Constitution of India- Article 21 – The right to life and liberty enshrined in Article 21 of the Constitution258 is violated by the commission of child marriage. All children married as minors are denied their right to choice and autonomy, right to education, right to sexuality and the right to development of the child. Girls who are married as children are denied their right to health. (Para 171) – Issued guidelines for the effective and useful implementation of the PCMA. The orientation of these guidelines is to prioritise prevention before protection and protection before penalisation . Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA. While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination. (Para 215)
Prohibition of Child Marriage Act 2006 -Section 16- Child Marriage Prohibition Officers – Given the significant obligations expected to be discharged by a dedicated CMPO, no officer with other responsibilities shall be appointed as the CMPO. States or UTs shall appoint exclusive CMPOs in each district in addition to any CMPOs already serving in a dual capacity, and they shall equip these officers with adequate resources for the effective discharge of their functions. If a State or UT concludes that instances of child marriage have decreased to the extent that appointing exclusive CMPOs is no longer necessary, it may file an application before this Court, seeking leave to appoint a CMPO who also holds other duties at the District level. (Para 78)
Prohibition of Child Marriage Act 2006-Section 2(a),9 –Despite the age of majority for a man to enter into a marriage being prescribed as twenty-one under Section 2(a) of the Act, his criminal liability for entering into a child marriage with a minor woman begins at eighteen- A woman, regardless of her age is not liable for entering into a child marriage. A man above the age of eighteen but under the age of twenty one is liable for marrying a girl who is under the age of eighteen. The legislative intent behind making a groom liable for entering child marriage is to recognise the relative control of the agency that a groom may have in relation to his marriage as opposed to a girl- No child as defined in Section 2(a) of the PCMA is liable under Section 9 for marrying an adult person. (Para 55-56) – Section 10 – The provision is expansive and would govern any accomplice to the commission of child marriage. This would include the priest who performs the marriage, any family member, relative or person at whose direction the marriage takes place or anyone who abets it. (Para 58) – Section 11 – The intention of the provision is to place an obligation on any person who has the charge of a child to ensure that the offence of child marriage is not committed. The provision not only penalises the active participation of the person having charge of a child but also penalises the omission on the part of such a person to prevent child marriage. The provision recognises that children lack the ability to form intelligent consent and may not necessarily know the full ambit of the activity which they are about to commit. Further, children may lack the ability and grit to defend themselves and refuse to participate in the marriage against the pleasure of their custodians or parent- Clause (2) of Section 11 raises a presumption. It stipulates that any person, who is in charge of a child who was married off, is presumed to have negligently failed to prevent the child marriage. The presumption is a rebuttable one and may be defended if the person proves that he could not have prevented the marriage or failed at preventing it, having tried to do so to the best of their ability. This principle is only applicable to an offence under Section 11. (Para 61-62) – 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. While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination.- Section 12 – Section 12 provides that the marriage in these instances is non est in law and has no legal standing from its inception. The declaration of the provision is mandatory and removes the option from the hands of the party to consent to the marriage after its commission. Therefore, all marriages done by taking or enticing a child, compelling by force or deceit or selling are void. Section 12(c) further stipulates that where a child marriage occurs and after the marriage, the minor is sold or trafficked or used for immoral purposes is void. Therefore, even when the commission of marriage was not through force or deceit the marriage would be void from the inception based on the acts performed after the marriage takes place. (Para 64-65)