Author: Riya Raj
College: GD Goenka university
Abstract
Child marriage in India occupies an uncomfortable space in the legal system, it is prohibited, yet it persists. It is criminalised, yet the marriages it produces are often treated as valid. This article examines the legal grey areas that have allowed chil marriage to survive despite nearly a century of legislation against it. The central argument is that the Prohibition of Child Marriage Act, 2006 (PCMA), while well-intentioned, contains structural gaps that personal religious laws, procedural delays, and weak enforcement mechanisms have exploited. The article traces the conflict between the PCMA and personal laws governing Hindu and Muslim marriages, looks at how courts have struggled to resolve this tension, and engages with the void versus voidable debate that sits at the heart of the problem. Karnataka’s legislative amendment serves as a reference point for what meaningful reform might look like. The article concludes that the criminal law approach alone is inadequate and that a civil framework offering real protection and rehabilitation to child marriage survivors is long overdue.
Keywords: Child Marriage, PCMA 2006, Personal Laws, Void, Voidable, Legal Grey Areas, Religious Personal Laws, Child Protection.
To the Point
Child marriage is not simply a social problem that law has failed to reach. It is, in a very real sense, a problem that law has helped sustain not through intent but through contradiction. India made child marriage a punishable offence decades ago, yet the legal system simultaneously allows the consequences of such marriages to stand. A girl married at 15 may grow up in a union that the law technically prohibited but never actually dissolved. The adults responsible may never be prosecuted. The marriage may never be annulled. And the child, now a woman, is left to live inside a legal arrangement that the law both condemned and enabled.
This contradiction is not accidental. It is the product of a legal framework that criminalises child marriage without voiding it, that punishes its performance without undoing its effects, and that protects religious personal laws without questioning what those laws permit. Until these contradictions are confronted directly, child marriage will continue to find shelter in the gaps.
Use of Legal Jargon
The legal architecture governing child marriage in India rests on three overlapping and often conflicting foundations: constitutional guarantees, secular statutory law, and religious personal laws.
The Constitution of India guarantees the right to life and personal liberty under Article 21, which courts have interpreted broadly to include the right to live with dignity, the right to make autonomous choices about one’s life, and protection from practices that reduce a person to a condition of exploitation or servitude. Child marriage, by its very nature, conflicts with each of these. Yet Article 25, which protects the freedom of religion, has historically been invoked to shield personal law practices including those that sanction early marriage from legislative interference.
The PCMA, 2006 is the primary secular statute governing this area. It defines a child as a male below 21 years of age and a female below 18, and it criminalises anyone who solemnises, promotes, or permits a child marriage. Offences under the Act are cognisable and non-bailable. The Act also provides for the appointment of Child Marriage Prohibition Officers at the state level and allows courts to issue injunctions to prevent child marriages before they occur.
However, the critical gap lies in the civil consequences of child marriage under the PCMA. Section 3 of the Act makes child marriages voidable, not void. This means the marriage is presumed valid unless one of the parties typically the child who was married approaches a court and seeks annulment within two years of attaining majority. The burden falls on the victim. The marriage is not automatically dissolved. It continues to produce legal consequences rights of inheritance, legitimacy of children, claims of maintenance unless actively challenged.
This voidable status stands in sharp contrast to the treatment of void marriages under other statutes. Under the Hindu Marriage Act, 1955, marriages involving prohibited degrees of relationship or involving persons already married are void ab initio, they never legally existed. No court order is required to nullify them. A child marriage, by contrast, requires active litigation to undo, litigation that most child brides are neither aware of nor in a position to pursue.
Muslim personal law presents an even more complicated picture. There is no statutory minimum age for marriage under Muslim personal law in India. Traditionally, Muslim marriages could be contracted upon puberty, which courts have sometimes interpreted to mean as young as 15 years of age for girls. The PCMA applies to Muslims as a secular overriding statute, but the extent to which it overrides personal law has been a matter of active judicial controversy. Some High Courts have held that the PCMA prevails over personal law. Others have been more circumspect, leaving room for ambiguity that courts and communities alike have exploited.
The concept of restitution of conjugal rights under Section 9 of the Hindu Marriage Act and its equivalent in Muslim personal law adds another layer of complexity. A child bride who leaves her matrimonial home may find herself on the receiving end of a petition for restitution of conjugal rights filed by her husband a legally recognised remedy that forces her back into the marriage unless she successfully contests it. The law, in other words, offers her a way out with one hand and a mechanism to pull her back with the other.
