The Assam Government recently declared that strict action will be taken against child marriage. The two legislations that are being used by the Assam government to validate these actions are the Protection of Children from Sexual Offences Act, 2012 [POCSO] and the Prohibition of Child Marriage Act, 2006 [POCM]. POCSO defines child as any person below the age of 18 years.
This is in consonance with the Indian Majority Act, 1875 as well as the definition of child under the United Nations Convention on the Rights of the Child, 1989. Sections 3 and 5 of this of this act penalise sexual intercourse with a child. This Act presumes that a child does not have sexual autonomy.
Thus, under the POCSO, the spouse of a person below the age of 18 can be penalised. According to POCM, solemnisation of marriage of a girl below the age of 18 years and of a boy below the age of 21 years is prohibited. Currently, there is a proposal to increase the age of marriage of girls to 21 years.
IPC and POCSO
The text of section 375 of the Indian Penal Code, 1860 [IPC] provides a marital rape exception according to which sexual intercourse by a man with his wife, if the wife if above 15 years, is not considered rape. This provision was earlier in contradiction with the POCSO, since the latter penalizes any form of sexual intercourse with an individual below the age of 18.
However, the Supreme Court in Independent Thought v. Union of India , held that the distinction between married and unmarried girl child under the relevant provision, is a violation of Articles 14, 15(3) and 21 of the Constitution of India, as it is arbitrary and is not based on intelligible differentia.
The Court also relied on section 42A of POCSO, which was introduced in 2013 through an amendment. This section clarifies that in case of any conflict between any other law and POCSO, the latter will prevail.
Consequently, the Court has read down the exception and held that sexual intercourse of a man with his wife, if the wife is below18 years of age would constitute rape under section 375 of the IPC.
While the conflict between POCSO and IPC has been resolved through legislative amendment and judicial decision, there is still legal ambiguity with regard to the conflict between Muslim Personal Law and the POCSO.
The Assam government has stated that the state will take action against child marriage irrespective of caste, creed or religion.
However, due to the legal ambiguity, the impact of this government action on Muslims should be evaluated by taking into consideration the unique status of Muslim personal laws.
Personal Laws and POCSO
According to Muslim Personal Law, a person who has reached puberty can enter into a marriage. The age of puberty is considered 15 years in the absence of evidence. The status of personal laws vis-à-vis other laws especially the Constitution of India has had a chequered history.
In 1952, a Division Bench of the Bombay High Court in Narasu Appa Mali v. State of Bombay , had held that personal laws are not governed by fundamerntal rights. Several subsequent Supreme Court decisions have upheld this logic of Narasu judgment.
While challenge to codified personal laws on the ground of fundamental rights has been accepted by the Supreme Court in subsequent judgments, uncodified personal laws have not yet been categorically brought under the ambit of Fundamental Rights.
This issue was raised by Justice R. F. Nariman in Shayara Bano v. Union of India , as well as by Justice D.Y. Chandrachud in Indian Young Lawyers Association v. State of Kerala . Unfortunately, there is no clarity regarding the status of uncodified personal laws vis-à-vis fundamental rights.
The same ambiguity can be seen when we come across contradictions between uncodified personal laws and statutory laws. Though section 42A of the POCSO stipulates that POCSO shall override all other laws, it is not clear whether the overriding effect of POCSO extends to Personal laws.
Different High Courts have given different answers to this issue.
The Kerala High Court in Khaledur Rahman v. State of Kerala & Anr  has held that muslim marriages are not exempted from the application of the POCSO. According to this judgment, section 42 A will also be applied to decide the conflict between POCSO and personal laws.
However, the Delhi High Court in Fija v. State Govt. of NCT of Delhi & Ors., Karnataka High Court in Md. Waseem Ahamad v. State  and the Punjab and Haryana High Court in Javed v. State of Haryana , have held that the POCSO does not prevail over personal laws.
