Under the Prohibition of child marriage act, 2006, the word ‘child’ is defined as the person of 21 years of age if male or 18 years of age if female.
Child marriage restraint act, 1929 for the first time defined the age of marriage for girls and boys. The age of girls initially was 14 years and the age of boys was 18 years. Later the act amendment and the age were increased to 15 years for girls and to 18 years for boys. Finally, by the amendment act of 1978, the age for girls was increased to 18 years and the age for boys was increased to 21 years. This act contains the punitive provisions but didn’t make the marriage void or voidable. Presently, this act is repealed by the prohibition of child marriage act, 2006.
The Hindu marriage act, 1955, section 5(3) talks about the age of bride and bridegroom for constituting marriage. So for solemnizing the Hindu marriage the bride must complete the 18 years of age and the bridegroom completed the 21 years of age.
Section11 of the Hindu marriage act, 1955 talks about the void marriage. It says that marriage constituted in contravention of section 5 clauses (1), (4) & (5) is void. So as per the Hindu marriage act child marriage is not void.
Under the Hindu marriage act Section 12 talks about voidable marriage. It doesn’t make child marriage voidable.
Hence under Hindu marriage act sections 11 & 12, child marriage is neither void nor voidable.
Section 13(2) of the Hindu marriage act says that the wife may present a petition for dissolution of her marriage on the ground that her marriage was performed before the age of 15 years but her repudiating such marriage after she attained the age 15 years but before 18 years of age. The legislature is indirectly recognizing child marriage.
Section 18 of the Hindu marriage act provides punishments for constituting marriage in contravention of section 5(3).
There is no clarity on the status of child marriage under the Hindu marriage act.
Section 375 of the Indian Penal Code provides the exception that sexual intercourse by a man with his own wife not under 18 years of age is not rape.
The prohibition of the child marriage act, 2006 makes child marriage voidable at the option of parties to the marriage. But it would be void in certain circumstances described under section 12 of the prohibition of the child marriage act. Circumstances described under section 12 are:
- Minor taken out of guardianship of lawful guardian.
- Minor forcefully compelled for marriage.
- Minor sold for marriage.
- Minor used for immoral purpose.
Presently the status of child marriage is voidable at the option of parties under the prohibition of the child marriage act, 2006. If such marriage isn’t falling under section 12 of the Hindu marriage act of prohibition of the child marriage act.