On 15 February, the Gauhati High Court has ruled that there is no need for the accused to be interrogated in a detention facility while proceedings are pending, noting that the widespread arrests made as part of the campaign against child marriage caused “havoc in the private lives of people.”
The court also criticised the Assam government for enforcing strict regulations like the Protection of Children from Sexual Offenses Act, 2012 (POCSO), and asserted that the accusations of rape against those accused of child marriage are “totally bizarre.”
After hearing a batch of petitions by a group of accused for anticipatory bail and interim bail, Justice Suman Shyam allowed all the petitioners to be released on bail with immediate effect. “These are not matters of custodial interrogation. You (state) proceed as per law, we have nothing to say. If you find somebody guilty, file a chargesheet. Let him or her face trial and if they are convicted, they are convicted,” the judge said.
Child marriage is an age-old issue and it is prevalent around the world including India in varying degrees. In India, the law of the land prohibits child marriage but Islam allows child marriage but with some strict rider. In Assam, schools—not jails—are the real solution: A crackdown on child marriage ignores the underlying issues such as women’s employment and girls’ education.
Experts argue that child marriage should be abolished but the path chosen must be a pragmatic one and should not be based on hate and prejudices. Education and employment can play instrumental role in preventing child marriage not only in Assam but across Indian. As per report by the International Center for Research on Women, one third of girls in the developing world are married before the age of 18 and 1 in 9 are married before the age of 15.
On January 23, the Assam cabinet instructed the police to conduct a widespread crackdown on people who practise child marriage—to arrest them and to start legal proceedings. Since then, more than 2,000 persons have been detained as a result of the more than 4,000 FIRs against child marriage in the state that have been filed.
The Protection of Children from Sexual Offenses (POCSO) Act has been used to file charges against those who married girls under the age of 14, while the Prohibition of Child Marriage Act, 2006 has been used to file charges against those who married girls between the ages of 14 and 18. The Assam government has been lauded and criticized as well for this initiative.
Faizan Mustafa, Ex-Vice Chancellor of NALSAR Law University in his article in The Indian Express on 7 February has reasonably argued on the ongoing child marriage controversy in Assam by saying, “Instead of criminalising child marriage, Assam CM Himanta Biswa Sarma should heed PM Modi’s call of Beti Bachao Beti Padhao. The Assam government should use a mass campaign to educate parents, rather than a coercive criminal law, to deal with the problem of child marriages.
He added, “As many as 650 million women in the world today were married as children. About a third of them were married before the age of 15. In India, which has the dubious distinction of being home to the most number of child brides, UN estimates suggest that 1.5 million girls get married before they turn 18. About 16 per cent of girls in the age group of 15-19 are married at present. According to the 2011 census, 44 per cent of women in Assam were married before the age of 18. The figures for Rajasthan, Bihar and Madhya Pradesh were 47 per cent, 46 per cent and 43 per cent, respectively.”
On the ongoing child marriage controversy in Assam, Abdur Razzaque Bhuyan, legal expert from Assam said, “The recent activities of the government of Assam particularly the home department which is headed by the Chief Minister of Assam has resulted in very panic and a chaotic situation. As a conscious citizen I personally support the move but the problem is child marriage is an old menace for the entire nation. For restraining the child marriage, The British government in the pre-constitutional era enacted a legislation under the name Child Marriage Restrain Act 1929. After looking through this act one can feel that this social evil of child marriage was there even before Constitutional era.”
“The fact is since the 1929 till date no government took any action to restrain child marriages. This law of 1929 had been subsequently repealed when the prohibition of the Child Marriage Act of 2006 had been enacted. This law had already repealed the 1929 law. This law had been incorporated through some stringent provisions for punishment against child marriage and that punishment imposes under 9. 10, 11 with a provision for punishment of 2 years jail as well as fine of Rs 1 lakh or both. There was another provision regarding the custody of the child as to who will take the custody of the child was defined under section 13 of the court. There is also specific provision of the District Court this child marriage can be restrained or injunction order can be passed.”
