by Mouli Banerjee
It has been argued that law itself, as a political product, doesn’t always have the capacity to pursue ‘justice’, given the qualification that “while many of the juridical forms of power continue to persist, these have gradually been penetrated by quite new mechanisms of power that are probably irreducible to the representation of law”. Child Marriage, as a social practice, is one such example, where laws, even if inadequate, have been put in place, but somehow the practice has continued for decades. However, it is important to understand the legal structure in place against child marriages, in order to tackle the issue properly.
Prohibition of Child Marriage: The System in Place
The current law in place to tackle the crime of child marriage is the Prohibition of Child Marriage Act, 2006 (PCMA). It defines a child, if female, as one who has not completed 18 years of age and if male, as one who has not completed 21 years of age. It includes punitive measures against all those who perform, permit and promote child marriage. The law also has a provision for annulment of a child marriage and gives a separated female the right to have a residence and maintenance costs (from her husband if he is above 18 years of ages, and from her in-laws, if the husband too is a minor), until she is remarried.
However, there are major loopholes in the PCMA.
Most importantly, it makes a distinction, declaring some marriages void (in cases where the marriage is conducted by use of force, fraud, deception, enticement, selling and buying or trafficking) but in other cases simply giving the option that one may declare one’s marriage “voidable” even up to two years after attaining adulthood. This is a contradiction, for if the law doesn’t see a ‘child’ as capable of consent, then every act of child marriage must by definition involve force, fraud, deception or enticement, and thus, must be void. It is obvious that most child marriages, once solemnised, will not be reported and hence will go unchecked.
India is now a part of the UN Resolution on Child, Early and Forced Marriage, and several Action Plans and Policies fielded by the Ministry of Women and Child Development in the last decade have also been geared towards this end.
In this context, it becomes crucial to redefine child marriage as a form of severe gender violence, thus understanding the practice as not just a restriction of a girl child’s choices in marriage, but as violence inflicted on female bodies and minds.
Child Marriage as Gender Violence
The United Nations defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”
A quick look at the social and health consequences of child marriages promptly validates the assumption of child marriage as an active act of gender violence on many levels.
Threat of violence, coercion or ‘arbitrary deprivation of liberty’
As explained in the previous section, the very fact that a child is not seen as capable of consent makes child marriage an act of coercion. It restricts a girl’s choices on both social and physical levels by taking away her liberty to choose her age of marriage and robbing her of her reproductive rights, long before she has even understood them clearly.
Current statistics suggest that as of 2013, 43% of women aged 20-24 were married before 18. Moreover, UNICEF suggests that there are 23 million child brides in India, and this makes for approximately 40% of the child brides globally.
‘Physical, Sexual or Mental Harm’
The Danger of Marital Rape
While marital rape is a threat all married women face, and legal debates pushing for the criminalisation of marital rape still rage in India, in the context of child marriage, this can be viewed as a contradiction in laws. The Criminal Law (Amendment) Act, 2013, amended Section 375 of the IPC to redefine ‘rape’, but Exception 2 to this amendment states that sexual intercourse or acts by a man with his own wife, the wife not being under 15 years of age, is not rape. Thus, all married women, between the ages of 15 and 18, who are child brides under the PCMA 2006, if subjected to marital rape, cannot consider it a criminal violation. This brings into question the legal concept of ‘consent’ which is considered implicit in a marriage and is incidentally the argument given for not criminalising marital rape.This is in contradiction to the assumption that a ‘child’ is not capable of sexual consent and violates the PCMA 2006 and the Juvenile Justice (Care and Protection of Children) Act, 2000 (which defines a ‘child’ as any person below 18 years).
This contradiction is currently being contested in the Supreme Court by a PIL filed by Independent Thought (www.ithought.in) in a Writ Petition [Independent Thought vs. Union of India (W.P. Civil 382 of 2013)].
Severe Health Consequences of Child Marriages
Apart from the health concerns implicit in any act of sexual violence upon a woman, Child Marriage also has specific health consequences that mandate special attention.
The vicious cycle of Fertility and Sterilisation
A study conducted by NCBI in 2009 suggests that a significantly larger number of women in India married as minors are less likely to use contraception in their first year of marriage (thus leading to higher fertility), when compared to women who married as adults . They have limited or no access to contraception and also displayed higher incidence of rapid repeat childbirths, higher unwanted pregnancies and hence, higher rates of pregnancy terminations (which has health complications of its own). Furthermore, women who have undergone multiple childbirths at a young age are also more likely to get sterilised. Approximately, one in ten women reporting both child marriage and sterilization (9.7%) were sterilized prior to age 18 years. 
