1. What is the Objective of the Act?
The Act to provide for the constitution of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing speedy trial of offences against children or of violation of Child Rights and for matters connected therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN) General Assembly Summit in1990, which adopted a Declaration on Survival, Protection and Development of Children;
AND WHEREAS India has also acceded to the Convention on the Rights of the Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it incumbent upon the signatory States to take all necessary steps to protect children’s rights enumerated in the Convention;
AND WHEREAS in order to ensure protection of rights of children one of the recent initiatives that the Government have taken for Children is the adoption of National Charter for Children, 2003;
AND WHEREAS the UN General Assembly Special Session on Children held in May, 2002 adopted an Outcome Document titled “A World Fit for Children” containing the goals, objectives, strategies and activities to be undertaken by the member countries for the current decade;
AND WHEREAS it is expedient to enact a law relating to children to give effect to the policies adopted by the Government in this regard, standards prescribed in the CRC, and all other relevant international instruments.
2. What is meant by Child Rights under the Act?
“Child Rights” includes the children’s rights adopted in the United Nations convention on the Rights of the Child on the 20th November, 1989 and ratified by the Government of India on the 11th December, 1992.
3. What types of Child Rights Commissions envisaged under the Act?
Section 3 of the Act, provides for the National Commission for Protection of Child Rights. Section 17 of the Act, provides for the Constitution of State Commission for Protection of Child Rights.
4. How is National Commission for Protection of Child Rights constituted?
Under section 3 of the Act, the Central Government shall, by notification, constitute a body to be known as the National Commission for Protection of Child Rights to exercise the powers conferred on, and to perform the functions assigned to it, under this Act.
The Commission shall consist of, a Chairperson who is a person of eminence and has done outstanding work for promoting the welfare of children; and six Members, out of which at least two shall be women, from amongst persons of eminence, ability, integrity, standing and experience in the given fields.
The office of the commission is at Delhi.
5. How is the State Commissions for Protection of Child Rights constituted?
Under section 17 of the Act, the State Government may constitute a body to be known as the ………. (name of the State) Commission for Protection of Child Rights to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this Chapter.
The State Commission shall consist of the following Members, namely, a Chairperson who is a person of eminence and has done outstanding work for promoting the welfare of children; and six Members, out of which at least two shall be women, from amongst persons of eminence, ability, integrity, standing and experience in the given fields.
The headquarter of the State Commission shall be at such place as the State Government may, by notification, specify.
6. What is the Constitution of the National and State commissions?
The Commission shall consist of, a Chairperson who is a person of eminence and has done outstanding work for promoting the welfare of children; and six Members, out of which at least two shall be women, from amongst persons of eminence, ability, integrity, standing and experience in the given fields,
- Child health, care, welfare or child development;
- juvenile justice or care of neglected or marginalized children or children with disabilities;
- elimination of child labour or children in distress;
- child psychology or sociology; and
- laws relating to children.
7. What are the functions of the Commissions?
Section 13, Functions of Commission
- The Commission shall perform all or any of the following functions, namely:
- examine and review the safeguards provided by or under any law for the time being in force for the protection of child rights and recommend measures for their effective implementation;
- present to the Central Government, annually and at such other intervals, as the Commission may deem fit, reports upon the working of those safeguards;
- inquire into violation of child rights and recommend initiation of proceedings in such cases;
- examine all factors that inhibit the enjoyment of rights of children affected by terrorism, communal violence, riots, natural disaster, domestic violence, HIV/AIDS, trafficking, maltreatment, torture and exploitation, pornography and prostitution and recommend appropriate remedial measures;
- look into the matters relating to children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with law, juveniles, children without family and children of prisoners and recommend appropriate remedial measures;
- study treaties and other international instruments and undertake periodical review of existing policies, programmes and other activities on child rights and make recommendations for their effective implementation in the best interest of children;
- undertake and promote research in the field of child rights;
- spread child rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, seminars and other available means;
- inspect or cause to be inspected any juvenile custodial home, or any other place of residence or institution meant for children, under the control of the Central Government or any State Government or any other authority, including any institution run by a social organisation; where children are detained or lodged for the purpose of treatment, reformation or protection and take up with these authorities for remedial action, if found necessary;
- inquire into complaints and take suo motu notice of matters relating to,
- deprivation and violation of child rights;
- non-implementation of laws providing for protection and development of children;
- non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children,
or take up the issues arising out of such matters with appropriate authorities; and
- such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions.
