Analysis of Society for Enlightenment v. Union of India: Supreme Court’s 2024 Ruling on Child Betrothal

This article has been written by Mahita Swamy, Law Graduate from BMS College of Law, Bengaluru, Karnataka.

In the Hon’ble Supreme Court of India

Society for Enlightenment and Voluntary Action and Anr. V Union of India & Ors.

Petition – Society for Enlightenment and Voluntary Action and Anr.

V

Respondent – Union of India & Ors

• Citation – 2024 INSC 790
• Date of Judgement – October 18, 2024
• Hon’ble Judges – Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra

Introduction

Child Marriage – a custom claimed to have been followed for centuries in the imbedded culture of our country. But in reality, it has become the very cause of many social evils in our country at this moment in time. On October 18, 2024, the Supreme Court of India delivered a judgement on a PIL case dealing with this very problem of India and has once again stood for the welfare of children by declaring Child Betrothals violative of basic rights of free choice, autonomy and childhood and sought out to the Parliament to outlaw Child Betrothals, as this was being used as a ploy to evade punishment under the Prohibition of Child Marriage Act, 2006.

The case of Society for Enlightenment and Voluntary Action and Anr. v. Union of India and Ors has become a landmark judgement as the Supreme Court has not only addressed issues related to girl children but also the overall development of a child, be it a boy or girl. The Court, with the finding of the loophole that is being used by the perpetrators, has ruled that practice as unlawful, effectively making illegal to do so and has urged the Parliament and the Central Government to make laws for this practice and declare child victims of this practice as “minors in need of care and protection”.

Meaning of Child Betrothal

Betrothal, as a quick search says, is a formal engagement to be married or an engagement, a promise to be married. Child Betrothal is just the same, a promise of marriage of a child, instead of a consenting adult or an adult, in terms of laws.

Global Stance on Child Marriage and Child Betrothal

Article 16 of the Universal Declaration of Human Rights, 1948, recognized the right to have equal rights within a marriage, which cannot be used in limitation due to someone’s race, nationality or religion, while both parties in marriage are entitled to have equal rights to the marriage, during it and at its dissolution and such marriage is entered into with full and free consent of the intending spouses.

Though this article does not directly deal with child marriage or the legal age for marriage, it talks about “full and free consent of the intending spouses”, setting the earliest standard for safeguarding autonomy and protecting individuals from coerced or forced marriages.

Child Marriage was then addressed in Article 16(2) of the Convention on the Elimination of All Forms of Discrimination against Women, 1979, where it was stated that child marriage and child betrothal will have no legal effect and all necessary actions should be taken to specify the minimum age for marriage, for official registration of marriage.

This article led to more focus on matters related to child rights, which in turn led to the adoption of Convention on the Rights of the Child, 1989. The main reason for this convention was for the gap in the protection of children. This convention also defined a ‘child’ as a person below the age of 18, as given in Article 1.

Facts of the Case

Under Article 32 of the Indian Constitution, the NGO by the name of Society for Enlightenment and Voluntary Action filed a petition, a Public Interest Litigation (PIL), the issue for this petition was to bring to light the alarming rate of child marriages in India, even after the implementation of the Prohibition of Child Marriage Act, 2006. The NGO, in their petition, pointed out the failures of the authorities to prevent child marriages and prayed for more stringent implementation mechanisms, awareness generation, posting of more CMPOs (Child Marriage Prohibition Officers), multi-faced support systems for child brides on education, health and compensation issues.

Issues of the Case

1. The main issue of this case was the increase in the number of child marriages across the country even with the Prohibition of Child Marriage Act, 2006, being implemented.
2. The PIL also brought to attention the failure of the laws to protect children from forced marriages, especially after earlier cases like Rukhmabai and Phulmoni Dasi.
3. The PIL also brought to attention the absence of any law prohibiting or preventing child betrothals in the country.

Petitioner’s Arguments

The Petitioner here, that is, the NGO, Society for Enlightenment and Voluntary Action, gave sufficient submissions to prove their point of increasing/alarming rates of child marriages in India, which are as follows: –

1. A Statistical Report, for contextual proof of the matter, the report being National Family Health Survey – 5, 2019-2021 (NFHS – 5) and NFHS – 4, 2015-2016. In the NFHS – 5, 23.3% of girls were married under the age of 18 while 17.7% of boys were married under the age of 21. This percentage in the NFHS – 4 was 26.8% and 20.3% respectively. These figures were also backed by the high rates of adolescent pregnancies in the country.
2. The finding that the CMPOs were overburdened with many responsibilities and would not have either the monetary resources or human resources to do their actual assigned task, with only Haryana and Sikkim reporting official appointments of CMPOs. As such, there is a clear gap in the implementation of the 2006 Act.
3. There was a clear discrepancy between the National Crimes Report Bureau data and the State departments’ information.
4. It was also presented that there was low reporting and conviction rates of child marriage cases throughout India.

Respondent’s Arguments

The Respondents, that is, the Union of India and other related government departments, also gave their submissions to support their claim of action being taken to prevent and get rid of child marriage, which were as follows: –

1. The implementation of programs like “Beti Bachao Beti Padhao” was a step towards preventing child marriage and encourage girl child education.
2. The Union also stated that they had recognized 70 high risk districts across 13 states and they also had “Mahila Shakti Kendra” operational in 640 districts.

