Child marriages: Supreme Court orders mandatory sex education in schools

The Supreme Court on Friday 18 Oct gave comprehensive directions to address child marriages in India, issuing a specific order to integrate comprehensive sexuality education (CSE) into school curricula across all states and Union territories (UTs), even as it stopped short of declaring that the 2006 Prohibition of Child Marriage Act (PCMA) can override personal laws.

Turning down the Union government’s plea to declare that PCMA will prevail over personal laws governing marriage, a bench led by Chief Justice of India Dhananjaya Y Chandrachud cited the ongoing   deliberations in Parliament as a reason for not ruling on whether the act should supersede personal laws of various religious communities where marriages can take place before the age of majority -- 18 years.

Applicable personal laws in Islam allows a Muslim girl to enter into a contract of marriage after attaining puberty at 15 years whereas a set of common civil and criminal laws in India proscribes the marriage of girls under 18, and further makes sexual intercourse with minors a penal offence.

“The Prohibition of Child Marriage (Amending) Bill 2021 was introduced in Parliament on 21 December 2021. The bill was referred for examination to the Department Related Standing Committee on Education, Women, Children, Youth and Sports. The bill sought to amend the PCMA to expressly state the overriding effect of the statute over various personal laws. The issue, therefore, is pending consideration before Parliament,” noted the bench, also comprising justices JB Pardiwala and Manoj Misra.

Delivering an extensive judgment on a petition demanding stringent enforcement of PCMA, the bench underscored the significance of child protection, stating that the focus of the authorities must be on prevention and protection rather than just punitive action…

The top court came down hard on the existing provisions… But it refrained from ruling on the constitutionality of the law because there was no legal challenge raised to PCMA provisions.

The bench was hearing a PIL by non-governmental organisation Society for Enlightenment and Voluntary Action and activist Nirmal Gorana in 2017, alleging that PCMA was not being enforced in “letter and spirit”, as it delivered the verdict that marks a significant step in the fight against child marriage.

The bench highlighted that child marriages are not just unlawful but also violative of minors’ rights to freely choose their lives…

The court noted that child marriage is an affront to constitutional principles of equality, liberty and free expression, and stripped children of their right to self-determination, autonomy and sexuality…

Such marriages, it said, also impose social isolation and patriarchal burdens, with young girls facing forced conjugal relations and reproductive pressures, while boys bear premature responsibility as providers…

The minor is then boxed with the expectation of compulsory heterosexuality…Stressing that sexuality education is a vital tool in the long-term eradication of child marriage, the court directed that this initiative be aligned with frameworks established by the World Health Organisation (WHO) and other global experts in the field…. The content, the court directed , must be age-appropriate and culturally sensitive, empowering students with knowledge about their legal rights…It directed that Child Marriage Prohibition Officers (CMPOs) should be appointed at the district level, with exclusive responsibility for preventing child marriages. To strengthen enforcement, the court ordered that state governments allocate sufficient resources to these officers, and that collectors and superintendents of police take active roles in prosecuting individuals who facilitate or solemnise child marriages.

The court also called for the establishment of specialised police units and fast-track courts to handle cases of child marriage swiftly, recognising that delays in legal proceedings can lead to additional harm for the affected children...The judgment directed the National Legal Services Authority (NALSA) to conduct nationwide legal awareness campaigns to educate communities about the illegality of child marriage . NALSA was also tasked with providing free legal aid to the victims of child marriages..