- The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
8. What are the powers of the Commission relating to inquiries?
Section 14 provides for Powers relating to inquiries
- The Commission shall, while inquiring into any matter referred to in clause (j) of sub-section (1) of section 13 have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and, in particular, in respect of the following matters, namely:
- summoning and enforcing the attendance of any person and examining him on oath;
- discovery and production of any document;
- receiving evidence on affidavits;
- requisitioning any public record or copy thereof from any court or office; and
- issuing commissions for the examination of witnesses or documents.
- The Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
9. What are the steps envisaged by the Act after inquiry?
Section 15 provides for Steps after inquiry
The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:
- where the inquiry discloses, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
- approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
- recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.
10. Under what conditions a Member or Chairperson of the Commission are removed from the office and can they vacate the office?
Section 7, Removal from office,
- Subject to the provisions of sub-section (2), the Chairperson may be removed from his office by an order of the Central Government on the ground of proved misbehaviour or incapacity.
- Notwithstanding anything contained in sub-section (1), the Central Government may by order remove from office the Chairperson or any other Member, if the Chairperson or, as the case may be, such other Member,
- is adjudged an insolvent; or
- engages during his term of office in any paid employment outside the duties of his office; or
- refuses to act or becomes incapable of acting; or
- is of unsound mind and stands so declared by a competent court; or
- has so abused his office as to render his continuance in office detrimental to the public interest; or
- is convicted and sentenced to imprisonment for an offence which in the opinion of the Central Government involves moral turpitude; or
- is, without obtaining leave of absence from the Commission, absent from three consecutive meetings of the Commission.
- No person shall be removed under this section until that person has been given an opportunity of being heard in the matter.
Section 8, Vacation of Office,
- If the Chairperson or, as the case may be, a Member,
- becomes subject to any of the disqualifications mentioned in section 7; or
- tenders his resignation under sub-section (2) of section 5,
his seat shall thereupon become vacant.
- If a casual vacancy occurs in the office of the Chairperson or a Member, whether by reason of his death, resignation or otherwise, such vacancy shall be filled within a period of ninety days by making afresh appointment in accordance with the provisions of section 4and the person so appointed shall hold office for the remainder of the term of office for which the Chairperson, or a Member, as the case may be, in whose place he is so appointed would have held that office.
11. What is the terms of office and conditions of service of Chairperson and Members?
- The Chairperson and every Member shall hold office as such for a term of three years from the date on which he assumes office:
- Provided that no Chairperson or a Member shall hold the office for more than two terms;
- Provided that no Chairperson or a Member shall hold the office for more than two terms:
- in the case of the Chairperson, the age of sixty-five years; and
- in the case of a Member, the age of sixty years.
- The Chairperson or a Member may, by writing under his hand addressed to the Central Government, resign his office at any time.
12. Whether the vacancies in the Commission can invalidate the proceedings?
No act or proceeding of the Commission shall be invalid merely by reason of:
- any vacancy in, or any defect in the constitution of, the Commission; or
- any defect in the appointment of a person as the Chairperson or a Member; or
- any irregularity in the procedure of the Commission not affecting the merits of the case
13. What is the role of the Secretary of the Commission?
Section 21 (2),
The Secretary shall be responsible for the proper administration of the affairs of the State Commission and its day-to-day management and shall exercise and discharge such other powers and perform such other duties as may be prescribed by the State Government.
14. How is the panel of consultants constituted?
Rule 22, NCPCR, 2006
- The Commission may constitute a panel of consultants for assisting the Commission in a wide range of tasks such as investigation or inquiry; to serve on task forces or Committees and for research and analysis.
