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Legal Analysis of Child Marriage Laws

The document discusses the validity of child marriages under Indian law. It notes that while child marriages may contravene acts like the Child Marriage Restraint Act of 1929, the acts do not invalidate such marriages or declare them void. Rather, the acts impose penalties on those facilitating child marriages. The courts have affirmed this view, holding that child marriages remain valid despite potentially being illegal under the acts. The acts aim to discourage child marriages through criminal penalties rather than invalidating them.

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68 views1 page

Legal Analysis of Child Marriage Laws

The document discusses the validity of child marriages under Indian law. It notes that while child marriages may contravene acts like the Child Marriage Restraint Act of 1929, the acts do not invalidate such marriages or declare them void. Rather, the acts impose penalties on those facilitating child marriages. The courts have affirmed this view, holding that child marriages remain valid despite potentially being illegal under the acts. The acts aim to discourage child marriages through criminal penalties rather than invalidating them.

Uploaded by

rahat879
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

P a g e | 28

Hence the judges are constrained by the limitations in the Act. Even if the judge feels the
omission in the legislation he has no power to fill the gap. The judicial creativism is restricted
by the express words used in the statute or by necessary implication. If the omission of the
legislature is intentional, the courts have nothing to do with it. The Courts have to delve deep
into the words to find out the true purpose and object of the Act at the time of enactment.

3. In the same year, the Andhra High Court also discussed this issue. In Moti v. Ben i73
made a complaint against one Chhotulal that he had kept Beni's daughter Chamelia in
wrongful confinement. Chamelia was taken from the custody of Chhotulal and was
given into the custody of the mother as per the request of Beni. During the
proceedings it was known that the girl was married to Moti.

Then the Magistrate directed to produce the girl before the court and handed her over
to the husband. Against this order an application for revision was filed before the District
Magistrate. The District Magistrate had ordered Chamelia to the custody of the mother saying
that she was yet a girl of thirteen years and she cannot be legally married and therefore the
proper guardian is the mother. 'the matter was referred to the High Court.

While setting aside the order of the District Magistrate, Justice Thomobo observed that
the court below acted without jurisdiction. He vehemently criticized the remark of the District
Magistrate that the marriage of Chamelia with Moti was an illegal marriage. His words
reflect the real status of the child marriage and the penal nature of the offence under the Act.

“It is true that celebration of this marriage may have contravened the provisions of
the Child Marriage Restraint Act, 1929; but marriage of a child is not declared by the Child
Marriage Restraint Act, 1929 to be an invalid marriage. The Act merely imposes certain
penalties on persons bringing about such marriages”.

4. In 1961, Justice S.P. Mohapatra strongly emphasized the indisputable aspect of the
validity of marriage in Birupnkshya Das v. Khujubehare 74. The Act does not
invalidate the marriage even though it may be in contravention of the provisions of
the Act75. Add frm data

The Hindu Marrige Act was enacted in 1955 and contains the same age limit for bride and
bridegroom at par with the Child Marriage Restraint Act,192976. The said Act remains silent
about the legal validity of the child marriage and continues the earlier penal policy adopted in

73
AIR 1936 Allahabad, 852

74
A.I.R. 1961 Orissa,104.
75
In spite of the marriage being valid, it is transparent from the provisions of the Act that the marriage in
contravention of its provisions is a criminal act, punishable under the [Link] legislature no doubt disapproves
all such marriages and makes the performance of such marriage punishable in law.
76
Section 5 of the Hindu Marriage Act deals with the conditions for a Hindu Marriage and Ciause (iii) says that,
at the time of the marriage the bridegroom should have completed the age of twenty one years and the bride, the
age of eighteen years.

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