On one hand, the law is ambiguous regarding the status of personal laws vis-a-vis fundamental rights. Due to this it is not clear whether the rules of uncodified personal laws like Muslim personal law can be considered a violation of fundamental rights in the light of judicial precedents.
On the other hand, ambiguity in the statutes as well as judicial precedents regarding the relation between personal laws and statutes leads to a confusing situation
POCSO and POCM
According to section 3 of POCM, every child marriage is voidable at the option of the contracting party. A child marriage is not void ab intio (having no legal effect); rather, the child has the option to void the marriage on turning 18. This means that, if the child so wants, the marriage can remain valid.
Thus, while a person can be penalised under the POCSO as well as POCM for marrying an individual below the age of 18; it is still possible for the marriage to remain a valid marriage.
One of the fundamental rules of law is that law should be clear, precise and unambiguous.
Legal ambiguities are considered arbitrary and are therefore, a violation of right to equality under Article 14 of the Constitution of India. The Supreme Court in Shreya Singhal v. Union of India , has emphasised that law should be clear and unambiguous. Law presumes that every individual is aware of the laws.
This presumption is articulated in the legal maxim, ignorantia juris non excusat, i.e., the ignorance of law is not an excuse. However, such a presumption is valid only in those situations where the legal position is clear and there is no conflict between different laws.
There is an urgent need in India to effectively address the problem of child marriage. However, the governments need to consider a much more nuanced approach while addressing this issue. The tendency to invoke penal laws to address social problems is not always the appropriate response.
In a society where child marriage is not only socially accepted, but has also been given some form of legal sanction, for e.g., in the case of Muslim personal law; a sudden decision to use penal provisions reflects the lack of understanding and empathy on part of the government.
When the law itself is not clear regarding the legal validity of child in the case of Muslim personal laws, it is ironic that it presumes that the common citizen has the skill and the ability to predict what the law should say and act accordingly.
Child marriage is a symptom of an unjust, patriarchal social structure. This problem impacts women more than it impacts men and there is undoubtedly a need to address this issue irrespective of religion. However, the manner in which Assam government has approached this problem speaks volumes about its inability to understand the social cost of such penal action.
Has the government thought about the girls who have been married as a child? In case a penal action is taken against their spouses, will the government ensure that these girls have a source of livelihood or that their basic needs like food and shelter are fulfilled by their family members? Does the government have any policy to address cases where both the parties to marriage are minor?
The present approach of the Assam government does not put the concerns of the child in the child marriage at the forefront. The legal action has not been supplemented with policy measures that address the emotional and social repercussion of such an action.
So What Needs to Be Done Now?
It is urgent that some of the legal ambiguities around this issue are resolved.
The law should declare that personal laws are subjected to fundamental rights and that they should also be subjected to special legislations like the POCSO.
However, there is also a need to re-examine POCSO. POCSO presumes that an individual below the age of 18 does not have any sexual autonomy. Such a presumption does not reflect today’s reality. Therefore, POCSO should be judicially interpreted or amended to accommodate instances of consensual sexual intercourse.
Subjecting consensual sexual intercourse to penal provisions is an unwarranted intrusion in the sexual autonomy of an individual. It is also ironic that if a child above the age of 16 commits a heinous offence, the applicable Indian law — the Juvenile Justice (Care and Protection of Children Act), 2015 — provides that such child may be tried as an adult and not a juvenile. The mental cognition of a child in such instances is compared to an adult. However, our laws refuse to accept that a child in the same age group has the sexual autonomy to have consensual sexual relations.
The mindless invocation of legal provisions to address social concerns, is one of the biggest problems of our legal system. Often, the language of law is objective and neutral, but its application is not. Good governance demands that the executive displays the sensibility and the sensitivity to use law in a manner that addresses the root of the problem.
Moreover, good governance also demands that technocratic application of law does not ignore the social realities and the social costs of challenging those realities.
(The author is an Assistant Professor at Campus Law Centre, Faculty of Law, University of Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)