- The Commission may draw on experts from academic, research, administrative, investigative, legal or civil society groups to form the panel.
- The Commission may devise a transparent process for the empanelling these consultants so that they are available for quick delegation of tasks
15. What are the financial powers of the Commission?
Rule 24, NCPCR, 2006
- The Commission shall spend the sums of money received by it for the purposes of the Act.
- The Chairperson shall have all powers relating to financial transaction of the Commission, except in cases, which require prior approval of the Central Government.
- The Chairperson shall obtain prior approval of the Central Government in matters of creation of posts, revision of pay scales, procurement of vehicles, re-appropriation of funds from the head to another, permitting any officer of the Commission to participate in Seminars, conferences or training programmes abroad and such other matters determined by the Central Government, by order.
- The Chairperson shall, subject to such conditions and limitations and control and supervision, have powers to delegate his financial powers to any Member or the Member-Secretary:
Provided that no such powers shall be delegated in respect of incurring an expenditure on an item exceeding one lakh rupees without the prior approval of the Chairperson.
- The Chairperson shall have powers to engage any person or persons as consultant or consultants for a specific purpose and for a specific period on the terms and conditions agreed in advance relating to honorarium, travelling allowance, dearness allowance.
- The Member-Secretary shall have powers to execute all decisions taken by the Chairperson or any other Member on his behalf relating to financial matters.
- All financial powers of the Commission shall be governed by the General Financial Rules, delegation of financial powers rules and economy instructions issued by the Ministry of Finance of the Central Government from time to time.
16. What is the provision relating to filing of Annual Report?
Rule 23, NCPCR, 2016
- The Member-Secretary or any other officer of the Commission duly authorized by the Member-Secretary in this behalf shall prepare the annual report referred to in section l6 on or before the 30st day of June following the financial year to which that report relates.
[(1A) The annual report prepared under sub-rule (1) shall, after approval by the Commission, be signed and authenticated by the Member-Secretary.]
- The Commission shall also prepare special reports on specific issues as and when necessary under the direction of the Chairperson.
- The Central Government shall cause the annual report and the special reports of the Commission to be laid before each House of Parliament.
- The annual report shall include information on administrative and financial matters; complaints investigated/inquired into; action taken on cases; details of research; reviews; education and promotion efforts; consultations; details and specific recommendations of the Commission on any matter, besides any other matter that the Commission may consider warranting inclusion in the report.
[(4A) The Annual Report shall have a separate Chapter detailing the recommendations made by the Commission during that financial year.]
- In case the Commission considers that there could be a time lag for the preparation of the annual report, it may prepare and submit a special report to the Central Government.
- The forms in which the budget may be prepared and provided and forwarded to the Central Government shall be as provided in Forms I, II, III and IV of Schedule I.
- The estimated receipts and expenditure shall be accompanied by the revised budget estimates for the relevant financial year.
17. What is the role of Children’s Court?
Section 25 of the Act, provides
For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify, for each district, a Court of Session to be a Children’s Court to try the said offences:
Provided that nothing in this section shall apply if:
- a Court of Session is already specified as a special court; or
- a special court is already constituted, for such offences under any other law for the time being in force.
18. Is there any provision for Special Public Prosecutor?
Section 26 of the Act, provides
For every Children’s Court, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in the Court.
19. Is there any provision for Protection of Action taken in Good Faith?
Section 31, Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government, the Commission, the State Commission, or any Member thereof or any person acting under the direction either of the Central Government, State Government, Commission or the State Commission, in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules made there under or in respect of the publication by or under the authority of the Central Government, State Government, Commission, or the State Commission of any report or paper.
20. What is the role of the Commission under the Right of Children to Free and Compulsory Education Act, 2009?
Role of the Commissions under the RTE Act:
Section 31 of the Act, provides for, Monitoring of Child’s Right to Education.
