRATION OF CHILD MARRIAGE BILL, 2021

Author: Simran Sheikh, Content Writer, Lex Auxilium

INTRODUCTION

On 17th of September 2021, the State Assembly of Rajasthan passed a bill to amend Rajasthan Compulsory Registration of Marriages Act, [1] which introduces the mandatory registration of child marriages. The bill has not altered the 2009 act [2] completely but Section 2, 5, 8 and 15 of the act [3] has been proposed to amend. This bill has two different opinions. One is that the bill leads to legitimization of child marriages; other is that it does not validate child marriages, instead aims at providing aids for the widows. Further, the bill directs to register child marriages within 30 days of the wedding.

CHILD MARRIAGE IN INDIA

Child marriages are the formal or an informal union entered by an individual before attaining the specified eligible age. In certain countries, the legal age of marriage is 18, but the cultural practices take priority over the legislative law. In India, the age of marriage is 21 for men and 18 for women. Reasons for practicing child marriages are debt, scarcity, lack of education and awareness, patriarchy, gender inequality, inadequate implementation of law. The practice of child marriage is a bane and violates human rights. The Indian Constitution and Prohibition of Child Marriage Act, 2006 [4] has prohibited it.

REASON FOR OBJECTION AGAINST THE BILL

In the case of Seema v. Ashwani Kumar [5] the Supreme Court has directed that all kinds of marriages should be mandatorily registered. The reason for this judgement was to reduce the abuse in child marriages. Based on this precedent, the Rajasthan assembly has amended the act [6] and gave clarity that this amendment doesn’t give validity to the child marriages, even actions will be taken against those who organize child marriages after registering it. The main purpose was to provide benefits to the widows, as they were not able to get the benefits of certain schemes due to non-registration of their marriage (registration certificate). The bill was objected to firstly, the legislation violates the law against child marriages. Secondly, child marriages are prohibited by the Indian Constitution and mentioning child marriages in the bill make it void. Thirdly, lawmakers are justifying child marriages which set wrong impression among the citizens. The National Commission for Protection of Child Rights (NCPCR) has said that it will examine the Rajasthan Compulsory Registration of Marriages (Amendment) Bill and will see that rights of the children are not violated. [7]

SECTION 2, SECTION 5, SECTION 15 – APPOINTMENT OF DISTRICT MARRIAGE REGISTRATION OFFICER AND OTHER OFFICERS

As per the amendment bill, Section 2, 5, 15 provides appointment of district marriage registration officer and additional district marriage registration officer for the district concerned and block marriage registration officer for the block concerned to monitor and review the work of registration of marriages in their respective jurisdiction.

SECTION 8–DUTY TO SUBMIT MEMORANDUM OF REGISTRATION

As per the amendment bill, Section 8 provides parties to the marriage that is bridegroom completed 21, bride completed 18, parents of the parties or guardians of the parties have to submit the memorandum. In case the bridegroom hasn’t completed age 21 and bride hasn’t completed age 18 then their parents or guardians have the duty to submit the memorandum. In short, it provides to register the child marriages by their parents or guardians within their jurisdiction in 30 days of the wedding.

SUBSECTION (1-A)

As per the amendment bill, Section 8(1-A) provides, if either of the parties to marriage or both parties dies, then the surviving party, parents, adult child or guardians may submit the memorandum to the registrar within whose jurisdiction the marriage is solemnized for at least 30 days before the submission of the memorandum. This provision enables a widow or widower, or their children, parents, or their guardians to register their marriage within 30 days of their death.

PROS AND CONS OF THE BILL

PROS

1. Right to annul the marriage.

Annulment of the marriage is the legal procedure where a marriage between a man and women is cancelled or completely erased or declared null and void. Section 12 of Hindu Marriage Act [8] provides for annulment of marriage by the decree of nullity. Annulment declares that the marriage never existed technically and was never valid. If marriage does not meet certain legal requirements provided in Section 5 of Hindu Marriage Act[9], then it can be considered as never existing in the eyes of law. Section 5(iii) of the act[10] provides legal age to get married. Annulment is not the same as divorce, it is retroactive to divorce. Prohibition of Child Marriage Act [11] states that child marriages are void and can be annulled by a party to marriage who was a child through her next friend/ guardian and a party can apply for annulling their marriage till they turn 20 years old but after attaining age of 18 only. The bill serves as documentary evidence before the court and once a minor becomes major he or she will have the right to annul the marriage.

