Critique on the Prohibition of Child Marriage (Amendment) Bill, 2021 in the Light of “Romeo-Juliet” Clause under POCSO Act and Impact of the Bill on Infant Mortality Rate and Maternal Mortality Rate in India

Introduction

The Lok Sabha introduced the Prohibition of Child Marriage (Amendment) Bill (the Bill) in December 2021¹ to amend the Prohibition of Child Marriage Act, 2006² (PCMA, 2006). The Bill increases the marriageable age for females to 21 years on a par with the age of male counterparts. It closes the room for social and religious practices promoting child marriage by having an overriding effect on the personal laws of India which are contrary to the provisions of the Bill. However, as per NFHS-5 Report³, about 23.3% of the women aged between 20-24 years married before they turned 18. This raises the question of whether increasing the age of marriage for a woman reduces child marriage in the country. With the increase of the “Romeo-Juliet clause” by various High Courts under the Protection of Children from Sexual Offences (POCSO) Act, 2012,⁴ the “Bill” poses a threat to the autonomy of women.

The need for Amendment in PCMA, 2006 on the basis of health indicators

The foundation of the Bill traces back to the Budget Session 2020-2021 wherein the Union Finance Minister proposed to appoint a task force⁵ to examine the relationship between child marriage and motherhood on various health indicators that includes:

(i) Infant Mortality Rate (IMR);

(ii) Maternal Mortality Rate (MMR);

(iii) Sex Ratio at Birth;

(iv) Child Ratio at Birth;

(v) Total Fertility Rate; and

(vi) Child Sex Ratio.

The observation of the Task Force as well as the objectives of the “Bill”⁶ suggests that increasing the age of marriage in females to 21 years would reduce infant mortality rate and maternal mortality rates in India.

However, a closer look at the data from the Sample Registration System (SRS) Bulletin, 2020⁷ suggests that IMR has declined from 48% to 31% in rural areas and 29% to 19% in urban areas in the last decade. In another report by SRS on Maternal Mortality in India, 2016-2018⁸, the MMR declined from 130 per lakh live births in 2014-2016 to 113 per lakh live births in 2016-2018; thus, showing that the decline of IMR and MMR in the country is independent of the increase in the age of marriage in females. A similar response was recorded from the Ministry of Women and Child Development in one of its responses to an unstarred question in the Lok Sabha, has stated that no credible data has suggested a link between child marriage, IMR and MMR in the country.⁹

The increase of romantic relationships under the POCSO Act and its impact on “the Bill”

The debate on marriageable age and the age of consent is an important aspect of the Bill. Recently, the Chief Justice of India, Dr D.Y. Chandrachud has raised an alarm regarding the increased cases of sexual relationships between consenting adolescents under the Pocso Act and appealed to Parliament to relook the age of consent¹⁰. With the increasing cases of romantic relationships among minors, many High Courts have acquitted the accused involved in consensual sexual relationships between 16-18 years. The Single Judge Bench of Delhi High Court¹¹ stated that the Pocso Act aims to protect children from sexual exploitation and not to criminalise consensual sexual relationships. In another case, the Madras High Court¹² raised an alarm regarding the misuse of the POCSO Act in using it against consensual relationships. What came to be a law to render justice for the victim of child abuse, can be used to abuse the process of law.

As per the report of Enfold Foundation¹³, out of 1715 cases registered by the Special Courts of Maharashtra, West Bengal and Assam between 2016-2020 in 87.9% of the cases the victim admitted that she was involved romantically with the accused. The lack of the intention of the accused to sexually exploit the victim and the victim being capable of consenting to the sexual act has resulted in the acquittal.

If this “Bill” were passed, it would lead to such an absurd situation wherein, a female can have a consensual sexual relationship between 16-18 years but not have the right to marry before 21 years. Further, the Supreme Court in Shakti Vahini v. Union of India¹⁴ stated that when two consenting adults have chosen each other as life partners, it is recognised and respected under Articles 19¹⁵ and 21¹⁶ of the Constitution of India.

Conclusion and way forward

The social standing of a female is evaluated by her capacity to bear children and do household chores in many traditional societies, the law (PCMA, 2006) does not have much significance in curbing child marriages. Neither the arrests made by the police as seen in the State of Assam¹⁷ nor increasing the marriageable age for women will eradicate child marriages in India. Such punitive measures might further curb the autonomy of the women desirous of getting married.

The better recourse should be focusing on the factors contributing to child marriages in India. Lack of awareness, poverty and financial constraints, gender expectation, religious customs, and lack of education are such factors. The widely affected social norms may vary from one place to another, for instance, mass child marriages on Akshaya Tritiya¹⁸ are common in North Indian States and the marriage of girls with maternal uncles with a huge age gap is common in West Bengal.¹⁹ To eradicate child marriage from such social norms the Government should incentivitivise child-free marriage communities. There is a strong link between the low level of education and child marriages in India.²⁰ Thus, rewarding and incentivising through schemes involving conditional cash transfers to girls who remain unmarried and continue education after 18 years of age should be adopted and promoted in all States to empower females in changing gender norms.