- The National Commission for Protection of Child Rights constituted under section 3, or, as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006), shall, in addition to the functions assigned to them under that Act, also perform the following functions, namely:
- examine and review the safeguards for rights provided by or under this Act and recommend measures for their effective implementation;
- inquire into complaints relating to child’s right to free and compulsory education; and
- take necessary steps as provided under sections 15 and 24 of the said Commissions for Protection of Child Rights Act.
- The said Commissions shall, while inquiring into any matters relating to child’s right to free and compulsory education under clause (c) of sub-section (1), have the same powers as assigned to them respectively under sections 14 and 24 of the said Commissions for Protection of Child Rights Act.
- Where the State Commission for Protection of Child Rights has not been constituted in a State, the appropriate Government may, for the purpose of performing the functions specified in clauses (a) to (c) of sub-section (1), constitute such authority, in such manner and subject to such terms and conditions, as may be prescribed.
Section 32 of the Act, provides for, Redressal of Grievances
- Notwithstanding anything contained in section 31, any person having any grievance relating to the right of a child under this Act may make a written complaint to the local authority having jurisdiction.
- After receiving the complaint under sub-section (1), the local authority shall decide the matter within a period of three months after affording a reasonable opportunity of being heard to the parties concerned.
- Any person aggrieved by the decision of the local authority may prefer an appeal to the State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be.
- The appeal preferred under sub-section (3) shall be decided by State Commission for Protection of Child Rights or the authority prescribed under sub-section (3) of section 31, as the case may be, as provided under clause (c) of sub-section (1) of section 31.
21. What is the role of the Commissions for Protection of Child Rights Act, under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) ?
Section 28, Designation of Special Courts
- For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a children’s court under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section.
- While trying an offence under this Act, a Special Court shall also try an offence other than the offence referred to in subsection (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial.
- The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000 (21 of 2000) shall have jurisdiction to try offences under section 67B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act, or conduct or manner or facilitates abuse of children online.
Section 44, Monitoring of implementation of Act
- The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17, of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) shall, in addition to the functions assigned to them under that Act, also monitor the implementation of the provisions of this Act in such manner as may be prescribed.
- The National Commission or, as the case may be, the State Commission, referred to in sub-section (1), shall, while inquiring into any matter relating to any offence under this Act, have the same powers as are vested in it under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
- The National Commission or, as the case may be, the State Commission, referred to in sub-section (1), shall, also include, its activities under this section, in the annual report referred to in section 16 of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
21. What is the Role of the Commission under Juvenile Justice (Care and Protection of Children) Act, 2015, JJ Act, 2015?
Section 109, Monitoring of implementation of Act
- The National Commission for Protection of Child Rights constituted under section 3, or as the case may be, the State Commission for Protection of Child Rights constituted under section 17 (herein referred to as the National Commission or the State Commission, as the case may be), of the Commissions for Protection of Child rights Act, 2005 (4 of 2006), shall, in addition to the functions assigned to them under the said Act, also monitor the implementation of the provisions of this Act, in such manner, as may be prescribed.
- The National Commission or, as the case may be, the State Commission, shall, while inquiring into any matter relating to any offence under this Act, have the same powers as are vested in the National Commission or the State Commission under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
- The National Commission or, as the case may be, the State Commission, shall also include its activities under this section, in the annual report referred to in section 16 of the Commissions for Protection of Child Rights Act, 2005 (4 of 2006).
1. What is the objective of the Prohibition of Child Marriage Act, 2006 (PCMA) ?
The objective of PCMA is prohibition of solemnisation of child marriages and for matters connected therewith and incidental thereto.
2. How has the PCMA evolved?
The Child Marriage Restraint Act, 1929, popularly known as Sarda Act was passed by the Imperial Council of India on 28th Septemb,1929. The Act fixed the age of marriage for girls at 14 years and that of boys at 18 years which was later in the year 1978 amended to 18 for girls and 21 for boys. The Act was known as Sarda Act after name of its staunch supporter, Harbilas Sarda.
The All-India Women’s Conference, Women’s Indian Association National Council of Women in India and Muslim women presented their views to the Joshi Committee in favour of raising the age limit of marriage. The Joshi Committee presented its report before the Imperial Council of India on 20 June 1929.
