In a move that many social activists find regressive and unconstitutional, the Rajasthan assembly recently passed a bill making child marriage registration mandatory in the state. This was strongly opposed by child right activists and social workers. Chief Minister Ashok Gehlot has decided to re-examine the bill.
Child marriages are flourishing despite people knowing it is criminal. Photo: By arrangement
Varsha is 16 years old and lives with her parents in a village in Jodhpur district in Rajasthan. There was fear in her voice as she told Gaon Connection that she would soon have to join her husband in her in-laws’ home.
Varsha has no recollection of it, but she was married off when she was a year old. All her life her parents have been waiting for her to ‘grow up’ so they could perform her gauna, a ceremonial send off from her parents’ home to her husband’s.
But, Varsha does not want to join her husband as she has heard he is involved in criminal activities. “If the marriage is not annulled, my life will be hell,” the teenager said in despair. She is trying to find ways to get out of her ‘marriage’.
Varsha’s home state Rajasthan is infamous for child marriage. According to the 2018 report of the National Commission for Protection of Child Rights (NCPCR), Rajasthan is among the top 12 states in child marriages in India. While the percentage of child marriages in the country stands at 11.9 per cent, in Rajasthan it is 16.2 per cent.
The COVID19 pandemic has made matters worse as there have been reports of an increase in child marriages in the past one-and-a-half years.
And the matter has got further complicated as last month, on September 17, the Rajasthan government passed a bill in the state assembly amending the Rajasthan Compulsory Registration of Marriages Act, 2009.
The new amendment stipulates that in case of a marriage between a girl less than 18 years old and a boy less than 21 years of age, their parents or guardian would have to notify the administration within 30 days of the wedding. As per the central government’s Child Marriage Restraint Act, 1929, the minimum age of marriage in India for girls is 18 years and boys is 21 years.
Rajasthan’s new bill has been passed to amend, inter alia, Section 8 of the Compulsory Registration of Marriages Act 2009. It will also give authority to the government to appoint an Additional District Marriage Registration Officer and Block Marriage Registration Officer to register marriages.
But, this amendment has led to an uproar, not just within the state but across the country as social activists call it regressive and unconstitutional.
There were loud protests when the bill was passed on September 17, with the opposition calling it a “black day”. Legislators from the Bharatiya Janata Party (BJP) staged a walkout and even Sanyam Lodha, Congress-supported Independent MLA opposed the bill.
Instead of making the state child marriage-free, the new law was in effect giving child marriages a ‘legal sanction’ by registering them, said concerned activists.
“Rather than making child marriages null or void, which is the need of the hour, the government is encouraging it through this law. It will make the annulment of child marriages tougher,” Amitosh Pareek, lawyer at the Rajasthan High Court, who has filed a petition against the law in the High Court, told Gaon Connection. “Currently, according to Indian law, child marriages are an offense, but not illegal,” Pareek added.
However, Shanti Dhariwal, Rajasthan’s parliamentary affairs minister defended the bill by saying that it did not render child marriages valid, but only mandated registration. If the district collectors wanted to, they could still take action against child marriages, he declared.
“A marriage certificate is a legal document, in the absence of which a widow won’t receive the benefits of any government scheme,” the parliamentary affairs minister reiterated.
Because of the uproar against the new amendment, Chief Minister Ashok Gehlot recently said that the state has decided to have a re-examine the new law on mandatory registration of child marriages and will get it scrutinised by experts.
Varsha is finding it hard to break-free from her child marriage. “The judge saheb asked us to produce a photograph of the marriage which we don’t have,” she said.
The marriage certificate that is required now is an outcome of the Rajasthan government’s recent amendment to the Rajasthan Compulsory Registration of Marriages Act, 2009.
Kirti Bharti, founder of the Jodhpur-based Saarthi Trust, that helps prevent child marriages by educating girls about their rights, came to Varsha’s rescue and they are trying to get the marriage annulled. Bharti is also credited with enabling the first annulment of child marriage way back in 2006.
“The victims of child marriage who are fighting for annulment are eager to know about their future,” Bharti who has annulled 43 child marriages so far, told Gaon Connection. “Varsha’s case is definitely one of its kind,” she added.
