Child Marriages: When Laws Betray Children…
By Tejaswini Pagadala
12 November, 2012
The contradictions in child laws have hobbled the fight against child marriages, even throwing the courts in state of quandary
You wouldn’t know she’s a widow until you spend over an hour talking to her about her family. In the midst of this, Asma suddenly begins gasping for breath as she cries copiously. Her smudged kajal defines the stream in which her tears flow down her rosy cheeks. Her puffed up eyes reflect the tiredness on her face. As if she has cried the night before I met her. Recollecting her husband’s death, the 40-year-old woman says bluntly “he died of cardiac arrest.”
Splashing water on her face, in a morbid tone, she says: “I’m not crying because he died. I’m upset because he hasn’t written the property on my name.” She continues “How should I take care of all the children? I do not work. So, where will I get the money from?” The irksome expression was an indication of a harrowing life she underwent after her wedding.
“Why should I cry for him?” she asks, adding that she was robbed of childhood because she was married off at the age of 13 to Sajid, a man 23 years older than her. Gradually unravelling her wedding diaries, Asma says “This man had come to Hyderabad from Oman. He stayed at a motel which was a stone’s throw away from my house in Old City.”
Being a “richie rich”, he managed to win over my parents by offering monetary help during difficult times, she reveals. In return, he wanted me, she says. “My marriage was a transaction and I was the commodity,” Asma reveals. A victim of domestic violence, Asma was taken to Oman after her wedding with Sajid.
“He had three wives and 16 children. The old man wanted me only for sex,” she laments, adding that she has three kids with him.
Six months after her wedding, Asma told her husband that she wanted to go back to Hyderabad. “He said yes to that. I was happy I wouldn’t be in chains anymore.” He used to visit us one or twice a year, she reveals.
Taking a deep breath, she says “Hum logon mein ye sab chalte rehta! Bahut Shadiyaan hote yahan tho, (It is a common practice among us, Muslims. Child marriages are rampant in Old City),” in the native Hyderabadi Hindi language.
The Prohibition of Child Marriage Act (PCMA) of 2006 states that a “child” or minor under this law is defined as someone below 18 years of age, in the case of girls and 21 years, in the case of boys.
Under the Act, a male adult above 18 years of age, who marries a child, shall be punishable with rigorous imprisonment extending to two years or with a fine of up to Rs1 lakh or both.
“Whoever performs, conducts, directs or abets a child marriage, including parents or an organisation will also face similar punishment,” it says.
The Convention on the Rights of the Child (CRC) defines a child as a person below 18 years and identifies the rights of children. A woman’s right to free and informed choice in the matter of a marital relationship is a fundamental human right which is secured by the provisions of a number of international human rights instruments, says Article 23 of the International Covenant on Civil and Political Rights (ICCPR).
These international organisations enumerate various human rights standards for the protection of children, choice of relationship and the age at marriage, and inform the laws on child marriage in India.
But, Asma’s example reflects the prevalence of child marriages among Hyderabad’s minority community. Reasons for this can be attributed to the heavy influx of people from Saudi Arabia, Oman and other Gulf countries into Old City.
According to activists, the “fixed-term matrimony” practice began in the 1970s after the Gulf countries banned their citizens from bringing home minor foreign brides.
Hyderabad has been a hunting ground for Gulf Arabs seeking young, virgin brides. This racket came to light in the early 1990s when an alert air hostess rescued a weeping pre-teen, Ameena, from her 60-year-old Arab husband, on a flight out of Hyderabad.
M.A. Shakeel of Human Rights Law Network says the incidence of child marriages is high in Old City of Hyderabad in Andhra Pradesh. “These foreign nationals come on a conditionality stating they are distant relatives of a person living in Old City or that they are physically disabled,” Shakeel adds.
Temporary marriage contracts called Mutah happen in Old city. Generally, aged and wealthy Arab nationals visit India, especially Hyderabad in Andhra Pradesh, to prey on teenage girls by paying fat cash as dowry to their parents. They marry a minor, stay in Hyderabad for a brief period and fly back home. “This has been an age-old practice,” Shakeel explains.
In a shocking incident in January 2007, a 60-year old Arab was on a wedding vacation to Hyderabad. He had married three girls, Sahana, Fatima and Asfiya, at a single sitting. All, within 10 minutes.
Similarly in May 2004, one Muhammad Zafer Yaqub Hassan al-Jorani hailing from Sharjah came to Hyderabad on the pretext of a cataract operation. Jorani was living with his two wives and 11 children in his Sharjah residence. On May 7, he had married Sabah, a 19-year-old girl, in Hyderabad. Two days later, he divorced her. On May 24, he had married another 16-year-old girl Ruksaar. Following this, Sabah braved to approach the police and got Jorani arrested. Police later learnt that Jorani was living with his two wives and 11 kids at his Sharjah residence.
A person who has been a witness of several such marriages and did not want to be named says, “I have seen such marriages. I even tried to alert the police. In turn, I was threatened.”
Reflecting the same opinion, Mr Shakeel says, the Human Rights Law Network had faced several such threats in their attempts to thwart child marriages. “In one case, we were informed about a child marriage. When we were on our way, we had received threatening calls from local politicians. It was difficult to intervene,” he says, adding that the child marriage was finally stopped with the help of the Mandal Revenue Officer and the RDO.
Contradictory laws perpetrate child marriages
The Qazi Act of 1880 gives a free will for Qazis to perform weddings as the Act doesn’t specify any age limit for marriage. According to S. Umapathi inspector general, CID, Urdughar, there is a need to amend the Qazi Act. He adds that a clause specifying the minimum marriageable age of girls as 18 years also has to be brought into the Act.