This law was poorly implemented by the Britishers as they didn’t want to antagonise Indian clergies and perhaps the same psychosis continued even after independence. The Act was amended in the year 1978 and finally the Act was superseded by The Prohibition of Child Marriage Act, 2006, making a paradigm shift from, ‘Restraint to Prohibition’, making the offence under new Act cognizable and non bailable.
3. Which Sustainable Development Goals (SDGs) are involved in the issue of child marriage?
In case if we fail in stopping child marriage completely by 2030, we will fail in achieving following SDGs and our International commitments,
SDG 1: No Poverty
SDG 3: Ensure healthy lives and promote wellbeing for all at all ages,
SDG4: Quality Education,
SDG 5: Achieve Gender equality and empower all women and girls,
SDG 8: Promote, sustain, inclusive and sustainable economic growth, full and productive employment and decent work for all,
SDG10: Reduced Inequalities,
SDG 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective accountable and inclusive institution at all level.
4. What is child marriage?
According to PCMA a child marriage is a marriage means a marriage to which either of the contracting parties is a child;
This means a marriage in which either the girl or the boy, the contracting parties, is a child or both of them are children.
5. Who is a child under PCMA?
A child under PCMA means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;
Child marriage thereby is a marriage, in which either the girl is of less than eighteen years of age or the boy is of less than twenty-one years of or both of them are less than eighteen years of age and less than twenty-one years of age in case of a girl child and male child, respectively.
6. What is the status of a child born out of Child marriage?
Provisions of Section 6 of PCMA with Legitimacy of children born of child marriages. It reads, notwithstanding that a child marriage has been annulled by a decree of nullity under section 3, every child be gotten or conceived of such marriage before the decree is made, whether born before or after the commencement of this Act, shall be deemed to be a legitimate child for all purposes.
7. What is void marriage?
In the light of section 12 of PCMA, marriage of a minor child to be void in certain circumstances.
—Where a child, being a minor—
- is taken or enticed out of the keeping of the lawful guardian; or
- by force compelled, or by any deceitful means induced to go from any place; or
- is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
such marriage shall be null and void.
A child marriage can be declared null and void by way of decree of nullity of marriage by the appropriate court, as all child marriages under the provisions of section 3 of the Act are voidable and the marriages in contravention of injunction orders under section 13 are void ab initio under section 14 of the Act. These can be understood as follows:
- A marriage which is void is “non-est” and it is not necessary that it be set aside though it may be sometimes convenient to do so. (Suresh Chandra Vs State of W. B., AIR 1976 CAL 110-113)
- A null and void marriage means a marriage having no force, binding power, or validity.
- VOIDABLE MARRIAGE: A marriage which is initially invalid but which remains in effect unless terminated by the order of the appropriate court,
- AB-INITIO VOID MARRIAGE: Marriage that do not exist, not existing since inception.)
8. What is voidable marriage?
According to section 3 of the Act, Child marriages to be voidable at the option of contracting party being a child. — (1) Every child marriage, whether solemnised 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:
- Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.
- If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.
- The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.
8. What is voidable marriage?
According to subsection 4 of section 3, (4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:
Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.
10. Which is the Appropriate Court to pass any order under section 3,4 and 5 of the Act?
Section 8 provides for Court to which petition should be made. —For the purpose of grant of reliefs under sections 3, 4 and 5, the district court having jurisdiction shall include the district court having jurisdiction over the place where the defendant or the child resides, or where the marriage was solemnised or where the parties last resided together or the petitioner is residing on the date of presentation of the petition.
11. What is void ab initio marriage?
According to section 14 of the Act, Child marriages in contravention of injunction orders to be void. —Any child marriage solemnised in contravention of an injunction order issued under section 13, whether interim or final, shall be void ab initio.
12. What is an injunction order?
Section 13 provides for Power of court to issue injunction prohibiting child marriages.
