Takes away their choice of partner; violates their rights: SC urges Parliament to outlaw child betrothals

New Delhi [India], October 18 : The Supreme Court on Friday, while stating that marriages fixed in the minority of a child have the effect of violating their rights to free choice, said that Parliament may consider outlawing child betrothals, which may be used to evade penalty under the Prohibition of Child Marriage Act (PCMA), 2006.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra said child betrothal takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency.
"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. 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 Juvenile Justice Act, the practice also requires targeted remedies for its elimination," the apex court said.
Delivering a judgement on a PIL alleging a rise in child marriages in the country, the apex court issued a slew of guidelines for achieving the elimination of child marriage while bearing in mind the delicate socio-economic interplay.
The judgement came on a PIL by the Society for Enlightenment and Voluntary Action, saying that despite the enactment of the Prohibition of Child Marriage Act 2006, the rate of child marriages in India is alarming and highlighted the failure of authorities to prevent child marriages.
The top court in its verdict emphasised the need for more comprehensive approaches and community-driven strategies to ensure the complete eradication of child marriages.
The PCMA as social legislation will only succeed through the collective efforts of all stakeholders to address the issue within a broader social framework that emphasises the need for multi-sectoral coordination, the verdict stated.
"This necessitates the enhancement of reporting mechanisms, expansion of public awareness campaigns, and investment in the training and capacity-building of law enforcement officers and related actors. 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," it added.
The apex court said that it framed the guidelines for the effective and useful implementation of the PCMA and the orientation of these guidelines is to prioritise prevention before protection and protection before penalisation.
It said the focus of penalisation reflects on a harm-based approach, which has been proven ineffective and the guidelines issued by the top court are on awareness campaigns, funding campaigns, community involvement, education, social support, etc.
"We are cognizant of the impact that criminalisation has on families and communities. To ensure effective use of penal provisions in the PCMA, there must be widespread awareness and education about child marriage and the legal consequences of its commission. We must not be understood to discourage prosecution of those who commit illegal acts. However, the aim of the law enforcement machinery must not be solely focused on increasing prosecutions without making the best efforts to prevent and prohibit child marriage. The focus on penalisation reflects a harm-based approach that waits for harm to occur before taking any steps. This approach has proven to be ineffective at bringing about social change," it added.
The 141-page judgement said that addressing child marriage requires an intersectional approach that acknowledges the overlapping vulnerabilities experienced by children, especially girls from marginalised communities.
"Intersectionality involves considering factors like gender, caste, socioeconomic status, and geography, which often increase the risks of early marriage. 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," it stated.
It further said that state governments also must monitor and enforce compliance with these laws and work closely with civil society organisations to implement effective interventions.
The top court further said that the state's role is not limited to merely punishing offenders but extends to creating an enabling environment where children can exercise their rights freely.
"This includes the responsibility to not only to legislate against child marriage but also to address the underlying socio-economic factors--poverty, lack of education, and gender discrimination--that perpetuate this practice," added the verdict.
It further stressed that the right to childhood belongs to all sexes. "Education--primary, sexual and life-enhancing--is integral to the right to childhood. Realisation of this right is crucial in dealing with the evils of child marriage," stated the judgement.