Still a Child, Already a Wife: Critical Analysis of the Prohibition of Child Marriage Act, 2006
~ By Sakshi Chakrawati Waghmare
Abstract
Child marriage remains India’s biggest problem pervasive violation of children’s rights often affecting the girl child, despite the existence of statutes like the Prohibition of Child Marriage Act, 2006 (PCMA). The research critically analyses the factors that enable the practice to persist by emphasising the intersection of poverty, patriarchy and gender inequality that leave the young girls, particularly the disadvantaged ones. The research examines the flaws in the statute and advocates for meaningful transformation in the act. The study examines empirical data, legal frameworks and socio-economic realities to demonstrate how the current law fails to offer strong safeguards to minors compelled into such marriages. The research suggests comprehensive reforms to the act and the need to move from symbolic prohibition to genuine abolition of child marriages for the protection of children.
Key Words: Child, Marriage, India, Poverty, Patriarchy, Inequality.
Introduction
Child marriages are a serious violation of children’s rights. In addition to violating children’s rights, child marriage puts them at serious risk of abuse, exploitation, and violence. Child marriage affects both boys and girls, but it disproportionately affects girls. In India, there are 472 million children aged 0 to 18, according to the 2011 Census. While India accounts for more than 40% of child marriages worldwide. It is estimated that every year in India, at least 1.5 million females under the age of eighteen get married. This problem persists in India despite welfare laws such as the Prohibition of Child Marriage Act 2006 (hereinafter referred to as PCMA). Empirical evidence shows that poverty and child marriage have a strong connection, and child marriage is likely to make girls more vulnerable. Aside from this, patriarchy is the primary cause of child marriage, which further contributes to the exploitation of girl children. The study further discusses if the current legal system provides sufficient protection for girls and how the current statute’s shortcomings affect the girl child. By comprehending the intersections of gender, law, and poverty, this study critically investigates the intricacies that situate the persistence of child marriage.
Protection or Punishment: Failure of Law to safeguard the girl child
Being a woman is a battle that starts at a young age, regardless of where she is born. Little girls’ grins frequently hide a silent battle against systems that deprive them of autonomy and choice. This cycle of violence, which starts in childhood, needs to be broken. Even today, childhoods in India are being stolen by the terrible reality of child marriage, despite progressive laws, court decisions, and international obligations. This study demonstrates how young females get married off. These marriages rob girls of their childhood and leave them grieving for the rest of their lives. According to the study, a girl child who marries has a higher likelihood of quitting school, not finding employment, and not making a substantial contribution to the community. She is more susceptible to both domestic violence and HIV/AIDS infection. Her chances of becoming a mother are higher when she is still a small child. Her chances of dying are increased by pregnancy and delivery complications. The primary reason behind this issue is gender inequality. The most prominent example of gender inequality may be found in schools, where just 49% of nations have achieved equality in primary education, meaning that 51% of nations still do not. UNICEF data shows that a total of 129 million female children do not attend school. The dropout percentage is 24% for upper secondary years. This demonstrates the serious injustices that girls experience when they fail to get an education.
The international human rights standards have always included the right to gender equality in marriage, as stated in the Universal Declaration of Human Rights (article 16), reaffirmed in the two fundamental human rights covenants, and somewhat amplified in CEDAW, as well as a few other early conventions (on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962, and on the Nationality of Married Women, 1958).
The PCMA, which addresses child marriage in India, clearly violates international responsibilities by discriminating against girls and boys based on their age of marriage (18 for females and 21 for boys). Despite the constitutional promise of equality, statutes like PCMA, where there is clear gender disparity, violate the constitutional provisions as well. In PCMA section 2 (a), “child” is defined as a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.
In lieu of violating Article 15, which is a fundamental right, the disparity in marriage ages between boys and girls also deprives girls of their access to an education. The study observes the strong association between a girl’s likelihood of getting married young and the number of years she spends in school. Therefore, gender bias and the state’s ongoing cycle of systematic discrimination and exclusion are reflected in the disparity in marriage age. These regulations create legal loopholes that permit the continuation of practices such as child marriage. Apart from that, due to early marriages, there arise teenage pregnancies, which are a threat to young girls. In India, 27.3% of teenage girls who were married had at least one kid, and 4.2% had two or more. 36% of married young girls between the ages of 15 and 19 who were married before turning 18 had a low Body Mass Index (BMI). Over 80% of child marriages occurred in rural regions in 13 states and roughly 70% in 20 states.
Moving from Regulation to Abolition
Marriages under PCMA are not void ab initio but voidable. Section 3 of the act reads as ‘Child marriages to be voidable at the option of the contracting party being a child.’ It implies that after reaching the age of majority, a person who was a minor at the time of the marriage may annul it. Mostly in child marriages, the minor party is a girl, highlighting the entrenched gender bias in India. Data from the National Family Health Survey (NFHS-5, 2019-21) reveals that 23.3% of females aged 20-24 were married before the age of eighteen, compared to only 2.7% of men married before 21. This stark disparity shows how girls disproportionately bear the brunt of early marriage. Even though the law allows annulment of a child marriage under the PCMA, 2006, this choice is often illusory for young girls. The patriarchal control, poverty, and economic dependency make it nearly impossible for a girl child to leave an existing marriage. Because women in India still experience prejudice, domestic abuse, and exclusion from decision-making procedures, their rights to annulment are hardly used. Additionally, a girl’s possibilities are severely limited by her lack of education and financial freedom. UNICEF (2021) reports that females who get married before turning 18 have a 15% lower chance of finishing secondary school and are almost four times more likely to drop out than their single peers. India’s female labour force participation rate is only 28%, according to the World Bank (2023), which highlights the structural obstacles to women’s economic empowerment. This highlights the discrepancy between the law and reality; although it is possible to nullify a child marriage, young spouses’ social and economic circumstances render this right unachievable in practice. Even in 2017, the PCMA’s failure to declare child marriage null and void while outlawing and criminalising it was deemed “strange” by the Supreme Court’s bench of retired justices M.B. Lokur and Deepak Gupta. Therefore, it is imperative that the Child marriages be declared void ab initio in order to safeguard girls and abolish child marriage.
Conclusion
The heinous acts like child marriages persist in India not because of a lack of statutes but because of the deep-rooted structural inequalities that the statutes failed to acknowledge.
Firstly, the PCMA was enacted as a social-welfare legislation, its most significant loopholes lie in the fact that child marriages are not void ab initio but merely voidable. This means the act only prohibits the practice without truly banning it, effectively shifting the burden onto the minor, often a young girl to decide whether she wishes to continue or annul the marriage after attaining majority. In doing so, the statute completely overlooks the lived realities of poverty, patriarchy, and gender inequality, thereby failing to protect the very children it aims to safeguard. Secondly, the marriageable age differs according to gender, further reinforcing inequality based on gender, contrasting with the constitutional provisions mentioned in Part III and international human rights commitments.
The act needs meaningful transformation to move from regulation of child marriage to its complete abolition. Declaring the child marriages void ab initio and ensuring a uniform marriageable age are essential reforms that must be undertaken to strengthen the legal framework and provide genuine protection to children.
Prohibiting child marriages is not only a legal reform but a societal mandate to restore childhoods, dignity and futures stolen far too early. To honour the constitutional vision of equality and justice, the state must ensure that the girl child and all the minors forced into such marriages shall be meaningfully protected by moving from just symbolic promises to substantive reality.
Author’s Bio – Sakshi Waghmare is a final-year B.A.LL.B. (Hons.) student at ILS Law College, Pune.