The Kerala High Court has upheld the circulars issued by Local Self Government Authorities of Kerala Government making under-age marriages also compulsorily registerable observing that it would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act.
The bench comprising Chief Justice Hrishikesh Roy and Justice AK Jayasankaran Nambiar were considering writ petitions filed by Punarjani Charitable Trust and several others seeking quashing of circulars issued by the Local Self Government Authorities of Kerala Government which clarified that there is no legal impediment in registering the Muslim marriages, where the male has not attained 21 years and the female has not attained 18 years, on the basis of the certificate of the religious authority, as per Rule 9(3) of the Kerala Registration of Marriage (Common) Rules, 2008.
They contended that the Government of Kerala, by issuing these circulars, has encouraged solemnisation of child marriages, in contravention of the mandate of the Prohibition of Child Marriage Act.
The bench comprising observed that the Prohibition of Child Marriage Act is not intended as a measure to declare all child marriages as void ab initio, except under the circumstances enumerated in Section 12 and 14 of the Act. The bench also referred to Supreme Court judgment in Seema v. Ashwani Kumar, where it was observed that, in most cases non-registration of marriages largely affects the women and if the marriage is registered, it however provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage.
Rejecting the challenge against circulars, the bench observed that these circulars are intended to achieve the objective pointed out by the Supreme Court in Seema v. Ashwani Kumar. It also said that the role of the Marriage Registration Officer occurs only at the stage of solemnization of marriage and he has no role in preventing marriage, between under-aged couples. It observed:
“We are unable to accept the argument advanced by the learned counsel that the circulars would fail the objectives of the Prohibition of Child Marriage Act. As a matter of fact, the registration of even the child marriages, in our perception, would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act.”
The bench observed that the State must take adequate measures to mobilise the Child Marriage Prohibition Officer to effectively carryout the functions, mandated under Section 16 of the Prohibition Act, 2006, to create awareness and sensitise the community on the evils of child marriage. The Prohibition Officer must take pro-active measures to detect proposed child marriage and intervene in such proposed marriages and bring it to the notice of the Judicial Magistrates so that appropriate orders can be passed for the purposes of Sections 13 and 14 of the Prohibition Act, 2006, it said. The bench closed the writ petitions by making this suggestion to the state:
“Over and above these provisions of the Statute, it would also be desirable for the State Government to instruct the Marriage Registration Officers to intimate the Child Marriage Prohibition Officers, the registration of any marriage which might involve a child, as defined under Section 2(a) of the Prohibition Act, 2006, so that, appropriate steps can then be taken by the Child Marriage Prohibition Officer to prosecute the offenders.”