Context: The Assam Government recently launched a crackdown on child marriage, arresting over 3000 people involved in child marriage so far. The arrests have resulted in protests by women in the districts where they had taken place, as government action has left families separated and without a stable source of income.
- The crackdown was initiated in response to over 4,100 FIRs registered across the state, and a cabinet sub-committee has been formed to finalize a Rehabilitation Policy within 15 days for victims of child marriage.
- Child marriage is a persistent problem in India, with an estimated 27% of girls being married before turning 18, the legal age of women in India for marriage.
Laws involved in these arrests
- The Protection of Children from Sexual Offences Act, 2012 (POSCO)
- The Protection of Children from Sexual Offences Act, 2012 (PCMA)
Major provisions of POSCO
- Sexual assault under POCSO is a non-bailable, cognizable offence.
- Child marriage under 14 is presumed to be sexual assault. Nonpenetrative sexual assault carries a minimum imprisonment of 3 years, extendable up to 5 years with a fine.
- Mandatory reporting obligation under POCSO Act requires reporting of sexual offences against children to the police or Special Juvenile Police Unit. Doctors must also report cases where minor girls seek medical assistance during pregnancies or for termination of pregnancies.
Major Provisions of PCMA
- Child marriages are illegal but not void. They can, however, be voided at the option of the minor either through their guardian or by themselves once they attain adulthood.
- The Act sets the minimum marriageable age at 18 years for women and 21 years for men.
- Child marriage is punishable by rigorous imprisonment of up to 2 years, a fine of up to one lakh rupees or both.
Marriageable age under Muslim personal law
- Under Muslim personal law, girls who attain puberty are considered to be of marriageable age. This is usually considered to be 15.
- This incongruence between Muslim law and the PCMA has led to legal confusion and inconsistency.
Why this crackdown is being criticized
- The arrests have taken place disproportionately in 10 Muslim-majority districts of Assam, which many believe is a targeted step.
- Several poor and single-income families have been left without a stable source of income and are more vulnerable through this recent slew of arrests.
- The application of this law has been done retrospectively in many cases, where the wife is no longer a minor, and in some instances even above the age of 30.
- Child marriage is voidable at the option of the party who was minor at the time of marriage. On attaining adulthood, if an annulment is not filed for, then the marriage remains valid, and the State must not apply the Act retrospectively or interfere with the family unit.
- The lack of access to schools in these districts due to severe flooding in the Monsoon, and generational poverty have been major factors contributing to the high number of child marriages. While detaining the breadwinners of the family will worsen the situation instead of curtailing it.
- Government is misusing public health data to arrest the people instead of genuine FIR by the victims.
- Under PCMA, no women can be imprisoned, but the Assam government is also detaining women.
- The law should not be used as a political weapon to target any community
- The law should not be implemented retrospectively in case of attaining adulthood and the involved party is not filing an annulment.
- Government should focus on availing of quality education.