- Notwithstanding anything to the contrary contained in this Act, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnised, such Magistrate shall issue an injunction against any person including a member of an organisation or an association of persons prohibiting such marriage.
- A complaint under sub-section (1) may be made by any person having personal knowledge or reason to believe, and a non-governmental organisation having reasonable information, relating to the likelihood of taking place of solemnisation of a child marriage or child marriages.
- The Court of the Judicial Magistrate of the first class or the Metropolitan Magistrate may also take suomotu cognizance on the basis of any reliable report or information.
- For the purposes of preventing solemnisation of mass child marriages on certain days such as AkshayaTrutiya, the District Magistrate shall be deemed to be the Child Marriage Prohibition Officer with all powers as are conferred on a Child Marriage Prohibition Officer by or under this Act.
- The District Magistrate shall also have additional powers to stop or prevent solemnisation of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.
- No injunction under sub-section (1) shall be issued against any person or member of any organisation or association of persons unless the Court has previously given notice to such person, members of the organisation or association of persons, as the case may be, and has offered him or them an opportunity to show cause against the issue of the injunction:
Provided that in the case of any urgency, the Court shall have the power to issue an interim injunction without giving any notice under this section.
- An injunction issued under sub-section (1) may be confirmed or vacated after giving notice and hearing the party against whom the injunction was issued.
- The Court may either on its own motion or on the application of any person aggrieved, rescind or alter an injunction issued under sub-section (1).
- Where an application is received under sub-section (1), the Court shall afford the applicant an early opportunity of appearing before it either in person or by an advocate and if the Court, after hearing the applicant rejects the application wholly or in part, it shall record in writing its reasons for so doing.
- Whoever knowing that an injunction has been issued under sub-section (1) against him disobeys such injunction shall be punishable with imprisonment of either description for a term which may extend to two years or with fine which may extend to one lakh rupees or with both:
Provided that no woman shall be punishable with imprisonment.
13. Which orders can be passed under sections 4 and 5 of the Act?
Section 4. Provision for maintenance and residence to female contracting party to child marriage.
- While granting a decree under section 3, the district court may also make an interim or final order directing the male contracting party to the child marriage, and in case the male contracting party to such marriage is a minor, his parent or guardian to pay maintenance to the female contracting party to the marriage until her remarriage.
- The quantum of maintenance payable shall be determined by the district court having regard to the needs of the child, the lifestyle enjoyed by such child during her marriage and the means of income of the paying party.
- The amount of maintenance may be directed to be paid monthly or in lump sum.
- In case the party making the petition under section 3 is the female contracting party, the district court may also make a suitable order as to her residence until her remarriage.
14. What are the punishments of child marriage?
Punishments are provided under sections 9,10 and 11 of the Act,
Sec 9. Punishment for male adult marrying a child. —Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
Sec 10. Punishment for solemnising a child marriage. —Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
Sec 11. Punishment for promoting or permitting solemnisation of child marriages.
- Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees:
Provided that no woman shall be punishable with imprisonment.
- For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.
15. What type of crime is child marriage?
According to Section 15 Offences to be cognizable and non-bailable. —Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be cognizable and non-bailable.
16. Child Marriage Prohibition Officer and their powers.
Section 16 provides for, Child Marriage Prohibition Officers (Child Marriage Prohibition Officers to be public servants).
- The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.
- The State Government may also request a respectable member of the locality with a record of social service or an officer of the Gram Panchayat or Municipality or an officer of the Government or any public sector undertaking or an office bearer of any non-governmental organisation to assist the Child Marriage Prohibition Officer and such member, officer or office bearer, as the case may be, shall be bound to act accordingly.
- It shall be the duty of the Child Marriage Prohibition Officer:
- to prevent solemnisation of child marriages by taking such action as he may deem fit;
- to collect evidence for the effective prosecution of persons contravening the provisions of this Act;
- to advise either individual cases or counsel the residents of the locality generally not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages;
- to create awareness of the evil which results from child marriages;
- to sensitize the community on the issue of child marriages;
- to furnish such periodical returns and statistics as the State Government may direct; and
- to discharge such other functions and duties as may be assigned to him by the State Government.
