What is the minimum age of marriage?
Personal laws that govern marriage and other personal practices for communities prescribe certain criteria for marriage, including age of the bride and groom. For example, Section 5(iii) of The Hindu Marriage Act, 1955, sets a minimum age of 18 for the bride and 21 for the groom. This is the same for Christians under the Indian Christian Marriage Act, 1872 and the Special Marriage Act.
For Muslims, the criteria is attaining puberty, which is assumed when the bride or groom turns 15.
Why is there a minimum age?
Essentially to outlaw child marriage. This is done through special legislation such as the Prohibition of Child Marriage Act, 2006 and the Protection of Children from Sexual Offences Act, 2012. Under the Child Marriage Prevention Act, any marriage below the prescribed age is illegal and the perpetrators of a forced child marriage can be punished.
What happens to such marriages once detected?
Child marriages are illegal but not void. It is voidable at the option of the minor party. This means the marriage can be declared void by a court only if the minor party petitions the court. This flexibility is kept to ensure that the rights of the minor, especially the girl, is not taken away in marital homes later on.
However, if a court finds a minor was coerced into marriage by parents or guardians, the provisions of the Juvenile Justice (Care and Protection of Children) Act come into effect to keep the custody of the minor until he or she attains majority and can make a decision on the marriage.
What laws will have to be changed to raise the minimum age of marriage?
First, the age limit in the Prohibition of Child Marriage Act will have to be changed. The government had indicated this will be followed by necessary changes in personal law. The Hindu Marriage Act, the Indian Christian Marriage Act and the Special Marriage Act will also have to be change consequently.
However, changes in the Muslim law could raise significant legal issues.
What are these legal issues?
The Prohibition of Child Marriage Act does not contain any provision that explicitly says the law would override any other laws on the issue. And there is an obvious discrepancy in the letter of the law between the Prohibition of Child Marriage Act and Muslim law on the minimum age of marriage.
For example, although the marriage of a 16-year-old girl deemed to have attained puberty is not considered invalid in Muslim law, it would be a child marriage under the Prohibition of Child Marriage Act.
Additionally, the Supreme Court, in a landmark 2017 verdict, has held that in case of a minor wife, the law recognises marital rape. Husbands of minor women, as opposed to husbands of adult women, cannot enjoy the blanket immunity that the Indian Penal Code provides in Exception 2 to Section 375 against charges of marital rape.