February 22, 2024

By Nakshatra Gujrati

The author is fed up of being a law student!

Introduction

The Assam state government has cracked down over the husbands who are married to minor wives. The move is being dubbed as a boon for the wives, with the CM lauding DGP Singh’s record to arrest 2,044 people named in the FIRs, the police plan to arrest more 2,000 people.

When asked about the crackdown, CM Himanta Biswa Sarma stated :-

“The police will retrospectively book people who participated in child marriage in the last seven years and the focus will especially be on “mullahs, kazis, and pujaris” conducting these marriages and the move will continue till 2026 State Assembly Elections”

The arrests are more or like political jugglery than a check on child marriage, the government has not considered the adverse impacts of its decision before arresting these people. Once the husband is arrested, the wife who is pregnant may not have adequate financial resources to take care of her and its child. The decision to arrest people could have been the last resort, but it seems there is more to it. The article seeks to explain why the arrests are not justified constitutionally and adverse implications of the move.

The Step to Retrospectively Book People

The people arrested so far are husbands of the women who were either married as ‘child’ on the date of their marriage or are still under aged. The step to arrest retrospectively brings forth the constitutional question that ‘whether the arrests made are in violation of article 20(1) of the constitution?’. The article 20(1)[1]says that “no person is to be convicted of an offence except for violating a law in force at the time of commission of the act charged as an offence”.

In the present case, police are booking people under The Protection of Children from Sexual Offences Act (herein afterwards POCSO Act)[2] & The Prohibition of Child Marriage Act[3]. POCSO Act seeks to protect children from sexual abuse and penalize those who commit such offences, while the child marriage act prohibits marriage of those below 18 in case of women and 21 in case of men. Therefore, the people are being charged for the offences that came into force in 2006 & 2012. Moreover, DGP Singh stated that they collected data from 2020, 2021 & 2022 for confirmed cases of child marriage and then separated the cases that were cognizable and are now arresting the accused under those cases. Clearly, in these years POCSO and Prohibition of Child Marriage was in force. Though their arrest doesn’t attract the bar under article 20(1) of the constitution but, still the move has violated fundamental rights of those arrested and their wives as mentioned hereinafter.

Violation of Right to Life Under Article 21

After the Maneka Gandhi case[4], due process clause was imported into the Indian Constitution. According to article 21[5] of the Indian Constitution, the liberty of an individual can only be taken away by due process of law. The word due process ensures procedural fairness and adherence to principles of natural justice. The rampant arrests that are being made are not according to principles of natural justice. In addition to this, in case of Joginder Kumar[6], it was held that “arrest should normally be avoided except in case of heinous crimes”. According to section 3 of Prohibition of Child Marriage Act of 2006, the child marriage is voidable at option of contracting party being a child, that is to say, a girl who is minor and married to an adult, can get her marriage annulled if she wants to. The act doesn’t make child marriage void ab initio, rather it remains on the consent of the minor party to a marriage.

According to reputed media sources, the women that are pregnant are staging protests to secure release of their husbands who are sole breadwinner of the family. Not only this, a wife needs her husband when she is pregnant as he is her emotional support. The arrest of husbands will make their lives not only complicated but also the families might banish the women for getting their husbands arrested. In the case of Olga Tellis vs State of Bombay[7], the apex court held that “the term life under article 21 of the constitution is not only restricted to mere animal existence of a person, it means something more and it includes those faculties by which life is enjoyed”. In the present case, the wives need their husbands who are being detained by the government.