The Proof
The empirical evidence makes clear that the existing legal framework is not working. The 2011 census found that over 23% of women aged 20 to 24 had married before the age of 18. More recent data suggests that while this proportion has declined, millions of girls continue to be married as children each year. India still accounts for one of the largest absolute numbers of child marriages in the world.
The National Family Health Survey (NFHS-5), conducted between 2019 and 2021, found that 23.3% of women aged 20 to 24 were married before 18 a figure that has remained stubbornly resistant to change despite legislative reform. In states like Bihar, West Bengal, and Rajasthan, the numbers are significantly higher than the national average. These are not states without law. They are states where law exists but fails to reach.
Prosecutions under the PCMA are strikingly rare. A 2019 report by Young Lives India found that awareness of the PCMA among communities in which child marriage is common is almost negligible. Child Marriage Prohibition Officers, mandated under the Act, are either not appointed or are inactive in many districts. Injunctions preventing imminent child marriages a tool the Act explicitly provides are almost never sought. The criminal machinery that the Act sets up exists largely on paper.
The consequences for girls who are married as children are well documented. Early pregnancy significantly raises the risk of maternal mortality. Girls who marry before 18 are more likely to drop out of school, less likely to enter the workforce, and significantly more likely to experience domestic violence. The economic and social dependence that follows is difficult to escape, particularly when the legal system does not offer a clear or accessible path out of the marriage itself.
Case Laws
1. Lajja Devi v. State (Delhi High Court, 2012)
The Delhi High Court examined a case where a girl had been married as a minor and sought the annulment of her marriage under the PCMA. The Court held that the right to seek annulment under Section 3 of the PCMA is available to the minor contracting party and must be exercised within two years of attaining majority. The judgment, while correctly applying the statute, also illustrated its central limitation — the burden of approaching the court lies with the victim, not the state.
2. Independent Thought v. Union of India (Supreme Court, 2017)
This is perhaps the most significant judicial intervention on child marriage in recent years. The Supreme Court held that sexual intercourse with a wife aged between 15 and 18 years constitutes rape, striking down Exception 2 to Section 375 of the Indian Penal Code to that extent. The judgment firmly located child marriage within a framework of rights violation and bodily autonomy, and it explicitly recognised that the PCMA and the personal laws cannot be read in a way that legitimises the sexual exploitation of minor girls.
3. Seema v. Ashwani Kumar (Supreme Court, 2006)
While primarily concerned with the compulsory registration of marriages, this judgment has indirect significance for child marriage because it recognised that the absence of documentation makes it nearly impossible to track or challenge marriages that involve minors. The Court’s push for mandatory registration, if implemented uniformly, could serve as a practical deterrent.
4. State of Karnataka v. Various Accused Persons
Karnataka’s amendment to the PCMA which declared child marriages void ab initio rather than merely voidable was tested in a series of cases before the Karnataka High Court. The amendment represented a direct legislative rejection of the voidable framework and has been cited as a model for other states. Courts applying the Karnataka amendment have taken a firmer position on the invalidity of child marriages and have been more willing to treat the marriage as legally non-existent from the outset.
Conclusion
The legal grey areas enabling child marriage in India are not obscure technicalities buried in fine print. They sit at the centre of the statute in the choice to make child marriages voidable rather than void, in the failure to override personal laws comprehensively, in the absence of an enforcement machinery that actually functions, and in the lack of a civil remedial framework that gives survivors somewhere meaningful to go after the marriage is annulled.
The Karnataka amendment demonstrates that legislative reform is possible. Making child marriages void ab initio removes the burden from the victim, eliminates the two-year limitation window, and sends an unambiguous signal about the legal status of such unions. It is a reform that should be replicated nationally.
But legal reform alone will not close these grey areas. The PCMA needs an enforcement backbone functional Child Marriage Prohibition Officers, proactive use of injunctions, and prosecutions that are actually pursued. Courts need clearer guidance on the relationship between the PCMA and personal laws, with the constitutional principle of the supremacy of fundamental rights applied more consistently. And alongside the criminal framework, there must be a civil one offering child marriage survivors access to shelter, education, legal aid, and economic rehabilitation, not merely a court order saying the marriage never happened.
A law that prohibits child marriage while leaving its victims inside it is not protection. It is the appearance of protection. Closing the grey areas means taking seriously the gap between what the statute says and what the child actually experiences and building a legal system that is designed around the second, not just the first.
FAQs
Q1. What is the Prohibition of Child Marriage Act, 2006, and what does it do?
Q2. If child marriage is illegal in India, why are such marriages still treated as valid?
Q3. What is the difference between a void and a voidable marriage?
Q4. How do personal religious laws conflict with the PCMA?
Q5. What makes Karnataka’s amendment to the PCMA significant?