Thus, child marriage has considerable immediate and long-term impact on the reproductive health of women’s bodies, often causing permanent damage to their health.
Higher Rates of Death at Childbirth
Young girls are at greater risk of death at childbirth than older women. The data from the International Centre for Research on Women shows that girls who are younger than 15 years are five times more likely to die in childbirth than women who are in their 20s. Pregnancy is seen consistently to be one of the leading causes of death for girls ages 15 to 19 worldwide.
Premature labour, Still Births children and New Born Deaths
UNICEF estimates that rates of still births and new-born deaths are 50% higher among mothers under 20 than in mothers who give birth in their 20s.  Child marriage often entails a very violent introduction into sexual relations, which can cause long-tern health issues for women.
This is a dangerous medical condition in which a fistula or a hole develops between the rectum and the vagina or the bladder and the vagina, due to severe or failed childbirth, when proper medical care is not given. Young mothers are consequently at much higher risk of developing this otherwise-preventable condition. A report by the Ministry of Women and Child Development shows that as of 2013 over two million girls and young mothers are affected by this complication in India.
Risk of HIV and other Sexually Transmitted Diseases
Since child brides are often married to older, sexually experienced men, they are also at risk of being affected by sexually transmitted diseases.
Thus Child Marriage is an act of gender violence with severe health consequences, which also has myriad social implications. Marrying as a minor often stultifies one’s education, meaning not just abrogated mental growth but also implying financial dependence on the husband, thus facilitating further oppression of women who are married off before adulthood.
While eradicating the evil of child marriage has been an integral part of the government’s plans- it is a part of the current 12th Five Year Action Plan, the National Population Policy 2000, the National Youth Policy 2003, the National Adolescent Reproductive and Sexual Health Strategy and the National Plan of Action for Children 2005- a lot still needs to be done. Schemes such as the Rajiv Gandhi Scheme for Empowerment of Adolescent Girls (SABLA) aim at eradicating the practice, but as government estimates show, the incidence of child marriage in India has gone down by only around 5% between 1995-96 and 2005-06. This is proof of how much more needs to be done, to increase social awareness and eradicate this practice.
 Nivedita Menon. “Rights, Bodies and the Law: Rethinking the Feminist Politics of Justice.”. Gender and Politics in India. New Delhi: OUP, 1999. 262-291.
Prohibition of Child Marriage Act, 2006 (PCMA). http://wcd.nic.in/cma2006.pdf , accessed in November 2014.
 ‘Child Marriage in India: Achievements, Gaps and Challenges’. HAQ: Centre for Child Rights. http://www.ohchr.org/documents/issues/women/wrgs/forcedmarriage/ngo/haqcentreforchildrights1.pdf
 ‘Violence Against Women’, Media Center, Updated on October 2013, accessed in November 2014. http://www.who.int/mediacentre/factsheets/fs239/en/
 Cf. ‘National Strategy Document on Prevention of Child Marriage, Ministry of Women and Child Development. http://wcd.nic.in/childwelfare/Strategychildmarrige.pdf (page 1) Data http://www.unicef.org/protection/files/Progress_for_Children‐No.8_EN_081309(1).pdf
 Independent Thought vs. Union of India (W.P. Civil 382 of 2013).http://www.ithought.in/download/2014/PIL-Short-Note.pdf
 Donta Balaiah, Anita Raj, Niranjan Saggurti,Jay G. Silverman. ‘Prevalence of Child Marriage and its Impact on the Fertility and Fertility Control Behaviors of Young Women in India’. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2759702/
 Cf. ICRW, http://www.icrw.org/child-marriage-facts-and-figures
 WHO media centre: ‘Child marriages: 39 000 every day’. http://www.who.int/mediacentre/news/releases/2013/child_marriage_20130307/en/
 ‘National Strategy Document on Prevention of Child Marriage . http://wcd.nic.in/childwelfare/Strategychildmarrige.pdf
Mouli Banerjee is currently a fellow with PRS Legislative Research’s Legislative Assistants to Members of Parliament programme. A post graduate in Literature from Delhi University, Mouli is a proud Feminist and LGBTQ rights supporter.