Possibility of Abuse of Power By The Police

The CM stated that men who married the girls under the age of 14 years will be booked under POCSO, while those who married girls of age 14 to 18 years will be booked under the Prohibition of Child Marriage Act. It is undisputable that girls of less than 14 years of age must be rescued and the men who were married to them must be booked for the said offence if there has been a case of sexual intercourse. But when such mass arrests are made and police are zealous to file plethora of FIRs, usually they do not think of the implications of filing case under POCSO or Prohibition of Child Marriage Act on the individuals, they are just concerned to please their political masters. Since POCSO criminalizes sexual intercourse with a girl below 18 years of age, the police can even charge men who were married to girls of age 15 years to 18 years of age. The possibility of abuse of power is not new, as police continues to file FIRs under section 66A of the Information Technology Act, 2000[8] which was struck down in the case of Shreya Singhal[9]. The fire brand arrests look good in figures, but when we look at an individual who is trapped in the criminal justice system suffers indefinitely and with him his entire family is trapped in a vicious circle.

Prosecution Under POCSO is Unreasonable

The IPC fails to define sexual offences against children and moreover the criminal justice system devised for adults cannot cater the needs of child victims and for that matter POCSO was brought into force to protect the children from such crimes and ensure a speedy justice to them. The state government’s move to charge men under POCSO is unreasonable for the following reasons :-

  1. The motive of government is contrary to intention of POCSO Act.
  2. The staggering number of child marriages in the years 2020, 2021 and 2022 happened because of pandemic.
  3. POCSO is a stringent legislation and will have an adverse impact on husband and his wife.

According to UNICEF, India has the largest number of child brides totaling to third of global total. In the year 2020, COVID-19 struck India that resulted in spurt of child marriages in India. The rural population in India had lost their jobs and didn’t have means to survive, their survival plan was to marry off their girls to a suitable match for her as well as family’s sustenance. According to a report by BBC, the Hindu and the Indian Express, most of the child marriages in the year 2020, 2021 and 2022 happened because of shoddy economical state of rural families. Moreover, the 205th Law Commission Report suggested that the indebtness of family and dowry are the main reasons for poor families to marry off their daughters at a tender age.

The sexual intercourse between a minor wife and his husband will amount to penetrative sexual assault under POCSO Act, in spite of the act being consensual. The punishment for this offence is at least 7 years of imprisonment. The Meghalaya High Court ruled that “consensual acts of love between minor couple is not sexual assault under POCSO”. The marriage among these rural couples is analogous to arranged adult marriages, where the family decides groom for the bride and vice versa and after their marriage they enter into a different phase of their lives. According to the report of Indian Express, the pregnant teenagers in Assam are afraid to visit the doctor for regular checkup as they fear their visit to the doctor can lead to legal trouble for their husbands. The women are in need of medical attention and care, the crackdown is scaring them off to avoid basic amenities that form a part of their article 21. The decision of state government to charge men of POCSO is unreasonable and will result in more negative consequences than positive.

Conclusion: The Move is Bane

Ironically, the crackdown that is being dubbed beneficial for these women is the most detrimental thing for them. The sudden crackdown on child marriage cases that happened 3 years ago has many implications on the family. Legally it sounds correct to arrest and punish them, but law is intertwined with society and law exists for greater good of the society. The government has failed to see the fact that the couples that are married are living their lives peacefully and, in most cases, happily, with some of them expecting a new member in their families. Once the husbands are arrested and put behind the bars, the pregnant minor wives will suffer the most. Constitutionally, the state remained silent for three years when it had means to stop the marriage on the day of happening, if government can collect data today, they could have prevented the marriages earlier. Ideally, the government should frame a strict policy to stop such cases in future and it should focus on measures that make families understand that girls are not burden and should be made independent and provided education. The government also fails to consider what will happen to these women once their husbands are behind the bars


[1] Constitution of India, 1949, article 20(1).

[2] The Protection of Children from Sexual Offences Act, No. 32, Acts of Parliament, 2012.

[3] The Prohibition of Child Marriage Act, No. 6, Acts of Parliament, 2006.

[4] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[5] Constitution of India, 1949, article 21.

[6] Joginder Kumar v. State of U.P., (1994) 4 SCC 260

[7] Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.

[8] Information Technology Act, No. 21, Acts of Parliament, 2000.

[9] Shreya Singhal v. Union of India, (2015) 5 SCC 1.

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: