Child Marriage and Karnataka Amendments: Re-Engaging with the Debate on Voidability

July 31, 2017 | Brototi Dutta

On 26th April, 2017, the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 was passed, declaring child marriages as void ab initio or invalid in law.  This was the culmination of efforts at the state level, including a specific recommendation of the Justice Shivaraj Patil Committee (2011), which was set up to review the status of child marriage in Karnataka.

 

The central Prohibition of Child Marriage Act of 2006 (“PCMA”), recognizes child marriage as valid marriage, but “voidable” at the option of the minor contracting party (Section 3, PCMA of 2006). Recognition of child marriage as ‘voidable’ brings with it all the consequences of a valid marriage, including of conjugal access, and continues to provide impunity to the practice. The reality is few women exercise the option of filing a decree of nullity in the court to void their marriage, once it is consummated (Pallavi Gupta, Economic & Political Weekly).  Courts have also been reluctant to declare child marriage as void marriage, unless the facts of the case fall conclusively within the circumstances provided under Section 12 of the Act (Jitender Kumar Sharma; and Association for Social Justice  & Research v. Union Of India and Ors.). This reluctance to address the issue of “voidability” permeates the entire legislative and policy discourse on child marriage.

 

More than the married girl, it was concern for ‘illegitimate’ children of ‘void’ marriages that underlined judgments of various courts on personal laws.  With developing jurisprudence under personal laws, and statutory protections under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the PCMA, 2006, however, this issue has now been addressed to a large extent.  In the context of the Karnataka amendments, the available statutory protections under the PCMA and their interpretation through case law will now apply to ‘void’ child marriages. For example, children of such void marriage are deemed legitimate (Section 6, PCMA), and have right to inherit property of the parents, both self-owned and ancestral, if they are Hindus (Supreme Court in Revannasiddappa and Anr. v. Mallikarjun & Ors.). Courts can also grant maintenance and residence to the woman in a void child marriage (Section 4, PCMA). The order continues to operate till her remarriage.

 

Under the PCMA, these reliefs are granted along with a decree of nullity for a ‘voidable’ marriage. With child marriage declared void ab initio in Karnataka, however, there should be no legal requirement to obtain a decree of nullity from the court (M.M. Malhotra v. UoI & Ors.). Although the Karnataka Amendment Act of 2016 does not clarify this procedural aspect, existing case law suggests that a girl victim of child marriage should be able to file for relief of maintenance and residence under Section 4 of the Act, without first seeking a decree of nullity.

 

Declaring child marriages ‘void’ reiterates zero tolerance of the practice. Such norm setting is valuable and has been on the cards but action was taken in this regard. International human rights instruments such as the CEDAW state that marriage of a child shall have no legal effect (Article 16).  By amending the PCMA and declaring child marriages void, Karnataka has taken a bold step. Its impact will be played out in courts in the coming years and will be interesting to see if this brings down the actual numbers of under-age marriages in the State.

Brototi Dutta

Senior Associate

View profile