New Delhi: On 17 September 2021, amid opposition protests and a walkout from the state assembly, the Rajasthan government passed the Rajasthan Compulsory Registration of Marriages (Amendment) Bill, 2021 by a voice vote.
The new law primarily amends section 8 of the Rajasthan Compulsory Registration of Marriages Act, 2009, which now states that “if the bride is under 18 and the groom is under 21”, their parents or guardians must submit a memorandum for registration of marriage within 30 days from the date of marriage.
The state government of chief minister Ashok Gehlot was widely critised: apart from the opposition, child rights activists and civil society alleged that such a law “validates” and “encourages” child marriage.
The Rajasthan government put forward a four-page clarification saying that the new law was no more than a “technical change” aimed at reaching more victims of child marriage and that the amendment is being misinterpreted.
The National Commission For Protection of Child Rights (NCPCR) in a letter, urged the Rajasthan government to reconsider and review the law. A public interest litigation challenging section 8 of the Act has also been filed before the Supreme Court.
But it is a 15-year-old judgement of the Supreme Court that provides the legal rationale for the new Rajasthan law.
Our analysis of the historical context, other laws relating to child marriage, and court precedents indicate that the Rajasthan law is well-intentioned and on firm legal ground but would likely be of little use in stopping child marriage, focussing as it does on punishment rather than prevention.
In searching for a legal solution to an old customary practice that was first outlawed over 92 years ago, the current debate digresses from the issue at hand because it attempts to resolve a complex social issue with punitive action. In most cases, laws are triggered only after the offending act (which it seeks to deter) has already taken place.
A Technical Change
The amended Act and the 2009 Act show that the change in Rajasthan’s law is indeed technical.
While the earlier 2009 Act required parents or guardians to register the marriage “in case parties have not completed the age of 21 years”, the amended Act makes registration by parents or guardians mandatory for brides below the “age of 18 years” and grooms below the “age of 21 years”.
The only change is that the amended Act differentiates between the age of bride and groom.
The onus to register marriages of brides between ages 18 to 21 now lies with the brides, not parents or guardians, according matrimonial agency to brides above 18. For grooms below 21, the position has not changed, and their parents or guardians are responsible for submitting a memorandum for registration of marriage.
The furore over the amended Act appears to be misplaced, in that critics and media houses have overlooked the fact that registration of all marriages, including child marriages, was compulsory even as per the 2009 Act.
Anant Asthana, a child rights lawyer based in New Delhi, told FactChecker that "registration of child marriages were not even prohibited before. So it's incorrect to raise the question whether this new amendment permits registration of child marriages”.
“If that was the debate, then this issue should have been raised in 2009 itself when registration of child marriages was permitted by law,” Asthana said.
The amended section 8 is now in line with the definition of ‘child’ under the central legislation—the Prohibition of Child Marriage Act, 2006—which refers to a child as a person below 21, if male and below 18, if female.
Push For Compulsory Registration Is Not New
The Rajasthan government has claimed that the amended law is based on a 14 February 2006 Supreme Court order in Seema vs Ashwani Kumar, which directed the union and state governments to notify procedures for registration of all marriages.
Critics have argued that the 2006 Supreme Court judgment made no mention of registration of child marriages and that the state should have taken the court’s opinion before bringing the law.
In this case, the National Commission for Women (NCW) had in 2005 filed an affidavit supporting registrations of all marriages. A Supreme Court bench of justices Arijit Pasayat and S H Kapadia, in their judgment, cited excerpts from the Commission’s affidavit: “The Commission (NCW) is of the opinion that non-registration of marriages affects women the most and hence has since its inception supported the proposal for legislation on compulsory registration of marriages.”
“Such a law would be of critical importance to various women related issues such as: (a) prevention of child marriages and to ensure minimum age of marriage..”, the affidavit noted.
In the same case, the court also relied upon a 2017 report of the Law Commission, titled ‘Compulsory Registration of Marriages’, where the Law Commission said compulsory registration of marriages in each state would help in better implementation of already existing laws that aim at preventing child marriage.
The Supreme Court also noted that “without exception, all the states and the union territories indicated their stand to the effect that registration of marriages is highly desirable.”
A reading of the judgment suggests that the court intended child marriages to be registered, so that documentary evidence is made available, which in turn would make it easier to act against child marriages.