Even the Sharia Law perpetrates child marriages as it says that a girl after attaining puberty is ready for marriage, without specifying the age limit again.
However, Farida Hussain, president of All India Women’s conference, explains in a report that the Qazi Act amendment would not solve the problem. “The problem is prevalent among minor girls of other communities too,” she says.
Irrespective of the communities in which child marriages are prevalent, child rights’ laws in India are very contradictory. “They somehow rationalise child marriages. Different laws like the Prohibition of Child Marriage Act (PCMA), 2006, the Juvenile Justice Act, the proposed Protection of Child Against Sexual Offences Bill contradict and clash. There is no clarity,” rues Mamatha Raghuveer of Tharuni.
An example of this can be the Protection of Children Against Sexual Offences Bill (awaiting to become an Act). How? It has said that a minor (boy) below 18 may undergo criminal procedures if anybody complains that he has had sex with his wife, amounting to rape. “It is mandatory for everyone to report any under-18 sex, including the doctor the wife consults if she is pregnant,” the Bill says.
But, under the Indian Penal Code, sex with a woman under 16, and under 15 if she’s the man’s wife, constitutes statutory rape and can attract a jail term between of few years or life imprisonment. So, So, if a girl named A is 14-years-old at the time of her marriage, her husband has to wait for four years to have sex with her according to the former law while the IPC says he’ll have to wait for two years.
The Marriage Registration Dilemma
The provision included in the Hindu Marriage Act (includes Jains and Buddhists), Muslim Marriage Act, Christian Marriage Act, Parsee Marriage and the Divorce Act says that no marriage involving minors will be null and void unless one of the spouses seeks annulment.
Ms Raghuveer says many advocates are misusing the above clause in Marriage Registration Act and the PCMA to get divorce faster for their clients. “In most cases, the husband coaxes the girl into seeking a divorce when he actually wants it,” she opines, adding that a person can get divorce quickly under the PCMA Act.
On the other hand, Mr Shakeelh adds a different angle to this. “Firstly, if the man has married a minor, he would be questioned. He can be booked under a criminal case for it,” he says.
The practice of manipulation of birth and marriage certificates is also part of child marriages. “Most of girls don’t have age proof or birth certificates,” says Venkat Reddy, National Convener of MVF.
“Even if they show an age proof, it is likely to be manipulated. Same goes with a Marriage registration certificate,” reveals Subhash Chandra, a district official of child welfare committee.
Low conviction rates
The lack of establishing evidence also leads to low conviction rates in child marriage cases. According to Mr Umapathi, “People do not report these cases. Moreover, if a case goes to a court, the evidence is diluted.”
Because it takes years for a child marriage case to reach the courts, most of them (involved) are acquitted. “Girls do not take a strong stand. They succumb to family pressure and withdraw the case,” Mr Umapathi explains.
Of the total 1659 child marriage cases taken up in courts in 2011, only 76 people were convicted across India under the PCMA act, with a pendency rate of trials at over 88 per cent. The statistics show that every one in four persons is acquitted.
An amusing trend evident in such cases is the out-of-court settlement. “This is convenient as they don’t have to spend so much time and money,” says Achyuta Rao, president, AP Balala Hakkula Sangham, adding that even at that stage parents want the couple to re-unite.
Policy intervention in Andhra Pradesh
Five years after the Prohibition of Child Marriage Act has been passed, the AP government has taken steps to curb child marriages.
Following the state’s directions, Sunita Laxma Reddy, Women and Child welfare development minister, said: “Many parents we counselled feigned ignorance of the law. After propagation of the rules, we will act strongly.”
The six-tier system of Child Marriage Prohibition Officers (CMPOs) has been set up from the district down to the village level to effect implementation of the Act.
However, the dismal numbers point at the lack of data recording and vigilance in villages despite high incidence of child marriages in certain districts. The CMPOs, who are vested with powers of a police officer and can thwart a wedding and book cases as well as village child marriage prohibition and monitoring committees and the gram panchayats, opine that child marriages have ended.
What can be done?
According to Mamidi S. Chandra, director, Carped and member of ICPU, there should be a comprehensive, inter-related law regarding age of consent and marriage across religions.
Expressing discontent over confusing laws for children, Ms Raghuveer says, “All these laws only add to our woes. They don’t address the child marriage problem.”
Interestingly, Mr Shakeel says that the PCMA alone is enough to penalise people involved in marrying off a minor. “It should only be implemented effectively,” he says.
One should see it as a demand and supply chain, says Mr Reddy, continuing, “because there is demand for girls (from the boys’ side), there is supply. So, this should stop.”
While those are some suggestions to stop forced child marriages, we have another set of astounding advices from Haryana’s Khap Panchayat to its former chief minister urging to bring down the age of consent from 18 to 16 for girls. That said, all marriages below 18 years should be automatically made void.
A recent United Nation’s report on child marriages states that the number of child marriages has been declining in India. Unfortunately, the dropping numbers only to point at the contradicting laws that result in dismal reporting of such cases.
In fact, the riddle of the age of consent and child marriages has left even the highest institution in our country, the Judiciary, confused. So, where else do we go?
(This article has been written as part of the Asmita Media Fellowship 2012-13)
Tejaswini Pagadala works as a business reporter/sub-editor with a mainstream newspaper. But, her penchant for human rights issues keeps her engaged with people of deprived communities. Her passion and deep empathy for weaker sections of the society helps her offer an astute, incisive perspective to the stories she writes. She has written on child sex abuse, sex education, human trafficking, dalits rights, deprivation and child marriages. email : email@example.com
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