Context: Recently, Delhi-based ‘legal resource group’ Partners for Law in Development (PLD) revealed a new study that aims to understand if the existing legislation — Prohibition of Child Marriage Act — serves its purpose.

Key area of Study

• PLD divided the study into sections on cases filed by girls, by parents, by husbands, and against parents. 
• “This comprises the cases of parents prosecuting the husbands or seeking custody of their daughter as well as cases in which the husband or the couple sought protection, cohabitation, bail or quashing of criminal charges.
• They conducted the study, analysing “district and High Court case law” pertaining to child marriage in India between 2008 and 2017. 
• The study focused on the distinctions between incidents of elopement by children against the wishes of parents/legal guardians, compared to incidents of forced or arranged child marriage.

According to PLD, its object was to examine which form of legislation may best support girls most vulnerable to child marriage and provide recommendations for the same, given the lack of “cogent evidence” on the effectiveness of the existing child marriage law. 

• “This qualitative analysis looked at the extent to which the law serves its intended purpose and whether it empowers those it is intended for, by comparing categories of litigants who initiate legal action and the remedies sought against its consequences on the young for whom the law is intended.
• These cases reflect “diverse types of legal action, including and beyond the Prohibition of Child Marriage Act, that sought varied remedies available in civil, criminal and constitutional law”.
• It selected for analysis judgments and orders in which child marriage was specifically mentioned.
• These included cases filed under the Prohibition of Child Marriages Act, 2006, as well as legal action initiated under other laws in relation to child marriage such as Protection of Children from Sexual Offences Act (POCSO), 2012, and the Indian Penal Code (IPC).

Key Findings

• Out of the original sample of 187 cases from the period, 83 were selected for the study. 
• According to the findings, 54, or 65 per cent, of the sample cases related to elopement while 25 related to arranged marriages. Just four were related to forced marriages.
• Only 30% of the cases were those of arranged child marriages, and a mere 5% were forced child marriages (such as those that involved kidnapping, enticement or forcible marriage by parents).
• An analysis of who initiated the legal proceedings shows that it was primarily the parents of girls who approached the legal system with a complaint. 
• Only 7% of the cases were initiated by a child marriage prohibition officer — the State functionary designated for implementing the law.
• Vast majority of child marriages during the decade took place in “resource-poor socioeconomic contexts.
• This is borne out by references in the case law to low-paid and uncertain livelihoods, lack of official identity and birth documentation, residence in urban slums, peri-urban industrial localities and rural areas, as well as low levels of education.
• It also found that the legal system was primarily accessed by parents, not girls, while applying the law on child marriage. This puts “disproportionate burden of criminality and stigma on husbands” and “lends the law to malicious and retributive use, which it was not enacted for”.

?Key recommendations made by PLD 

• “The premise of the law reform must be towards empowering children and adolescents vulnerable to marriage and towards crafting redress that transforms the conditions driving early marriage,” 
• In order to address the discrepancy between filing cases against elopement by children and forced or arranged marriages by parents, the group said the latter must also be considered as grounds to void a child marriage.
• It also offered a distinction between elopement and enticement in child marriage cases. “It is important, as the courts have consistently done, to distinguish cases in which girls exercise intelligent preference to marry from cases of enticement.

Difference between Elopement and enticement

• Elopement: to run away secretly with the intention of getting married usually without parental consent 
• Enticement: Enticement is the act of enticing—attracting, alluring, or tempting someone to do something, especially something wrong or something they shouldn't. The crime of enticement is a sexual crime, and often (depending on the Federal or state jurisdiction) involves a crime against a child.