Source: Indian Express

Introduction

The Himachal Pradesh Assembly has passed a new bill that changes the rules about marriage age for women. The bill, called the Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024, raises the minimum age at which women can legally marry from 18 to 21 years old. This bill modifies an existing law, the Prohibition of Child Marriage Act, which was created by the Central government in 2006. The state assembly approved this change through a voice vote.

What is the Prohibition of Child Marriage Act 2006?

About:

• The Prohibition of Child Marriage Act, 2006 is a legislative enactment of the Parliament of India that:
  • Provides for the prohibition of solemnization of child marriages, as defined in Section 2(b) of the Act, wherein either of the contracting parties is a child.
  • Establishes legal mechanisms, including the appointment of Child Marriage Prohibition Officers under Section 16, to prevent and prosecute instances of child marriage.
  • Prescribes punitive measures, as outlined in Sections 9, 10, and 11, for individuals who perform, conduct, direct, or abet child marriages, with penalties including rigorous imprisonment and monetary fines.
  • Empowers judicial authorities, specifically district courts and magistrates, to intervene in matters related to child marriage, including the issuance of injunctions to prohibit such marriages, as per Section 13 of the Act.

Legal Provision:

• Definitions (Section 2):
  • "Child" means a person who, if male, has not completed 21 years of age, and if female, has not completed 18 years of age.
  • "Child marriage" means a marriage to which either of the contracting parties is a child.
• Voidability of Child Marriages (Section 3):
  • Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.
  • A petition for annulling a child marriage may be filed in the district court only by a contracting party who was a child at the time of the marriage.
  • Such a petition may be filed at any time but before the child filing the petition completes two years of attaining majority.
• Maintenance and Residence for Female Contracting Party (Section 4):
  • The district court may order the male contracting party (or his parent/guardian if he is a minor) to pay maintenance to the female contracting party until her remarriage.
  • The court may also make a suitable order as to the female contracting party's residence until her remarriage.
• Legitimacy of Children (Section 6):
  • The annulment of a child marriage, every child begotten or conceived of such marriage before the decree is made shall be deemed legitimate.
• Punishments (Section 9- 11) :
  • For male adult marrying a child (Section 9): Rigorous imprisonment up to 2 years and/or fine up to one lakh rupees.
  • For solemnizing a child marriage (Section 10): Rigorous imprisonment up to 2 years and fine up to one lakh rupees.
  • For promoting or permitting solemnization of child marriages (Section 11): Rigorous imprisonment up to 2 years and fine up to one lakh rupees.
• Void Marriages (Section 12):
  • A marriage of a minor child is void if the child is taken or enticed out of the keeping of the lawful guardian or compelled by force or induced by deceit to go from any place or is sold for the purpose of marriage and made to go through a form of marriage.
• Cognizance and Nature of Offences (Section 15):
  • Offenses under this Act shall be cognizable and non-bailable.
• Child Marriage Prohibition Officers (Section 16):
  • The State Government shall appoint Child Marriage Prohibition Officers with duties including preventing child marriages, collecting evidence, creating awareness, and sensitizing the community.

What Amendment has the Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024 Introduced to PCM Act?

The Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024, Bill introduced several amendments to the Prohibition of Child Marriage (PCM) Act.

• Definition of "child":
  • The Bill amends Section 2(a) of the PCM Act, which defines a "child". The new definition states that a "child" is "a male or female who has not completed twenty-one years of age".
  • This change eliminates the distinction between males and females in the definition of a child, raising the age for both to 21 years.
• Definition of "Child Marriage":
  • The Bill amends Section 2(b) of the PCM Act, which defines "child marriage". While the original definition refers to a marriage where either of the contracting parties is a child, the Bill adds a clause giving it overriding effect.
  • The new clause states that this definition will apply "notwithstanding anything contrary or inconsistent therewith contained in any other law...including any custom or usage or practice governing the parties".
• Overriding Effect:
  • The Bill introduces a provision that gives it overriding effect over any other law, custom, usage, or practice that may be inconsistent with its provisions.
  • This ensures that the new age requirement will apply universally in Himachal Pradesh, regardless of personal laws or cultural practices.
• Time Period for Annulment:
  • The Bill amends Section 3 of the PCM Act, which allows a "contracting party who was a child at the time of the marriage" to file a petition to annul the marriage.
  • The original Act allowed this petition to be filed within two years of attaining majority.
  • The Bill increases this period to five years, allowing both women and men to file petitions to annul the marriage before they turn 23 years old.
• Minimum Age of Marriage for Women:
  • While not explicitly stated in the legal amendments, the overall effect of the Bill is to raise the minimum age of marriage for women from 18 to 21 years, making it equal to that of men.

How will the Bill’s Amendments to a Central Law Come into Force?

• Concurrent List Powers:
  • The subject of marriage falls under the Concurrent List of the Indian Constitution.
  • This allows both the central and state governments to pass laws on this topic.
• Potential conflict with central law:
  • The Himachal Pradesh bill amends the marriage age for women, making it inconsistent with the central PCM Act.
  • Article 254(1) of the Constitution states that if a state law on a Concurrent List subject is "repugnant" (inconsistent) with a central law, the repugnant portion of the state law will be void.
• Exception Process under Article 254(2):
  • For the state law to take effect despite the inconsistency, it must follow a specific procedure:
    • a. The bill must be reserved for the President's consideration.
    • b. The President must give assent to the bill.
• Steps for the Himachal Pradesh Bill:
  • The Governor of Himachal Pradesh (Shiv Pratap Shukla) must reserve the bill for consideration by the President (Droupadi Murmu).
  • President Murmu must then decide whether to give her assent to the bill.
• Only after receiving presidential assent can the amendments in the Himachal Pradesh bill come into force and be considered valid, despite differing from the central PCM Act.

Conclusion

The Prohibition of Child Marriage (Himachal Pradesh Amendment) Bill, 2024, which raises the minimum marriage age for women to 21 years, amends a central law. For this state amendment to take effect, it must navigate a specific constitutional process. The Governor of Himachal Pradesh must reserve the bill for the President's consideration, and the President must grant assent. Only after receiving this presidential assent can the bill's provisions become valid and enforceable in Himachal Pradesh, despite their inconsistency with the central Prohibition of Child Marriage Act.