What is happening in Assam?
The Assam Government recently launched a crackdown on child marriage, arresting over 3000 people involved in child marriage so far. The arrests have resulted in protests by women in the districts where they had taken place, as government action has left families separated and without a stable source of income.
The crackdown was initiated in response to over 4,100 FIRs registered across the state, and a cabinet sub-committee has been formed to finalize a Rehabilitation Policy within 15 days for victims of child marriage. Assam Chief Minister, Himanta Biswa Sarma, justified the drive against child marriage as a step to ensure public health and welfare, with teenage pregnancy rates being alarmingly high in the state.
While some have argued that law enforcement alone cannot be the solution to this social problem, others see it as a positive step in raising awareness and deterring the harmful practice.
Child marriage is a persistent problem in India, with an estimated 27% of girls being married before turning 18, the legal age of women in India for marriage. The practice is, arguably, most prevalent in rural areas and among the poor, and it has serious consequences on the health, education, and overall development of adolescent girls. Despite laws and policies to prevent child marriage, such as the Prohibition of Child Marriage Act of 2006, the practice continues to be deeply entrenched in many parts of the country.
What are the relevant laws surrounding these arrests?
The Assam administration has said that men who had married girls under 14 years of age would be booked under the Protection of Children from Sexual Offences Act, 2012, and those who married girls between 14 and 18 would be charged under the Prohibition of Child Marriage Act, 2006.
The interplay of POCSO Act and Child Marriage Act:
The Protection of Children from Sexual Offences Act, 2012:
1. Sexual assault under POCSO is a non-bailable, cognizable offense.
2. Child marriage under 14 is presumed to be sexual assault. Nonpenetrative sexual assault carries a minimum imprisonment of 3 years, extendable up to 5 years with a fine.
3. Mandatory reporting obligation under POCSO Act requires reporting of sexual offenses against children to the police or Special Juvenile Police Unit. Doctors must also report cases where minor girls seek medical assistance during pregnancies or for termination of pregnancies.
The Prohibition of Child Marriage Act, 2006:
1. Child marriages are illegal but not void. They can, however, be voided at the option of the minor wither through their guardian or by themselves once the attain adulthood
2. The Act sets the minimum marriageable age at 18 years for women and 21 years for men
3. Child marriage is punishable by rigorous imprisonment up to 2 years, a fine up to one lakh rupees, or both.
4. Under Muslim personal law, girls who attain puberty are considered to be of marriageable age. This is usually considered to be 15. This incongruence between Muslim law and the Act has led to legal confusion and inconsistency
What has been the impact of these arrests?
The arrests have taken place in 10 muslim majority districts of Assam, where the highest number of child marriages were reported. While the issue of child marriage remains a social evil in the state, the recent arrests have disproportionately been among Muslim men, which many believe is a targeted step.
The popular response to these arrests within these districts has been overwhelmingly negative, especially from the wives and families of the men who were arrested. Several poor and single-income families have, through this recent slew of arrests, been left without a stable source of income and more vulnerable.
The application of this law has been done retrospectively in many cases, where the wife is no longer a minor, and in some instances even above the age of 30. The use of indiscriminate arrests to address what is a complex social issue has been decried by advocacy groups and human rights activists.
Child marriage is voidable at the option of the party who was minor at the time of marriage. On attaining adulthood, if an annulment is not filed for, then the marriage remains valid, and the State must not apply the Act retrospectively or interfere with the family unit. In an overwhelming number of recent cases, the women in the marriages did not want legal action to be taken against their husbands.
The lack of access to schools in these districts due to severe flooding in the Monsoon, and generational poverty have been major factors contributing to the high number of child marriages. Increasing education amongst girls has widely been considered an important first step to eradicating child marriage. Following the action taken by the Assam Government, it is likely that families whose breadwinners are detained will no longer have the means to support their children’s education, further contributing to the problem, while also punishing supposed victims of child marriage by destabilizing the family unit.
The current implementation of the Prohibition of Child Marriage Act as well as POCSO in Assam is being done in an ostentatious manner that attempts to display the Government’s hardline stance against child marriage. The reality, however, is that the retrospective and specific application of the laws has done more harm than good. Superficial attempts at tackling child marriage, whose solution will require a social change in the form of educational access and awareness, only seek to criminalise and not reform. Aggressive police action in Assam will not result in lasting social change, and will further harm progress.
Deb is a policy intern at TA and a student of law at Rajiv Gandhi National University of Law, Patiala.
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