- The State Government may, by notification in the Official Gazette, subject to such conditions and limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject to such conditions and limitations, as may be specified in the notification.
- The Child Marriage Prohibition Officer shall have the power to move the Court for an order under sections 4, 5 and 13 and along with the child under section 3.
17. Is POCSO Act, 2012 applicable in the case of child marriage?
Yes, the provisions of the POCSO Act are applicable in the case of child marriage. For two important judgments by Hon’ble Supreme Court, please visit https://cracr-pd.org/supreme-court-and-high-courts-rulings-related-to-children/
18. Child marriage and Juvenile Justice Act, 2015.
Section 2 (14) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child in need of care and protection (CNCP) and includes a child who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnization of such marriage 2(14)(xii). Provisions related to CNCP are applicable to a child who is at imminent risk of marriage and also provisions under section 2(14) (ix) and (x) are also applicable.
19. Child marriage and RTE Act, National Education Policy, 2020 and PMKVY.
Section 3 of the RTE Act, provides makes education a fundamental right of every child between the ages of 6 and 14 till the completion of his or her elementary education. A girl child is ideally expected to complete her primary education till the age of fourteen and is highly improbable that the child is psychologically, mentally and educationally matured enough to take up challenges of marriage below the age of 18years.
The National Education Policy, 2020 provides for 5+3+3+4 school curriculum with 12 years of schooling and 3 years of Anganwadi/pre schooling Foundation Education. So even under the National Education Policy a minimum of 15 years is required to complete school education.
The eligibility condition for skill development under PMKVY is 18 years of age, meaning thereby no girl child victim is eligible even for skilling.
20. Child marriage, early pregnancy and rights of a girl child.
According to the article, The Third National Family Survey, conceiving a Tragedy (Courtesy Indiatimes.com), 8.32 Crore girls in India get married before legal age and More than 16 % conceive within one year of marriage, about 9.5 lakh succumb during child birth.
According to UNICEF study, “Child marriage ends childhood. It negatively influences children’s rights to education, health and protection. These consequences impact not just the girl directly, but also her family and community.
A girl who is married as a child is more likely to be out of school and not earn money and contribute to the community. She is more likely to experience domestic violence and become infected with HIV/AIDS. She is more likely to have children when she is still a child. There are more chances of her dying due to complications during pregnancy and childbirth.
21. Is a child marriage a legal-socio issue or a socio-legal issue?
NHFS4 data show,
Twenty-eight percent of women age 18-29 and 17 percent of men age 21-29 marry before reaching the legal minimum age at marriage. About two-fifths of women marry before reaching the legal minimum age at marriage in West Bengal (44%), Bihar (42%), Jharkhand (39%), and Andhra Pradesh (36%). About one-third of women in Rajasthan, Assam, Madhya Pradesh, and Tripura (33% each), as well as Dadra & Nagar Haveli (32%) and Telangana (31%) marry before reaching the legal minimum age at marriage. The percentage of women marrying before reaching the legal minimum age of 18 is lowest in Lakshadweep (5%), Jammu & Kashmir and Kerala (9% each), and Himachal Pradesh and Punjab (10% each) (Table 6.4). y About one-fourth of men age 21-29 in Rajasthan and Madhya Pradesh (28% each), Bihar and Jharkhand (27% each), Dadra & Nagar Haveli and Gujarat (26% each), and Arunachal Pradesh (24%) marry before the minimum legal age at 21 years. The lowest proportions of men marrying below the legal age at marriage are in Kerala (2%), Chandigarh (4%), Puducherry and Goa (5% each), Himachal Pradesh (6%), and Tamil Nadu and Andaman & Nicobar Islands (7% each).
The Graph above shows the child marriage cases reported to police from 2016 to 2019. Contrary to NHFS data very few child marriage cases are reported to the police and as such it shows exceptionally high degree of acceptability to the child marriage in Indian society. So, we conclude that child marriage is Socio-Legal Issue.