SOCIETY FOR ENLIGHTENMENT AND VOLUNTARY ACTION & ANR. versus UNION OF INDIA & ORS. (18/10/2024) — Supreme Court headnote

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Summary

In a public interest petition by an NGO over the poor enforcement of the Prohibition of Child Marriage Act, 2006, the Supreme Court (opinion by Chandrachud CJI) held that child marriage violates children's rights under Article 21 to choice, autonomy, sexuality, health, education and childhood. It read the Act alongside POCSO, the JJ Act and India's international obligations. It required States to appoint dedicated Child Marriage Prohibition Officers and issued detailed guidelines prioritising prevention over protection and protection over penalisation. It also suggested that Parliament consider outlawing child betrothals.

Issues

Whether, and what, directions should issue to the Union, States and UTs to enforce the Prohibition of Child Marriage Act, 2006 effectively, given the continued prevalence of child marriage and the low number of prosecutions.
Whether officers burdened with other duties may be designated as Child Marriage Prohibition Officers under Section 16 of the PCMA.
What constitutional rights are infringed by child marriage, and how international human rights obligations bear on the interpretation and enforcement of the domestic framework.
Whether the Court should declare that the PCMA prevails over personal laws, or address child betrothals.

Provisions considered

Section 16 (Child Marriage Prohibition Officers), Prohibition of Child Marriage Act, 2006Reading the CMPO's duties to prevent child marriages, gather evidence, counsel and sensitise communities, the Court held the role is not a statutory formality. Officers with other substantial duties cannot discharge it effectively, so each district must have an exclusive CMPO with adequate resources. (¶¶ 70, 71, 72, 73, 74, 75, 76, 77, 78)
Section 13 (injunctions; District Magistrate as CMPO on mass-marriage days), Prohibition of Child Marriage Act, 2006The Court explained the Magistrate's power to issue injunctions, including suo motu and interim, and the District Magistrate's deemed CMPO powers on days such as Akshaya Trutiya. It directed Magistrates to act proactively, with special attention to auspicious days of mass weddings. (¶¶ 66, 67, 68, 69, 211)
Sections 3 to 7, Prohibition of Child Marriage Act, 2006The Court explained that a child marriage is voidable at the option of the party who was a child, on a petition within two years of attaining majority. The Act provides for return of gifts, maintenance and residence of the female party until remarriage, custody and maintenance of children, legitimacy of children of such marriages, and modification of orders. (¶¶ 43, 44, 45, 46, 47, 48, 49, 50)
Sections 9, 10, 11 and 15, Prohibition of Child Marriage Act, 2006The Court noted that Section 9 lets the court choose imprisonment or fine for an adult groom, while Sections 10 and 11 mandate both. Section 11 covers anyone in charge of the child, including organisations, with a rebuttable presumption of negligent failure to prevent the marriage, and offences are cognizable and non-bailable. It observed that the absence of a mandatory minimum sentence has weakened enforcement. (¶¶ 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62)
Sections 12 and 14, Prohibition of Child Marriage Act, 2006The Court explained that a child marriage involving enticement, force or deceit, sale or subsequent trafficking, or solemnised in breach of an injunction, is void ab initio. (¶¶ 63, 64, 68)
Age of consent (eighteen years), Protection of Children from Sexual Offences Act, 2012; Indian Penal Code, 1860, Section 375; Bharatiya Nyaya Sanhita, 2023, Section 63The Court noted that the age of consent is eighteen, that Independent Thought struck down the marital rape exception for minor wives, and that the continued legal recognition of child marriage as voidable rather than void conflicts with POCSO's protective aim. (¶¶ 80, 81, 187)
Sections 2(14)(xii), 27, 105, 106 and 107, Juvenile Justice (Care and Protection of Children) Act, 2015Children at imminent risk of marriage are children in need of care and protection to be produced before Child Welfare Committees. The Court directed use of Special Juvenile Police Units, individual care plans and the Juvenile Justice Fund for girls at risk or whose marriages are annulled. (¶¶ 83, 84, 85, 86, 87, 88, 211)
Section 12(c), Legal Services Authorities Act, 1987Because every woman and child is entitled to legal services, legal services authorities must help minors seeking relief under the PCMA. NALSA was directed to frame an SOP for legal support and rehabilitation of child marriage victims. (¶¶ 95, 96, 211)
Articles 21 and 21A (with Articles 14, 15, 19(1)(a), 38(2), 39(f) and 51), Constitution of IndiaThe Court held that child marriage violates the Article 21 rights to self-determination, choice, autonomy and sexuality, reproductive freedom, health, and a childhood including education, sex education and development. It read the directive principles and Article 51 as imposing positive obligations on the State to eliminate the practice consistently with CEDAW and the CRC. (¶¶ 163, 167, 170, 171, 178, 181, 184, 188, 191, 192, 194, 197, 200, 204, 206)

