The Rajasthan Assembly on Friday mandated that all marriages including child marriages must be registered within 30 days of the wedding taking place. However, Rajasthan's amended act has caused consternation among the civil rights society even as the Opposition, led by the BJP, staged a walkout from the Assembly on Friday after the bill was passed.
The Ashok Gehlot-led Congress government has defended its stance saying that the new act does not legitimize child marriages.
In India, child marriage means the union of a bride and a groom who are under the age of 18 and 21 years respectively.
BOOM looks at Rajasthan's new legislation on child marriages and why it is perceived to be problematic.
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What is the Rajasthan Compulsory Registration Of Marriages (Amendment) Act, 2021?
The new bill mandates the compulsory registration of all marriages including child marriages within 30 days of the event taking place. In the event the newly married couple is not of legal marriageable age then the parents of the guardians of the same must register the nuptials in accordance with the law.
The act also expands the scope to empower block-level officers to register marriages. In this way, marriages may be registered in the same jurisdiction where the couple has lived for more than 30 days.
The new act plugged legal issues arising out of the old 2009 act where the bride had to be 21 years of age to register the marriage. In India, the legal age at which girls can marry is 18 years.
If one of the parties to a marriage dies, then the new act also allows a widow, widower, parents of either party, an adult child or in case of child marriages, the parents or the guardian to register marriages within 30 days of their death.
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Why is the new law causing an uproar?
Rajasthan's amended act has caused great consternation and confusion among sections of society. The Opposition has accused the Ashok Gehlot-led government of promoting child marriages. However, Gehlot's government insists that the amended law only made technical changes to existing legislation. "The bill does not say that child marriage is valid. The bill says that after marriage, only registration is necessary. It does not imply that child marriage is valid," Parliamentary Affairs Minister Shanti Kumar Dhariwal had said on the floor of the house.
Rajasthan's new law amends its 2009 Marriage Registration Act to allow parents and guardians of the underaged couple to register the marriage. Both the 2009 and the new 2021 act mandated the registration of child marriages. In the 2009 act, couples over the age of 21 years could apply for registration of their marriage. But in the 2021 amended act, 18-year-old brides can now apply for registration. The age of the groom remains the same at 21 years old.
A 2006 Supreme Court verdict mandated the registration of all marriages. Even though there is no central legislation for the same, several states have introduced laws to govern this rule. The Rajasthan government has also relied on this verdict to pass its legislation.
Child marriage in India is not illegal, but voidable
The Prohibition of Child Marriage Act (PCMA), 2006 criminalises child marriages. However, the marriage itself is not illegal or invalid.
Such a marriage is voidable, which means either the bride or the groom can file an appeal to declare the marriage void. An underaged bride or groom can appeal against the union before a competent authority and further action can be taken. Government officials can take necessary legal action once the fact of child marriages comes to their notice at the time of registration of such marriages.
A bride/groom can also appeal against their child marriage once they turn adults. However, this is a time-bound relief that can be availed only until two years after they reach marriageable age. A recent Punjab and Haryana High Court order ruled that a child marriage becomes valid if steps are not taken to declare it void after the party turns 18.
Two states—Haryana and Karnataka—have brought state-specific amendments into the PCMA, 2006 making all child marriages void.
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Nearly 1.5 million Child Brides in India: A study
Statistics suggest there are nearly 1.5 million child brides in India. However, government data says there's a declining rate of child marriages. Rajasthan too saw a sharp decline in numbers from 65% in 2005-2006 to 35% in 2015-2016, even as data from the National Crime Records Bureau (NCRB) found that in 2020, 785 cases were registered under the Prohibition of Child Marriage Act, a staggering 50% increase from the previous years.
Civil rights activists believe Rajasthan's new law has not only been brought in haste but also fails to address the issue of child marriages.
"Child marriages are a social reality; we cannot ignore them. It would be counter-productive to link the issue of child marriage with the registration of marriages," Yogesh Vaishnav, with NGO Vikalp told BOOM.
"What was the need to bring this legislation in such a hasty manner? Even though laws mandating registration of marriages already exist, not much has come out of it since very few marriages get registered in Rajasthan," activist Indira Pancholi said. In this scenario, it will be next to impossible to register child marriages, she added.
Pancholi, a community activist associated with the Mahila Jan Adhikar Samiti in Rajasthan, closely works on the issue of child brides. She said Rajasthan's new law is premature and has no added value.
Vaishnav's views echoed Pancholi's and he added that marriage registration is done only if either spouse wants to claim benefits like a job.
"Parents will not register the marriages of their minor children because then the government can take action against them under the PCMA. Even minors who wish to stay married cannot apply for registration because they need an adult to file their application," Pancholi told BOOM.
"The government could have waited because there's a plea that's pending in the Supreme Court seeking to declare all child marriages null and void. Rajasthan could have also waited for the Centre to decide on a report which proposes to increase the marriageable age to 21," she added.
Yogesh Vaishnav, an activist associated with NGO Vikalp says, "Since child marriages are not illegal, there is nothing that prevents the registration of the same. In this manner, if the registration is done in accordance with the law, then either party will be entitled to seek legal benefits available to them."
"Governments should focus on protecting the rights of young boys and girls by providing them with all the necessary opportunities for their development and work on root causes," Pancholi said.
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