According to UNICEF, each year at least 1.5 million girls under 18 years of age get married in India, which makes it home to the largest number of child brides in the world – accounting for a third of the global total. Nearly 16 per cent of adolescent girls aged 15-19 years in the country are currently married.
Explaining the background of the Indian marriage act, Pareek, lawyer at the Rajasthan High Court, said: “When the issue of child marriages was first raised in 1929, the Child Marriage Restraint Act or the Sharada Act came into being. At that time, the marriage of girls under the age of fourteen, and that of boys under eighteen, will be declared null or void.”
Then, in 1978, an amendment was made that changed the lawful age of girls from 15 to 18 years and that of boys to 18 years to 21 years. A few years later, the government introduced the Prohibition of Child Marriage Act 2006 in which it repealed the Child Marriage Restraint Act and declared child marriages “voidable” from ‘null and void’, the lawyer said.
“This [September 17 amendment] is like legitimising a crime. This bill shouldn’t be implemented. It will promote the exploitation of children,” warned Priyank Kanungo, chairperson, National Commission for Protection of Child Rights (NCPCR) that has its headquarters in Delhi. “This will not only impact the child marriage act but also the POCSO (Protection of Children from Sexual Offences) Act and Child Justice Juvenile Act,” she warned.
Kanungo told Gaon Connection that the NCPCR has written to the Governor of Rajasthan, apprising him about the law’s position on the bill. The child rights commission has also written to Ashok Gehlot, chief minister of Rajasthan, asking him to reconsider and review the law.
Meanwhile, a plea was filed against the amendment by Delhi-based activist Swati Goel Sharma in the Supreme Court. Another activist Yukthi Rathi, from Delhi, has written to the Chief Justice of India about it. BJP youth wing chief Tejasvi Surya has also asked his Rajasthan unit to stage protests across the state against the new law.
Justifying the law, its supporters say it will enable widows to avail of all government schemes. The law will help in the annulment of child marriage, and registration of the numbers will help in research on the social issue, is how they defend it.
The Rajasthan government has argued that the bill was brought following the Supreme Court’s October 2007 ruling, which said that “all marriages must be registered without any exception for any religion.”
However, as per the child rights experts, the Supreme Court didn’t specify “child marriages” given the fact that it is an offense according to the Indian Constitution, unlike a regular marriage practice.
“Firstly, child marriage isn’t mentioned in it specifically and if you had a doubt, you could have asked for clarification from the Supreme Court before bringing out such a law, since our national law itself calls it a cognizable crime,” Bharti argued.
She went on to question: “How can the government even think about the registration of a cognizable offence like child marriage. If the bill is implemented, it will make the process of annulment tougher.”
Accordion to Bharti, parents will not register a child marriage for obvious reasons, and a girl cannot annul her marriage because of the court’s demand for a marriage certificate.
Child marriages are flourishing despite people knowing it is criminal. According to Yogesh Vaishnav, co-founder of Vikalp Sansthan, an organisation of social workers working towards ending gender-based discrimination and violence, it is a way parents feel they can ensure the girl is married off early enough so there is no danger of an inter-caste marriage or a relationship or an out-of-wedlock pregnancy.
Lack of education and the government’s failure in the sphere, activists pointed out, accelerated cases of child marriage.
According to the 2011 census, the literacy rate of Rajasthan stood at 66.11 per cent, the third lowest in the country. While the male literacy rate was at 79.19 per cent, the female literacy rate was barely more than half, at 52.12 per cent.
“Child marriage numbers increased steeply during the pandemic due to unemployment and, because large gatherings weren’t allowed due to COVID protocols, families believed that it was a good way to save money and marry their ‘burden’ off,” Manoj Kumar, a social activist based in Bikaner, told Gaon Connection.
According to the Centre for Monitoring Indian Economy, Rajasthan’s rate of unemployment has spiked between May 2020 and October 2020. According to their latest report, in the first week of September this year, Rajasthan has the second-highest unemployment rate in India.
“Girls were at home due to COVID restrictions, and gauna also happened in large numbers during the pandemic,” Vaishnav said.
Under these circumstances, can India eliminate the child marriage practice by 2030, which is one of the Sustainable Development Goals adopted by the country at the United Nations?