Held

Child marriage is a social evil and every child marriage is a forced marriage, because a child cannot give free, full and informed consent. It deprives children, especially girls, of education, health and development and keeps families in cycles of poverty and patriarchal control. (¶¶ 2, 5, 12, 15, 18, 48, 140)
Child marriage violates Article 21: it denies children their self-determination, choice of partner, bodily and sexual autonomy and reproductive freedom, imposes serious health risks on child brides, and takes away the right to childhood, including education, information and sex education. Both girls and boys are harmed. (¶¶ 170, 171, 173, 176, 177, 178, 184, 188, 191, 192, 195, 196, 197)
Courts must give due regard to international conventions when construing domestic law, particularly where there is no inconsistency or domestic law is silent. India's ratification of CEDAW and the CRC, which set eighteen as the minimum marriage age, imposes a concrete obligation to prohibit and eliminate child marriage and to address its socio-economic causes. (¶¶ 163, 164, 165, 166, 167, 198, 199)
No officer with other responsibilities shall be appointed as the CMPO. States and UTs must appoint exclusive CMPOs in each district, equipped with adequate resources. A State or UT that considers exclusive CMPOs no longer necessary because child marriages have declined may seek leave from the Supreme Court to appoint a CMPO holding other duties at district level. (¶¶ 75, 76, 77, 78)
Enforcement should prioritise prevention before protection and protection before penalisation. Prosecution is not discouraged, but a solely harms-based approach that waits for the marriage to occur has proved ineffective at bringing social change. (¶¶ 210, 211)
Legal enforcement directions: CMPOs to publish quarterly reports and receive six-monthly training, with quarterly reviews of CMPOs and police. Collectors and Superintendents of Police are responsible for preventing child marriages and prosecuting facilitators, with particular attention to mass marriages and disciplinary action for failure. States are to consider integrating SJPUs and to constitute State and district Special Child Marriage Prohibition Units including social workers. (¶ 211)
Judicial and accountability directions: Magistrates to use Section 13 proactively, including suo motu injunctions, especially on auspicious mass-wedding days. The Union and States are to assess special fast-track courts for PCMA cases and report within a year, and strict action is to be taken against public servants who deliberately neglect duty in child marriage cases. (¶ 211)
Community, education and support directions include: annual State action plans with indicators; a 'Child Marriage Free Village' initiative; CMPO-led awareness campaigns; age-appropriate comprehensive sexuality education in school curricula; school reporting of sudden drop-outs; training for health workers, police, teachers and local leaders; consideration of scholarships, conditional cash transfers and compensation for girls opting out of child marriages; and a special scheme for women and girls who leave such marriages. (¶¶ 101, 211)
Monitoring directions include SOPs by NALSA, the Ministry of Women and Child Development and NCPCR; Panchayats and local leaders to be trained within three months and to report suspected child marriages within 48 hours; individual care plans for at-risk girls; a central online portal with anonymous reporting; a dedicated annual budget for each State; and institutionalising the Juvenile Justice Fund. (¶ 211)
Absent a constitutional challenge, the Court declined to declare whether the PCMA overrides personal laws, noting that the issue is pending before Parliament in the Prohibition of Child Marriage (Amendment) Bill, 2021, and kept the question open. It suggested that Parliament consider outlawing child betrothals, which the PCMA does not address and which could be used to evade it. (¶¶ 212, 213, 214, 215)

Result

Writ petition disposed of with detailed guidelines for implementing the PCMA, including exclusive district-level CMPOs. A status report on fast-track courts is due within a year. The judgment is to be sent to the concerned Union Ministries and circulated by the Ministry of Women and Child Development to all Chief Secretaries and Administrators, NALSA and NCPCR within four weeks for strict compliance.