Court’s Observations

In this case, the Supreme Court of India observed that child marriages violate the Fundamental Rights under Article 21 of the Indian Constitution, which deals with the right to life and liberty a citizen, and Article 21-A, which deals with the right to education. These are the observations in detail: –

1. Child marriages violate Article 21, which for a child also means the right to self-determination, choice, autonomy, sexuality, health and education.
2. Child marriage also deprives children of their agency, autonomy and their right to fully develop and enjoy childhood. This observation applies to both girl children as well boy children.
3. A child marriage objectifies a child, putting too mature burdens such as pregnancy, earning a living, being with someone other than their own family, etc., on individuals who aren’t physically or mentally ready to understand the importance and impact of a marriage.
4. Under Article 21 itself, child marriage also violates the right of a girl to make her choice with respect to her reproductive body and other choices related to her body.
5. The Court also observed that child marriage leaves lasting or lifelong physical and mental injuries on the individuals, which violate Article 21 of having the right to lead a dignified life.
6. With respect to education, after a girl child is married, it means the end of their path of education and hence is violative of Article 21-A.
7. Finally, the Court also observed and issued guidelines with respect to preventing and protection over penalizing and asked the stakeholders to address the root cause of child marriage through community-driven strategies.

Court’s Guidelines

In the judgement, the Supreme Court of India issued certain guidelines to tackle the problem of child marriage with Legal Enforcement, Judicial Measures, Community Involvement, Awareness Campaigns and Training/Capacity Building. These are different measures that was suggested to the Union and the Parliament to work on, so as to tackle the root cause of child marriage. These are as follows: –

1. State Governments should enforce more appointments of dedicated CMPOs at the district level, with a regular performance reviews and mandatory training. States should also consider integrating Special Juvenile Police Units (SJPU) into this preventive framework. States should also constitute a State Special Child Marriage Prohibition Unit and have social workers with experience in child rights.
2. Magistrates, as of now, are empowered to take suo moto action and issue preventive judgements to halt child marriages and also, at the feasibility of courts, establish special fast-track courts for such cases. Courts are now allowed to give strict disciplinary and legal action for any officer that neglects their duty with respect to such cases.
3. A “Child Marriage Free Village” initiative should be launched, encouraging Panchayats and community leaders to actively prevent child marriages. These authority figures of villages should also be given regular orientation programs and workshops to build their capacity.
4. CMPOs should regularly conduct awareness programs/campaigns in schools, religious institutions and Panchayats. At the same time, there should be a comprehensive education on sexuality and other related issues in a school’s curricula, to inform students about child marriage and its prevention methods. Such education materials on child marriages should also be promptly displayed in schools and public institutions.
5. There should be targeted community awareness campaigns, empowerment programs for girls and helpline awareness initiatives must be implemented.
6. There should be specialized training given to community health workers, law enforcement officers and judicial officers about the prevention of child marriage, teachers and school administers to recognize signs of potential of child marriages, etc.

Judgement

The Supreme Court of India, in this case, declared Child Marriage, in the form of Child Betrothals, as illegal and urged the Parliament to outlaw it, while issuing guidelines for it to work on, so as to prevent and prohibit Child Marriage. It also ordered this judgement to be transmitted to the Secretaries of all concerned Ministries, Government of India, statutory authorities, institutions and organizations under the respective ministries.

Analysis

This case did not only focus on the alarming rate child marriages, but also focused on irradicating this evil norm from its root. This can only be possible with the joint effort of all parties involved and not luck.

It is remarkable of the Supreme Court to recognize that this practice has no one-sided effect. As much as a girl child is impacted with such a practice, a boy of young age is also forced into a relationship that he may not be able to comprehend, which is the cause of many mental/behavioral problems with such children.

In the process of hearing the parties, the Supreme Court was told that there was an amendment bill of the Prohibition of Child Marriage Act, 2006, presented in the Parliament in 2021, which the Court asked the government to reintroduced while keeping the above suggestion in mind.

The Court has also observed that perpetrators use the norm of Child Betrothals, once they discover that Child Marriage is illegal, which is only dealt with the Juvenile Justice (Care and Protection of Children) Act, 2015. As such, the Court asked the Parliament to make this practice illegal for future generations, but also declared it as void and illegal, effectively closing the legal loophole in the legal system. This is a huge win for the judicial system, as they have identified a problem before it could be used more than it already has. We should remember that Child Betrothal, like Child Marriage, is void as per the international laws.

Conclusion

As another day starts, another legal issue has met its end. If not at the root cause, the path to its elimination is shown and whoever is interested should walk down that path. Child Marriage is not a small feat – it is a real social evil that has impacted the lives of thousands, if not more, and will continue to impact, if not acted on right now. This judgement of the Supreme Court of India is win, to a large extent, liberating many from the possibility of experiencing a great deal of mental and physical pain. But this is only the first step. Not the last. The path has been made clear for those who wish to walk on and make an impact, in at least one life.

Reference

• Society for Enlightenment and Voluntary Action and Anr. Vs Union of India & Ors, 2024 INSC 790
• Drishti Judiciary Blog, “Impact of Child Marriage” (October, 2024) < https://www.drishtijudiciary.com/current-affairs/impact-of-child-marriage>