Parliament may consider banning child engagement in India

NEW DELHI: Stating that there were areas in the Prohibition of Child Marriage Act, 2006 (PCMA) that go against the very purpose of the law and need to be addressed, including child betrothal – engagement in childhood and marriage at different times – and the confusion over precedence between the PCMA and different personal laws, the Supreme Court on Friday (October 18) suggested to parliament to consider banning child betrothal that could be used to escape punishment under the PCMA.

While issuing a series of directions to curb the practice of child marriage, which is still prevalent in many parts of the country, a bench comprising Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, in a judgment said: “The Parliament may consider banning child engagements that can be used to escape punishment under the PCMA.”

Urging the parliament to ban child betrothal – engagement in childhood leading to marriage later, Chief Justice Chandrachud, speaking on behalf of the bench, said, “We note that although the PCMA seeks to ban child marriage, it does not stipulate betrothals . Marriages fixed in a child’s minority also have the effect of violating their rights to free choice, autonomy, agency and childhood. This takes away their choice of partner and life paths before they mature and form the ability to assert their agency. International law, such as CEDAW (Convention on the Elimination of All Forms of Discrimination against Women, 1975), stipulates against the betrothal of minors.”

Avoiding any judicial slowdown in filling the gaps in the PCMA in the absence of a constitutional challenge or a case being argued to that effect before him, the Chief Justice who authorized the trial said: “In the course of this trial, we have charted the full breadth of the law against child marriage. The PCMA is the central legislation that governs the issue on the subject. In light of the constitutional guarantees attributed to children, we observe certain gaps in the PCMA.”

On the issue of PCMA taking precedence over different personal laws, the court noted that parliament is already involved in the matter as the proposed 2021 amendment to the Prohibition of Child Marriage Act, 2006 is now before the Related Standing Committee of the Department for Education, Women, Children, Youth and Sport that expressly establish the preponderant effect of the statute on various personal laws.

The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in Parliament on December 21, 2021. The court referred to the note that the central government – ​​the Ministry of Women and Child Development – ​​submitted after the judgment has been reserved and the responsibility passed on to the court to meet the PCMA with precedence over personal laws.

Referring to the note which stated: “There are conflicting pronouncements by various High Courts on the precedence of the Prohibition of Child Marriage Act (PCMA), 2006, over personal laws. Therefore, the Honorable Court may consider issuing directions declaring that the PCMA will prevail over the personal laws governing marriage. …”

The judgment delivered today noted that the details of the conflicting opinions of different High Courts were not provided in the submissions of any of the parties in this case.

The series of guidelines issued today included mandatory appointment by States/UTs of sole officers responsible for discharging CMPO functions at the district level, establishment of a Specialized Police Unit (SPUs), establishment of a Special Prohibition Unit of Child Marriage (SCMPU), empowering magistrates to take suo motu action and issue preventive injunctions, explore special fast-track courts for child marriage cases, and so on.

The court directed its registry to transmit a copy of the judgment to the secretaries of all central ministries concerned, including the Ministry of Home Affairs, the Ministry of Women and Child Development, the Ministry of Panchayati Raj, the Ministry of Education, the Ministry of Information and Broadcasting, the Ministry of Rural Development, statutory authorities, institutions and organizations under the control of the respective ministries.

He further directed the Ministry of Women and Child Development to distribute the judgment to the Chief Secretaries/Administrators of all States and Union Territories as well as NALSA and NCCPR for strict compliance with the instructions. – The Statesman/ANN