Explained: Personal laws in marriage

A Bill proposing to increase the age of marriage for women, and ensuring harmony in the age limit across religions, was introduced in Lok Sabha this week and then referred to a Parliamentary Standing Committee. Both aspects of the proposed amendment to the Prohibition of Child Marriage Act, 2006 have raised a debate on female autonomy and the application of personal laws in marriage.

What does the amendment propose?

The amendment proposes three changes.

First, the law proposes to increase the minimum age of marriage for a woman. By amending the definition of a “child” in Section 2(a) to mean “a male of a female who has not completed twenty-one years of age”, the Bill makes the minimum age of marriage same for both men and women. Currently, it is 18 years for women and 21 for men.

Second, it also increases the window for a “child” to file a petition to declare a child marriage void. Under the law, child marriages, although illegal, are not void but “voidable.” A child marriage can be declared null and void by a court when either party to the marriage files a petition under Article 3(4) of the 2006 Prohibition of Child Marriage Act. A “void” marriage, as opposed to a divorce, in legal terms, would be as if the marriage had never taken place in the first place.

“The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority,” Section 3(4) currently reads, allowing a woman to file for declaration of the child marriage as void before she turns 20 and for the man before he turns 23. After that, the marriage would be deemed valid and the couple can file for divorce.

The Bill proposes to extend this window for both the woman and the man to five years after attaining majority. Since the age of majority is 18 for both, this would mean that either the man or the woman can file a petition to declare the child marriage void before they turn 23, or until two years after reaching the new minimum age of marriage.

The third, crucial change proposed is the introduction of a “notwithstanding” clause. This essentially clears the decks for equal application of the Prohibition of Child Marriage Act across religions, notwithstanding any customs.

What is the opposition to the amendment?

The key argument in favour of raising the age is in correlation to health and social indices such as infant mortality, maternal mortality, and nutrition levels among mothers and children. However, since the age of majority is 18, increasing the age of marriage is viewed as a paternalistic approach by the state in personal matters of an individual.

Additionally, the application of the child marriage law across faiths sets the stage for a debate on the limits of personal law.

In Lok Sabha, E T Mohammed Basheer of the Indian Union Muslim League said the Bill was unconstitutional and was violative of Article 25 of the Constitution, which guarantees the freedom of conscience and free profession, practice and propagation of religion.

Another criticism is that increasing the minimum age of marriage will further push many marriages to the brink of illegality and marginalise vulnerable sections. Since the existing Act does not make child marriage automatically illegal, the increase in minimum age might not really benefit women. It could bring those who aid the marriage of a woman over the age of 18 under the ambit of a law that sanctions imprisonment of up to two years.

Has the law not been applied to all religions earlier?

The 2006 law is considered a special legislation with a stated objective to prevent child marriages. While special legislation is applied over ‘general law’, experts have often pointed out that the Prohibition of Child Marriage Act suffers from a lacuna since it does not explicitly say that the law would trump general law.

Since Muslim law recognises “attaining puberty”, which is legally assumed at 15 years, as the minimum age of marriage, it raises questions as to whether the child marriage law can apply to Muslims.

The Statement of Objects and Reasons in the Bill states: “In order to address the issues of women in a holistic manner, as a measure for empowerment of women, gender equality, increasing the female labour force participation, make them self-reliant and to enable them to take decisions themselves, the Bill, inter alia, proposes to — (i) amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage….”

How have courts interpreted the child marriage law so far?

High Courts have differed in their interpretation of the law.

The Karnataka High Court, in a decision in the case of Seema Begaum D/O Khasimsab vs State Of Karnataka (2013), said that “no Indian citizen on the ground of his belonging to a particular religion, can claim immunity from the application of the P.C.M”.

In February this year, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man), holding that theirs was a legal marriage under personal law. The HC examined provisions of the Prohibition of Child Marriage Act but held that since the special law does not override personal laws, Muslim law will prevail.

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Has there been overriding of personal laws before?

There are several instances of personal law being replaced with secular law that applies to all religions equally.

For example, in Shabana Bano v Imran Khan (2009), the Supreme Court held that a divorced Muslim woman is entitled to claim the maintenance from her husband under Section 125 of the Criminal Procedure Code even after the expiry of iddat (mourning) period, as long as she does not remarry. Under Muslim law, the award of the maintenance is provided only during the iddat period.

In 1996, the Supreme Court agreed with a Kerala High Court view that even though the Ecclesiastical Court can grant a divorce or nullify a Christian marriage, the Church cannot solemnise a second marriage of a party till the marriage is dissolved by a court.

In Shayara Bano v Union of India (2017), the Supreme Court declared the practice of instant triple talaq as unconstitutional although it is provided for under Muslim law.

In a 1960 case, the Supreme Court held that the Transfer of Property Act, 1882 would apply over Muslim law on transfer of property.

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