A Customary Analysis Of Child Marriage In India

Amitava Dutta, BBA LLB, Ramaiah College of Law

ABSTRACT

Be it the case with a boy or a girl, child marriage is a major social concern and complex and multifaceted issue that has profound consequences for the lives of millions worldwide. The phenomenon is deeply rooted in poverty, cultural norms, gender inequality, and lack of access to education and opportunities. Despite global efforts aimed at do away with this human rights violation, child marriage still persists – National Family Health Survey (NFHS)-III estimates that of women in India, aged 20-24, were married before the age of 18, This figure stood at in rural areas and 30% in urban areas. It goes without saying that this practice is undesirable in the modern society and the general consensus amongst people is that no matter what the situation is a child if married before he attains majority constitutes to exploiting the child, revoking their freedom of expression and right to choose a partner themselves. However, we cannot effectively curb a practice we consider as undesirable if we do not look at the broader picture that includes analysing its roots and how it developed over time. What is considered to be as a fundamental violation of one’s foremost rights, may have been looked at differently in the past.

Any legislation that aims to curb a prevalent social custom and draws its own origins from the will of the community needs to be analysed and understood in accordance to the theories of customary jurisprudence. Thus, child marriage and the contemporary legislation too should be understood in accordance to such theories in order to understand whether these legislations provide adequate cover in order to curb the proliferation of this practice any further.

This work shall aim to analyse firstly the origins of child marriage in the Indian society, we shall then look at what led to the formulation of Child Marriage Restraint Act, 1929 and subsequently the Prohibition of Child Marriage Act, 2006. Lastly, we shall see certain modern trends emerging as exceptions to the established notion of requirement to curb child marriage.

Keywords: Child, Child Marriage, Custom, Sarda Act, PCMA, Minor.