Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No. 31. The Child Marriage Restraint Act, 1929 (19 of 1929)


Existing Clause

Section 3 : Punishment for male adult below twenty one years of age marrying a child - being a male of above eighteen years and below twenty one years, contracts a child marriage shall be punishable with simple imprisonment which may extend to fifteen days or with fine which may extend to one thousand rupees or with both.

Section 4 : Punishment for male adult above twenty years of age marrying a child - punishable with simple imprisonment which may extend to three months and shall also be liable to fine

Section 5 : Punishment for solemnizing a child marriage - Whoever perform, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend to three months and laso liable to fine, unless he proves that he had reason to believe that the marriage was not a child marriage.

Section 6 : Punishment for parent or guardian concerned in a child marriage: i) where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian, or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to three months and shall also be liable to fine:

Provided that no woman, shall be punishable with imprisonment.

2) For the purpose of this Section, it shall be presumed, unless child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.

Section 7 : Offences to be cognizable for certain purposes - The Code of Criminal Procedure, 1973 ( 2 of 1974) shall apply to offences under this Act as if they were cognizable offences - a) for the purpose of investigation of such offences and b) for the purpose of matters other than i) matters referred to in Section 42 of that Code, and ii) the arrest of a person without a warrant or without an order of a Magistrate.

Amendments of the Indian Penal Code, 1860 : Section 361: Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a made, or under eighteen years of age if a a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation : the words 'lawful guardian' in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception : This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Section 362 : Abduction - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person

Section 373 : Buying minor for purposes of prostitution, etc - Whoever buys, hires or otherwise obtains psossession of any person under the age of eighteen years with intent that such person shal at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be ;empllyed or used for any such purpose, shall be punished with imprisonment of either description fro a term which may extend to ten years, and shall also be liable to fine.

Explanation - I : Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obains possession of a femal under the age of eighteen years, shall until the contrary is proved, be presume to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.

Explanation - II : 'Illicit intercourse' has the same meaning as in section 372.

Suggested Amendment by NCW

Section 3 : Punishment for male adult below twenty one years of age marrying a child - being a male of above eighteen years and below twenty one years, contracts a child marriage shall be punishable with simple imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both.

Section 4 : Punishment for male adult above twenty years of age marrying a child - punishable with simple imprisonment of a minimum period of 15 days, which may extend to a period of one year and shall also be liable to fine

Section 5 : Punishment for solemnizing a child marriage - Whoever perform, conducts or directs any child marriage shall be punishable with simple imprisonment of a minimum period of 15 days, which may extend to one year and also liable to fine, unless he proves that he had reason to believe that the marriage was not a child marriage.

Section 6 : Punishment for parent or guardian concerned in a child marriage and those who knowingly attended/participated in a child marriage: i) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian, or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized including attendance/participation in child marriage, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment of a minimum of 15 days which may extend to one year and shall also be liable to fine:

Provided that no woman, shall be punishable with imprisonment.

2) For the purpose of this Section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized. After Section 6, the following Section shall be inserted:

6 A : Marriage of a Minor to be void in certain circumstances: Where a minor: a) Is taken or enticed out of the keeping of the lawful guardian; or b) by force compelled, or by any deceitful means inducted, to go from any place; or c) sold for the purpose of marriage; and subsequently made to go through a form of marriage, such marriage shall be null and void so declared by a decree of nullify provided this is done within one year of the minor child becoming 165 years of age.

Section 7 : Offences to be cognizable - An offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of the Code.

Section 13 : The following sections shall be added - i) The State Government shall, by notification in the Official Gazette, appoint for the whole State or for such part thereof as may be specified in that notification, an officer to e known as Child Marriage Prevention Officer. ii) It shall be the duty of the Child Marriage Prevention Officer :

1. to prevent marriages being performed in contravention of the provisions of this Act by taking such action under this Act as he deems fit;

2. to collect evidence for the effective prosecution of persons contravening provisions of this Act' and

3. to discharge such other functions as may be assigned to him/her by the State Government.

iii) The State Government may, by notification in the official Gazette, invest the Child Marriage Prevention Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prevention Officer shall exercise his/her powers subject to such limitation and conditions as may be specified in the notification.

Section 13 -A : Officer appointed under the Act to be public servant - The Child Marriage Prevention Officer appointed under Section 13 shall be deemed to be public servant within the meaning of Section 21 of the Indian Penal Code (XLV of 1860).

Section 13 - B : Protection of action taken in good faith - No suit, prosecution or other legal proceedings shall be against the Child Marriage Prevention Officer appointed under this Act in respect of anything in good faith done or intended to be done in pursuance of this Act or of any rules or orders made hereunder.

Section 14 : Power to make rules - The State Government may, by notification in the official Gazette, make rules, for the purposes of carrying out the provisions of this Act and a Panchayat level Officer may be appointed as Child Marriage Prevention Officer.

Amendment of Section 361: a) for the opening portion, the following shall be substituted viz - ' Whoever takes or entices any minor under eighteen years of age or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person '. b) the Explanation shall be renumbered as Explanation I and after the Explanation as to renumbered, the following Explanation shall be inserted viz The word 'consent' in the section shall not include consent obtained by force, deceitful means or payment of money or other consideration or which is otherwise against the interest of the minor or person of unsound mind. c) the Exception shall be omitted.

Insertion of a new Section 373 A after section 373 : The following section shall be inserted viz 373-A - Selling or buying of minors other case. Whoever, in a case not under section 372 or 373 - a) sells or otherwise disposes off for consideration any person under the eighteen years; or b) buys or otherwise obtains for consideration the possession of any such person; shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

Justification :

Section 3 : Punishment for male adult below twenty one years of age marrying a child - To make the punishment stringent so that Act may become an effective deterrent.

Section 4 : Punishment for male adult above twenty years of age marrying a child - To make the punishment stringent so that Act may become an effective deterrent.

Section 5 : Punishment for solemnizing a child marriage - To make the punishment stringent so that Act may become an effective deterrent.

Section 6 : Punishment for parent or guardian concerned in a child marriage and those who knowingly attended/participated in a child marriage - To negate the approval of child marriage by the society. Participation by society, the parents or guardian may think that the society has given its approval.

Section 6A : Marriage of a Minor to be void in certain circumstances - To provide that when a minor is taken out of the keeping of the lawful guardian or induced to go from any place or sold and subsequently made to go through a form of marriage such marriage shall be void. Section 13: To make the implementation and provisions of the Act more stringent and deterrent. Use of the world 'shall' would make it mandatory for the State Government to appoint such officer.

Amendment of Section 361 : To remove the differentiation of age for male and female child; to provide for definition of 'Consent' (which shall not include consent obtained by force, deceitful means or payment of money or other consideration or which is otherwise against the interest of the minor or person of unsound mind) and omit the Exception which, in the opinion of the Commission does not serve any purpose.

Section 362 A : To make the offence of abduction with an illegal intent punishable.

Section 373 : Insertion of a new section 373 A in the Code of the effect that selling or otherwise disposing of a minor for consideration shall be punishable offence.

 

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