In 2019, the same position was reiterated by the Kerala High Court, before which similar rules for registration of child marriages were challenged. Relying on the supreme court’s 2006 judgment in Ashwani Kumar’s case, the court observed that the intent of the supreme court was to direct registration of all marriages, including those solemnized in contravention of the Prohibition of Child Marriage Act, 2006.
The Kerala High Court held that child marriages were not exempted from registration under the state’s Registration of Marriage Rules, 2018, and noted that registration of child marriages would result in better transparency and proof to penalise offenders.
While activists (here, here and here) have argued that making registration mandatory will cause further hurdles in annulments, the Supreme Court in Ashwani Kumar’s case made it clear that non-registration would not automatically invalidate a marriage, keeping a minor’s right to annul or repudiate the marriage intact.
A historical review of reports by non-profit organisations and the Indian government shows that the push for registration of all marriages, including those of underage persons, is not new.
A report by the Centre for Law and Policy Research, a non-profit organisation, suggests “birth and marriage registration are essential in preventing child marriages, as they allow an accurate assessment of the girl’s age at marriage and help in substantiating that the marriage was in fact a child marriage”.
In the National Policy For Empowerment of Women (2001), the Indian government noted that accurate micro data at micro on deaths, birth and marriages is required to address problems of early marriage.
In 2014, a Committee on the Elimination of Discrimination against Women (CEDAW) also urged the government to enact legislation to ensure compulsory registration of all marriages.
The Prohibition of Child Marriage (Karnataka) State Rules, which implemented Justice Patil Committee’s recommendations, detailed procedures for mass marriages to ensure that all marriages were registered and the age of the participants was verified. These provisions also required married children to be produced before child welfare committees.
Rajasthan is not the only state to bring such a law. The Uttarakhand Compulsory Registration of Marriage Act, 2010 also provides for compulsory registration of marriage in cases where the husband or wife are below 18.
Of Partial Illegality: Union Law In Sync With Rajasthan’s
Rajasthan’s Leader of Opposition Gulab Chand Kataria said: "I think this law is completely wrong. The legislators who have passed it have not seen it. Section 8 of the bill violates the present law in force against child marriages.”
“As per the Act (Prohibition of Child Marriage Act, 2006), child marriage is illegal across the country. How can you possibly register a child marriage, which is illegal in the first place. The Rajasthan Bill (now Act) is contrary to the 2006 Act”, remarked Kavita Srivastava, secretary of the People’s Union of Civil Liberties in Rajasthan.
Likewise, news anchor and journalist, Rajdeep Sardesai recently tweeted, “Sunday thought: child marriages are illegal by law.. yet the Rajasthan govt now has passed a bill making it mandatory to register child marriages. Why would you de facto legalise an act which is illegal and regressive? Think about it!”
Based on these comments, it appears that the general perception is that all child marriages are invalid and void as per the Prohibition of Child Marriage Act 2006. While the Act punishes adult male grooms who marry underage girls (section 9), and any person who “performs, conducts, directs or abets” such marriages (section 10), the marriage is, however, not considered invalid.
Indeed, a reading of the provisions shows that the Act accords recognition to child marriage, in that they are not considered void, except in certain circumstances.
Section 3 of the Act states that “every child marriage.. shall be voidable at the option of the contracting party who was a child at the time of the marriage”. As per this section, a petition for annulment may be filed within two years of the concerned party attaining majority.
The Act makes three exception under section 12, saying child marriages can be declared void ab initio (invalid from the start), under certain circumstances:
If the marriage is solemnised when the child is “(a) taken or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes”.
In all other cases, child marriages continue to be valid unless they are annulled through a petition before a court by the concerned minor on attaining majority. In this view, the Rajasthan Compulsory Registration of Marriages Act 2021 is in line with, and not contradictory to, the union legislation.
The courts have frequently reiterated this position of law. In the case of Lajja Devi vs State NCT of Delhi, the Delhi High Court observed that the Prohibition of Child Marriages Act 2006 did not make a child marriage void per se, but only declares it as voidable.
Recently, the bench of Justices Ritu Bahri and Arun Monga of the Punjab and Haryana High Court also held that a child marriage would be valid if child does not declare it void at the age of 18.
While some states, such as Haryana and Karnataka, have amended state laws declaring all child marriages void, the contention that the Rajasthan Compulsory Registration of Marriages Act 2021 is contrary to the union legislation, is flawed.
The Supreme Court in Independent Thought vs Union of India and Anr., urged the Centre and state legislatures to follow the decision of the Karnataka government, which declared child marriage void ab initio through an amendment.
