Rajasthan guv stays child marriage registration

JAIPUR: Rajasthan governor Kalraj Mishra on Monday put on hold for further legal examination a bill to amend the law regarding mandatory registration of all marriages, after objections were raised by the opposition Bharatiya Janata Party (BJP), non-governmental organisations (NGOs), and social activists.

The Rajasthan assembly last week passed a bill to amend the Rajasthan Compulsory Registration of Marriages Act, 2009, providing a mechanism for the registration of all marriages in the state, irrespective of age of the bride and groom. The contentious amendment, which is yet to be notified, states that “if the bride is under 18 and the groom is under 21”, the parents or guardians must submit a memorandum for registration of marriage within 30 days from the date of marriage.

Social activists and civil society members argued the new provision was retrograde because it effectively legalised child marriage.

Though the practice has been a major social ill in Rajasthan for decades, official data does not reflect this — a problem that activists allege is more to do with recording of the data than the ground reality.

According to the state government, only four child marriages were reported in Rajasthan in 2016, 10 in 2017, and 17 in 2018. There is no data on child marriages available for 2019 and 2020.

The National Family Health Survey (NFHS), however, showed that the share of national child marriages in total marriages in the state per year came down from 65% in 2006 to 35% in 2016, suggesting that it was still a matter of grave concern.

While the BJP staged a walkout in the assembly when the bill was passed in the assembly on September 17, the National Commission for Protection of Child Rights (NCPCR) in the last week of September asked the state government to review the new law because its enactment, it said, would have a “serious impact on the physical, psychological, and social state” of minors. A public interest litigation (PIL) has also been filed by Jodhpur-based Saarthi Trust in the Rajasthan high court’s Jaipur bench challenging the constitutional validity of the bill.

A senior official familiar with the developments said on condition of anonymity that looking at the objections, and concerns raised by several sections and the Opposition, the governor has decided to get the bill examined more minutely.

The controversy

The legal debate centres around a 2006 Supreme Court judgment in “Seema vs Ashwani Kumar”, which directed states and the centre to notify procedures for registration of all marriages.

“If the record of marriage is kept, to a large extent, the dispute concerning solemnisation of marriages between two persons is avoided. As rightly contended by the National Commission, in most cases non-registration of marriages affects the women to a great measure. If the marriage is registered it also provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage having taken place. Though, the registration itself cannot be a proof of valid marriage per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered, and the age of parties to the marriage. That being so, it would be in the interest of the society if marriages are made compulsorily registrable.”

NGOs have argued that the apex court order made no mention of registration of child marriages, and that the state government should have taken the court’s opinion before bringing in the new bill. “It seems that government has wrongly interpreted a Supreme Court order, which does not state that child marriages should be registered. If the government has doubts on how the order should be interpreted, they should approach the court for clarification,” said Kriti Bhati of Saarthi, an NGO working against child marriages in Rajasthan.

Bhati, who has prevented over a thousand child marriages in Rajasthan and annulled 43, said the court order said that public opinion should be taken before amending the law.

“The registration certificate will also make annulment of child marriages difficult as the court will ask for a certificate. This, the parents will not be have, as getting one for a minor will bring legal action on them,” Bhati said.

Kavita Srivastav, general secretary of the People’s Union for Civil Liberties (PUCL), said allowing marriage registrations for people below legal age “directly approves” child marriages, and reiterated the need for pre-legislative consultation.

“As per the amendment, every marriage is legal. The marriages annulled so far happened as the girls raised their voice but now this right would also end as the parents will not get the marriage registered fearing legal action,” said Srivastav.

“The government should immediately withdraw the changes or else a massive movement will be started against it.”

What the govt says

The government said in a statement on September 18 that registration of marriage does not in any way give validity to the union, and nor is it a hindrance in the court to declare a child marriage void.

“All marriages are being registered in the state since 2006 as per the order of the Supreme Court. This amendment bill 2021 has also been passed to facilitate the process of registration of all marriages in compliance with the order of the Supreme Court,” the statement said.

The government stressed the new provision would enable registration of marriages of unregistered deceased couples, so that their children and family members do not face legal hurdles. With the registration of marriage, children will be able to get government jobs, succession, compassionate appointments, domicile certificates, benefits such as a pension, and other legal rights, it added.

The government also refuted the charge that the new provision is in contradiction to the Prohibition of Child Marriage Act, 2006.

“The new bill does not in any way dilute the stringent provisions of the Prohibition of Child Marriage Act, 2006. The registration of child marriage will not infringe the right to void the marriage given to the bride and groom in the Act,” the statement added.

“In Rajasthan, 523 child marriages have been stopped in the state in the year 2019-20 and 160 in 2020-21,” it said.

21-year-old Roopa Choudhary, who resisted marriage when she was 15, backed the new amendment as a means to prevent child marriages.

“The new amendment is welcome.Compulsory registration will prevent child marriages and legal action can be taken against those who are getting it done,” she said.

Now married, and working as a nurse in Jodhpur, Choudhary said: “If parents getting a minor married approach the authorities for a certificate, they will face legal action instantly.”

Srivastav questioned the government upon whose advise they sought before bringing in this law “which would retrograde the issue of child marriages and legalise the illegal”.

BJP MLA and former state minister Vasudev Devnani said the child marriage bill is a violation of child rights.

“The provisions in the bill will encourage child marriages. It is like legalising a crime. Only because they have mandate they cleared the bill but the governor has stopped it for further examination.”