Prohibition of Child Marriage Act (PCMA), 2006 prevails over personal laws: Supreme Court

In Society for Enlightenment and Voluntary Action vs. Union of India and Others (2024), Supreme Court has passed the following directions:-"1. Empowering Magistrates to Take Suo Moto Action and Issue Preventive Injunctions
1.1.All Magistrates vested with authority under Section 13 of the Prohibition of Child Marriage Act, 2006, are directed to take proactive measures, including issuing suo motu injunctions to prevent the solemnization of child marriages; and
1.2.Magistrates are encouraged to particularly focus on "auspicious days" known for mass weddings, when the occurrence of child marriages is notably high. Upon receiving credible information or even upon suspicion, Magistrates should use their judicial powers to halt such marriages and ensure child protection."

The judgment was delivered on October 18, 2024 by a 3-judge bench of 50th chief justice of India, Justices J. B. Pardiwala and Manoj Misra. The 141-page long judgement was authored by Dr Dhananjaya Y. Chandrachud.  

Notably, the Prohibition of Child Marriage (Amending) Bill 2021 was introduced in Parliament on December 21, 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 Prohibition of Child Marriage Act (PCMA), 2006 to expressly state the overriding effect of the statute over various personal laws. The issue, therefore, is pending consideration before Parliament. 

In such a backdrop, it is quite significant that Union of India in its submission before the Supreme Court has stated after the judgment was reserved in the case that "this Court may direct that the PCMA prevails over personal law." The note of the Union states as follows: “9. As a way forward, Ministry of Women & Child Development has following inputs to provide for kind consideration of the Hon’ble Court –i. There are conflicting pronouncements by various High Courts about the precedence of the Prohibition of Child Marriage Act (PCMA), 2006 over the personal laws. Hence, Hon’ble Court may consider issuing directions pronouncing that the PCMA will prevail over the personal laws governing marriage.…” 

The Court observed: "we note that while the PCMA seeks to prohibit child marriages, it does not stipulate on betrothals. Marriages fixed in the minority of a child also have the effect of violating their rights to free choice, autonomy, agency and childhood. It takes away from them their choice of partner and life paths before they mature and form the ability to assert their agency. International law such as CEDAW stipulates against betrothals of minors. Parliament may consider outlawing child betrothals which may be used to evade penalty under the PCMA. While a betrothed child may be protected as a child in need of care and protection under the JJ Act, the practice also requires targeted remedies for its elimination." JJ Act refers to the Juvenile Justice (Care and Protection of Children) Act, 2015. CEDAW refers to Convention on the Elimination of All Forms of Discrimination against Women which was adopted in 1979 and came into force in 1981. India ratified CEDAW on July 9, 1993.

The concluding paragraph of the judgement reads:"A copy of this Judgment will be transmitted to the Secretaries of all concerned Ministries, the Government of India which includes the Ministry of Home Affairs, Ministry of Women and Child Development, Ministry of Panchayati Raj, Ministry of Education, Ministry of Information and Broadcasting, Ministry of Rural Development, statutory authorities, institutions, and organizations under the control of the respective ministries. The Ministry of Women and Child Development is directed to circulate this judgment to the Chief Secretaries/Administrators of all the States and Union Territories, as well as NALSA, and NCPCR for strict compliance with the directions. This shall be done within a period of four weeks from the date of delivery of this judgment."

In compliance with the judgement, Patna High Court's Registrar General has issued a Circular No.7 of 2024 for necessary observance of the aforementioned directions which should be strictly followed. A copy of the circular has been forwarded to the Secretary, Government of India, Ministry of Law and Justice, Department of Justice, Jaisalmer House, 26 Mansingh Road, New Delhi, Director, Bihar Judicial Academy, Patna and Member Secretary, Bihar State Legal Services Authority, Patna. The circular states that All the Principal District and Sessions Judges of Bihar are supposed  to circulate this circular order amongst all the Judicial Officers working in their respective Judgeships for its strict compliance.