One of the ‘adverse a consequence of child marriage, as realized by the reformers, was early consummation, with disastrous effect on the health of the young wives and their children. An effort was made in 1891 to prevent early consummation by the Age of Consent Act which prohibited consummation before 12 years.
Due to lack of publicity and propaganda, there was no impact of this provision. In 1925, the Age of Consent was raised to 13. This was the forerunner of the Sarda Act of 1929. Perhaps the realisation that legislation, while one of the major instruments of social change, is not sufficient by itself to fight against deep rooted prejudices and traditional practice made the legislators compromise by leaving the validity of child marriage untouched but making such practice a penal offence. Parents of children, those ‘performing, conducting or directing’ as also the adult bridegroom, were all liable to punishment in varying degrees. The Act was further amended but left untouched the structure of the earlier Act.
The impact of this legislation and the present position regarding child marriages has been discussed already. Apart from the Sarda Act, the various personal laws have their own minimum age of marriage. Not only do they vary in regard to the minimum age but also in the consequences of violation of the law. The Hindu Marriage Act lays down as one of the conditions the completion of 18 years and 15 years by the bridegroom and the bride respectively. Though passed in the post-independence era, the Act remains silent about the effect on the marriage and continues the earlier penal policy in cases of violation. Most writers hold the view that the validity of the marriage is not affected and this is also supported by judicial decisions. The Parsi Marriage and Divorce Act, 1936 on the other hand lays down that no suit shall be brought to enforce a marriage between two Parsees or any contract connected with the marriage if at the date of the institution of the suit the husband has not completed age of 16 years and the wife 14 years.
The Christian Marriage Act, 1872 provides that for a valid marriage under the Act, the age of the male shall exceed 16 years and that of the female 13 years. For a valid marriage under the classical Muslim Law the parties should not be minors, this is, the parties should have attained puberty. Puberty is presumed in the absence of evidence to the contrary, at 15 and 19 in the case of girls and boys respectively. Only the Special Marriage Act, 1954, a post-independence legislation which provides for a secular marriage irrespective of the religious affiliation of the parties, contemplates the solemnization of marriage between adults under its provisions, as it fixes the minimum age at 21 and 18 for males and females respectively. The legal position noted above brings forth an important feature, namely, a lesser age of marriage is prescribed in the case of girls. No doubt throughout the world, the laws generally provide for a lesser age in case of girls.
For example, in the U.S.A. only eleven States prescribed the same minimum age for boys and girls. The remaining thirty-nine states permit girls to be married at a lower age than boys. As pointed out by Konowitz. “It (early marriage for women) can lead to premature removal from socially productive enterprise or lost opportunities.
” When the legal age of marriage in case of a female is below the age of discretion she cannot be expected to form an intelligent opinion about her partner in life. The policy of law which permits the marriage of a girl before she is physically and mentally matures is open to serious question. As reported by the Pushpaben Committee, child marriage is one of the significant factors leading to the high incidence of suicide among young married women in India. Therefore, increasing the marriage age of girls to eighteen years is desirable. In this context it is necessary to point out an anachronism that exists in the Muslim Law that governs some sects. After attaining puberty, a Muslim male in all sects and a Muslim female belonging to the Hanafi and Ithana Ashari Shiite sects can marry without a guardian.
But “a Maliki, Shafi, or Daudi or Sulaymani Bohra virgin cannot marry without a guardian and her only remedy is to change over to the Hanafi School and marry according to its tenets.” In two recent decisions, viz. Muhammad Hazi Kammu vs.
Ethiywnma and K. Abubukker vs. Marakkar (The Kerala High Court) struck a different note which mitigates this hardship. The parties in both cases were Shafis. In Abubukker’s case, the mother who was divorced sought the consent of her ex- husband to the daughters’ marriage which he refused. On the marriage being solemnized, the father filed a suit for a declaration that the marriage was invalid as his consent was not obtained. The lower Court declared the marriage to be invalid even though the girl was already pregnant.
Reversing the decision of the lower Court, Justice Pillai stated that under the Maliki and Shafi law the marriage of an adult girl is not valid unless her consent is obtained, and communicated through a legally authorised wali (guardian). As the father refused his consent, she could constitute any other relation or Kazi (in this case the Kazi) to act as her agent. In our opinion a change in the law to remove the existing disability in these sub-schools and to bring them in conformity with the Hanafi law is necessary.