The suggestion was made by the court in 2017 but neither the centre nor any state, besides Haryana and Karnataka, has taken steps to make child marriages completely void.
Legitimising Or Preventing Child Marriages?
Though Rajasthan’s newly amended Act is well-intentioned, its efficacy is contentious because it is unlikely that parents or guardians would come forward to register their children’s marriages, knowing that they could be prosecuted under the Prohibition of Child Marriage Act, 2006 and Protection of Children from Sexual Offences Act, 2012.
As per section 8(2) of the Rajasthan Compulsory Registration of Marriages Act, failure to submit a memorandum in the stipulated 30-day time frame would attract a fine.
Assuming that parents would come forward, as envisioned by the law, there could be two positive outcomes. One noted (here and here) benefit is that it would lead to improved record keeping, on the basis of which the government could align its future policies.
Another potential advantage is that the new law would help child brides access government benefits with less difficulty. However, this would also depend on whether the minor has adequate support to move applications for such benefits.
Madhu Mehra, head of research and training at Partners for Law in Development recently said in an interview with The News Minute: “I don't think the amendment is legitimising child marriages at all, because the Rajasthan Compulsory Registration Act, 2009, does not either bestow validity or invalidity of marriage.”
“The registration signals that marriage has taken place, secures a status for the girl, without declaring the marriage to be valid or invalid”, said Mehra.
The same view was expressed by Kavita Krishnan, the secretary of the All India Progressive Women’s Association, in a tweet, where she said: “All marriages including child marriages were even previously expected to be registered in Rajasthan. Registration need not mean recognition and validation, it allows detection. It’s a complicated issue that needs more discussion.”
There are others who have claimed that the new law was a setback as it would spur the belief that child marriages were legal. Social activist and child's rights advocate, Kirti Bharti, PhD, for example, complained that “with this latest Bill, all progress made in the last few years will be undone”.
It is, however, hard to imagine how a law that is effectively the same as the 2009 Act (with the exception of different ages for brides and grooms), will now suddenly “encourage” child marriages.
A Long Way To Go
The Rajasthan law on child marriages, though a step in the right direction, falls short of prohibiting child marriage.
One concern is that the law does not provide clarity on what penal action would be taken in cases where child marriages are registered, and leaves it to the discretion of district collectors to act as they please.
To address this concern, Shakuntla Rawat, a member of the Rajasthan legislative assembly explained, that “in the villages, there are a lot of group conflicts, hence a party can give a wrong claim about the other party that child marriage has happened, hence the collector has been given this power to investigate and then take action accordingly”.
However, these views are centred on the wrong issue—punishment, rather than prevention.
The point that both critics and the legislature appear to have missed is that even if district collectors were to take action as reportedly envisaged by the amended law, they would not be able to annul the marriages being reported. The reason is that the role of the district collector would come into play only at a much belated stage of registration, after the marriage.
At best, district collectors may be able to take punitive action against those involved, which may deter the community, but the marriage would remain intact.
The key issue is that much of the discourse on child marriages is focused on statutory reforms alone.
Mehra of Partners for Law in Development, has argued that “any measure to secure rights of girls, married or those vulnerable to early marriage, has to go beyond legislative measures and amendments”.
This view is affirmed by the fact that even Karnataka, which has declared all child marriages void ab initio, reports more child marriages than any other state: 51 cases in 2016, 65 in 2017, and 73 in 2018.
Haryana, which declared a blanket ban on all child marriages, continues to report such cases.
Evidently, stricter laws do not necessarily lead to lower incidents of child marriage. The concerns around the issue of child marriage in Rajasthan and other parts of the country are complex and warrant state and community intervention.
As Mehra points out, “there must be provision of education, special livelihood training, safety, empowerment programmes and other opportunities for girls that offer viable social and economic options outside of marriage”.
(Mani Chander is a lawyer based in New Delhi.)
Update: On 11 October 2021, the Rajasthan government said that it would recall the Rajasthan Compulsory Registration of Marriage (Amendment) Bill, 2021. Chief Minister Gehlot said, “There has been a controversy that this law will encourage child marriage. We decided it was not a question of our prestige. We will request the governor to return the Bill. Next, legal opinion will be taken. If the opinion is unfavourable, we will not promote it”.
The earlier law i.e. Rajasthan Compulsory Marriages Act, 2009, however, remains in force which requires registration of marriages of both boys and girls below 21 years of age.