He added, “Child Marriage Prohibition Officers was also required to be appointed by the government i.e. Child Marriage Prohibition Officer under section 16. But till date we have learnt that no such officers have been appointed by the government for the purpose of prohibiting the child marriage. Such officers were to be appointed by an official gazette notification for the particular territorial jurisdiction area specified in the notification itself. This very reflects the attitude of the government that they were not serious initially from 2006 to 2023 regarding prohibition of child marriage.”
“The recent crackdown has been carried out in haste. Due to negligence and irresponsible behavior of the government the child marriage could not be prohibited. We have also learnt that the recent crackdown against child marriage has been widely misused. Information is coming that some false and concocted FIRs has also been lodged. Action of the government has also been misused by some anti-social elements and village heads and local police. People here are suffering here and even people with legal marriage are also being harassed, said Advocate Razzaque.
On the complexity of the existing law, Razzaque said, “Section 3 of the act further clarifies that the contracting party that is the parents of the child which means parent from the boy or from the girl have to move a competent district civil court with a prayer petition filing therein to declare the marriage as null and void. And they are also required to seek a degree that this marriage is a void marriage and the limitation period prescribed therein that it should be within two years, but it should not be after the attaining the age of majority by both the boy or girl.”
‘So now one very big legal question is there if somebody is not interested to prefer an application before the competent court within a period of two years, then there is no further scope for preferring an application for declaring the marriage as a void marriage. So, on the one hand the marriage will survive, it will continue the marital status will have the legal sanction. But on the other hand, the criminality will survive. That means once you marry a child there is a panel provision, as I have already told under section 9, 10 and 11. And on the other hand, the marriage will survive. So, this provision of the act appears to be self-defeating that the marriage will have the legal approval or legal sanction and on the other hand, even after the marriage is digging you are liable to be criminally prosecuted and there is a provision for jail of two years and along with the fine of Rs one lakh,” he said.
“So, these are the very complicated legal issues and to be addressed at the time when the matter reaches to the court of law. So, we are also thinking in that line of challenging this entire aspect in an appropriate form. And secondly, the inclusion the police, while they are registering a case is also registering the under the provisions of the prevention of child from the sexual offences act 2012. So, these are the very serious issue. And secondly, the very law that the Child Marriage Prohibition law 2006 that before coming into the force of the act or after coming into force of the act, all child marriages will covered under the act of 2006. So, it appears that though the act was enacted in the year 2006 but it has given a retrospective effect. So, this is also barred article 20 sub article one of the Constitution of India and it is well settled that any criminal law cannot be given a retrospective effect,” said the legal expert from Assam.
“The targeting and demonising of Muslims in general, and criminalising their social and cultural practices which they perhaps link with their faith, had reached its pinnacle, we thought, with the tamasha that the BJP and Mr N Modi himself made on their way eventually to passing a law to proscribe triple talaq in the guise of upholding the gender rights of women of the community. But that pales into insignificance, as indeed also does the hounding of young men on their pretext of stopping “love jehad, in the face of the mass arrests in Assam, of men on charges of marrying girls under 18 years, the current official date at which young women can marry,” said John Dayal who is a noted social and human rights activist.
He added, “That this is being done with retrospect effect in the state is taking legal interpretations to ridiculous limits. Even during the emergency when the two-child norm and compulsory sterilisation had come into official force, the government understood human biology and stopped short of retrospective action with a cut-off date. If this were to be implemented in, say, Rajasthan, lakhs of young men from even the majority communities would find themselves at risk of arrest for marrying child brides.”
Also Read: Child Marriages Hunt could be counter-productive
“The BJP’s hypocrisy in keeping “social reforms “and gender justice just for the Muslim community further tells us that it will be fighting the 2024 general elections on a platform of religious polarisation, Assam is anyway notorious for the savagery with which it tried to carry out its exercise of the national citizenship register and “weeding out” of foreigners. It turned out that a very large number of Bengali speaking Hindus were caught in the net designed for Muslims, had not been foreseen. The state had in fact designed and consorted what. Civil society termed as concentration camps for the people identified as foreigners, brought infamy to the state and the country,” opined Dayal. 
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