2. Bringing simplicity and transparency to the work.

Appointment of officers at district and block level (district marriage registration officer, additional district marriage registration officer and block marriage registration officer) to monitor and review the registration work brings simplicity and transparency to the work. This will also make it easier for the general public to register.

3. Benefits to widow or widowers of certain government schemes.

Without a marriage registration certificate the widow or widower can receive no benefits from government as they don’t have any legal document to prove it. The bill aims at providing benefits of government schemes to widows or widowers to subsidize them.

CONS

1. Contradiction to the central law.

As per international law, a child means every human below the age of 18 years and even our constitution guarantees certain rights to all the children. But in the present bill, section 8[12] violates the right to freedom and life[13]. Registration of child marriage gives it a legal recognition or validity in the society. Further the bill lacks legislative competence as registration of marriages come within the ambit of vital statistics in Schedule VII List III Entry 30 of Constitution of India. Therefore, State Government does not have legislative competence of the vital issue relating to the compulsory registration.[14]

2. Violation of law against child marriages.

Child marriages are declared as illegal as per the provisions of Prohibition of Child Marriage Act[15]. Despite the illegality of child marriages, holding their validity violates the present existing laws. As per UNICEF survey, 2018 confirms the prevalence of child marriages in India.[16]

3. Supports child marriage which is a social evil and violates human rights.

Child marriages impact on children’s reproductive health. This kind of social evil must be rooted out through the legal methods resulting in strict penal provisions. The legislators and law enforcement must address this issue of vital importance to make sure that children are protected and kept safe.[17]

4. Creating uncertainty (As per the bill, it registers child marriages but does not validate it).

The lawmakers cleared that the bill does not validate child marriages. But the purpose for amending the act[18] was mentioned to provide legal certificates for the child marriages because the widows were not able to get benefits of schemes due to absence of marriage certificate. However, a marriage certificate is considered as a legal document which also means a valid document or we can also say that this document validates a marriage in society. This creates uncertainty in law.

CONCLUSION

Legislative body is considered one of the noblest pursuits in democracy. The amendments or the law they enforce must be in benefit of the public at large. Justifying evil acts by lawmakers sets a bad example to society. Despite the illegality of child marriages being enforced with penalties, how come registering them can uphold their validity. When the whole subject is considered as wrong, establishing a law including that wrong subject would lead to huge differences and contributes to uncertainty in law. Allowing the registration of child marriages would lead to dangerous situation and may further facilitate instances of child abuse.


[1] Rajasthan Compulsory Registration of Marriages Act, 2009, No. 16, Acts of Parliament, 2009(India).

[2] Id.

[3] supra note 1.

[4] Prohibition of Child Marriage Act, 2006, No. 6, Acts of Parliament, 2006(India).

[5] Seema v. Ashwani Kumar, (2006) 2 S.C.C. 578 (India).

[6] supra note 1.

[7] Sparsh Upadhyay, Rajasthan Assembly Passes Bill To Allow Registration Of Child Marriages, LiveLaw (Sep 20, 2021, 5:20 pm), https://www.livelaw.in/news-updates/rajasthan-assembly-passes-bill-to-allow-registeration-of-child-marraiges-181937.

[8] Hindu Marriage Act, 1955, No.25, Acts of Parliament, 1955(India).

[9] Id.

[10] supra note 7.

[11] supra note 4.

[12] supra note 1.

[13] INDIA CONST. art. 20, 21.

[14] Aaratrika Bhaumik, ‘Shields The Solemnization of Marriages of Children’: Plea In Supreme Court Challenges Section 8 of Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021, LiveLaw (Sep 27, 2021, 3:49 pm), https://www.livelaw.in/top-stories/supreme-court-child-marraige-rajasthan-compulsory-registeration-of-marraiges-amendment-bill-2021-182349.

[15] supra note 4.

[16] Malavika Rajkumar, To Root Out Child Marriage, Existing Laws Need Tightening, THEWIRE (Sep 27, 2021, 3:58 pm), https://thewire.in/rights/child-marraige-laws-india.

[17] Id.

[18] supra note 1.

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