Gudda-guddi ka khel

Just two weeks ago I had written in this column about the progressive and gender-sensitive court judgment which had commented strongly on the im­p­ortance of giving due credit, in the national Census and gross domestic product, to work done by women within the househo­ld. But this week the Delhi high court has delivered what seems to be a very retrograde judgment which is likely to deliver a serious blow to the hea­lth and development of wo­m­en. Yet, the responsibility for this jud­g­ment cannot simply be laid at the door of the Delhi high court. It is the cumulative result of fa­u­lty laws which Parliament has allowed to remain, and also of the discriminatory and patriarc­h­al nature of our society in general.
On August 11, 2010, the Delhi high court delivered a judgment in a case filed by 18-year-old Jitender Sharma who had “married” 16-year-old Poonam against the wishes of her parents. When the girls’ parents objected to the wedding, Jitender went to court and sought his “wife’s” custody. Amazingly, the court gave custody of the 16-year-old to her “husband” and declared that henceforth 18-year-old Jitender would be her guardian. While delivering its judgment, the division bench drew a distinction between cases where child marriage is forced by parents which, according to them, was a “scourge of society”, whereas minors falling in love, according to them, was “a reality which has to be accepted”. While the bench cautioned the state to educate teenagers about the liabilities of early marriage, they accepted that in modern society teenage marriages were inevitable, due to “the influence of movies, and the impact of Western culture”. They also noted that the boy’s family was willing to accept the girl as their daughter-in-law, and this was an im­portant factor in their decision to allow the girl to stay with her husband, and to turn down the petition of her parents.
In my view this judgment will lead to adverse consequences on the health and well-being of young women in this country. First, it makes a mockery of the Child Marriage Restraint Act 1929, according to which child marriage is prohibited and is punishable by law, and the minimum age of marriage is 18 years for girls and 21 years for boys. The offence of a man marrying a minor girl or abetment of others in the act is punishable with three months’ imprisonment or a fine of Rs 1,000, which, of course, is a laughable penalty and will deter nobody. Similarly, the Hindu Marriage Act makes the same age provision of 18 and 21, but provides that a girl younger than 18 can be married under the Hindu law, with the consent of her guardian (which was not the case here).
The anomaly arises due to the fact that although the law specifically prevents child marriages and has made it a punishable offence, nowhere has it been provided in the law that such a marriage is invalid. This, therefore, means that a marriage conducted in defiance of the law, and punishable by law, is a valid marriage! In other words, if a 70-year-old man marries a 12-year-old girl, he can technically serve a jail sentence of three months, and/or pay a fine of Rs 1,000, and having done so he can go back and force the 12-year-old girl to live and cohabit with him as his wife!
It completely baffles me what exactly the lawmakers had in mind when they did not specify in the law that a child marriage would be ab initio void. However, it is time that Parliament considered this anomaly seriously and took steps to set it right. It is unfortunate that neither the legislature while framing the law, nor the judiciary, gave consideration to the fact that child marriage is actually a grave human right violation of the health, development, rights and, indeed, childhood of a child. In this case, 16-year-old Poonam is herself little more than a child who has by no means reached the fullness of physical or emotional and mental development. Her parents quite naturally objected to the wedding. In the absence of details it is not possible to speculate on the motives of the boy or his parents. But whatever their motivation, it cannot be denied that a 16-year-old girl is by no means ready for marriage, childbirth or assuming the role of a wife. The law, and the court, should not have permitted Poonam to continue in the marriage.
Apart from the purely personal arena, as a society it would be hugely undesirable for us to condone or encourage teenage pregnancies and young mothers. For years now, our policymakers have been grappling with the challenge of balancing the evolution of happy, healthy families and stabilising the country’s population. One of the most important tenets of our population policy in recent years has been to encourage our children to marry after the age of 18 and 21, and to have two healthy children, with proper spacing. If on another track, the legislature and courts condone and legitimise the marriages of 16-year-old girls, there be a gravely adverse impact upon our sensitive, equitable and constructive population stabilisation policies.
The 59th report of the Law Commission said that the validity of child marriage should be left undisturbed as “minor marriages” are still so rampant in In­dia, that rendering them invalid may invalidate 80 per ce­nt marriages in the country. However, with all due respect to the Law Commission, this ap­pears to me to be a grossly inflated estimate of child marriages, and an unacceptable reason to refuse to declare child marriage invalid. In fact, if 80 per cent marriages conducted in In­dia are child marriages, then we are a society in serious trouble.
In the ultimate analysis, the Child Marriage Restraint Act can only be effective when all child marriages are deemed invalid by the law.

Jayanthi Natarajan is a Congress MP in the Rajya Sabha and AICC spokesperson.
The views expressed in this column are her own.