New Delhi: The Supreme Court on Friday framed comprehensive guidelines for the effective and useful implementation of the Prohibition of Child Marriages Act (PCMA) in the country, saying in the instance of child marriage, the right to sexuality of a person is systematically dismantled, and the assault starts with the sexualisation of the child at a tender age.
The apex court said the Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA.
A three-judge bench led by Chief Justice of India D Y Chandrachud and comprising Justices J B Pardiwala and Manoj Misra cited judgments to emphasise on the critical role of free and informed consent in marriage, particularly regarding child marriage.
The bench said child marriage deprives children of their agency, autonomy and right to fully develop and enjoy their childhood. "The right to free choice and autonomy in marriage encompasses three fundamental rights: the right to free and informed consent, the right against gender-based violence, and the right to sexual autonomy. These interconnected rights form the foundation for ensuring that marriage is a consensual partnership rather than a coercive arrangement, particularly when addressing the issue of child marriage," it said.
The CJI, who authored the 141-page judgment on behalf of the bench, said for women to exercise full, free, and informed consent as outlined in Article 16(1)(b) of Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW), they must possess the cognitive capacity to comprehend the meaning and responsibilities associated with marriage.
"We note that while the PCMA seeks to prohibit child marriages, it does not stipulate on betrothals. Marriages fixed in the minority of a child also have the effect of violating their rights to free choice, autonomy, agency and childhood. It takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency," said the CJI.
The top court said the Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA. “While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination," it said.
The court stressed the right to childhood belongs to all sexes. Education - primary, sexual and life enhancing – is integral to the right to childhood and realisation of this right is crucial in dealing with the evils of child marriage, it added.
"Despite the enactment of the PCMA, the abysmal number of prosecutions and the continued existence of the practice violates the essence of this court's holding. These rights and values are equally iterated in international law to which India owes an obligation," said the bench.
The bench said the child marriages in the country affected the constitutional guarantees of the right to education, health, autonomy and others. It said the detrimental effect of not being educated affects girls most starkly since they are already vulnerable to agents of oppression on account of their gender.
The apex court said: "Child marriage is a social evil, and its commission is a criminal offence. Despite the near-universal agreement on the ills of child marriage, its commission and prevalence have been sobering. Child marriage is the phenomenon of children being married before they attain the minimum legal age under the law."
The CJI said when the woman is married as a child, her education is arrested in place during a pivotal period of brain development, and the minority of a woman's age at the time of her marriage has a heightened impact on her education.
"The right to primary education is a fundamental right expressly enshrined under Article 21-A," said the bench. The bench said duty of the State corresponds to the right to development of a child which is traceable to Articles 14, 19(1)(a), 21 and 15, and the right comprehends the ability of a child to exercise free speech, express authenticity and live a life of liberty and dignity.
The CJI said patriarchy offends the most basic rights of people by creating a hierarchy-based order of subjugation and static power distribution in society, and when an institution of patriarchy operates, it never denies rights in a unidimensional way.
"In the instance of child marriage, the right to sexuality of a person is systematically dismantled. The assault starts with the sexualisation of the child at a tender age," said the CJI.
The bench said marrying in childhood has the effect of objectifying the child and the practice of child marriage imposes mature burdens on children who are not physically or mentally prepared to comprehend the significance of marriage.
"When women are forced into marriages to protect their 'chastity' and 'virginity' she is denied her right to sexuality, bodily autonomy and the freedom to make choices for herself as she sees fit," noted the bench.
"The minor is then boxed with the expectation of compulsory heterosexuality. The ability of a person to experience sexual desire organically and to navigate their choice in intimacy is effaced at the altar of tradition and social norm. At an age which must be instructed by the ability to make mistakes and learn from life experiences, children are stunted and forcibly fit into boxes," said the CJI.
The apex court formulated the guidelines with respect to: legal enforcement, judicial measures, community involvement, awareness campaigns, training/capacity building, educational and social support, monitoring and accountability, technology-driven initiatives for reporting child marriage; funding and resources. The bench said these specific guidelines for achieving the elimination of child marriage while bearing in mind the delicate socio-economic interplay.
The bench said the orientation of these guidelines is to prioritise prevention before protection and protection before penalisation. "We are cognisant of the impact that criminalisation has on families and communities. To ensure effective use of penal provisions in the PCMA, it is imperative that there is widespread awareness and education about child marriage and the legal consequences of its commission," the bench said.
The apex court’s judgment came on a writ petition filed by NGO Society for Enlightenment and Voluntary Action & another. The bench said the control of the sexuality of a girl child from orthodox moral virtues restricts her ability to experience life in its fullest dimension.
"Sexuality is not only the orientation a person may have in matters of romance and intimacy but also the ability to navigate the desires of a person regardless of their choice of partner or the option not to have a partner. Men and women alike are victimised by compulsory heterosexuality. In child marriage, their limited agency within heteropatriarchy is also taken away in infancy," said the bench.
The top court said preventive strategies should therefore be tailored to the unique needs of various communities and focus on addressing the root causes of child marriage, such as poverty, gender inequality, lack of education, and entrenched cultural practices.
"We frame the following guidelines for the effective and useful implementation of the PCMA.......We are cognisant of the impact that criminalisation has on families and communities," said the bench.
The apex court said the focus on penalisation reflects a harms-based approach which waits for a harm to occur before taking any steps. This approach has proven to be ineffective at bringing about social change.
The court, however, clarified it must not be understood to discourage prosecution of those who commit illegal acts. The central government submitted that the PCMA focuses on two key pillars: raising awareness and prosecution.
"It is also crucial to regularly monitor the implementation of the Act, conduct evaluations to identify gaps, and establish feedback mechanisms to continually refine and improve responses to child marriage," the bench said.
The bench also stressed on the need for more comprehensive approaches and community-driven strategies to ensure the complete eradication of child marriages. In the context of child marriage, the bench cited the heightened risk of health complications to arise out of adolescent sex and childbearing.
