2025 PLD 1
This constitutional petition challenges the definition of "child" in the Child Marriage Restraint Act, 1929, as amended by the Punjab Child Marriage Restraint (Amendment) Act, 2015, specifically Section 2(a) and (b), arguing that it violates the equality clause of the Constitution.
Facts
The petitioner argues that the definition of "child" in the 1929 Act, which sets different ages for males (under 18) and females (under 16) for the purpose of marriage restraint, is discriminatory and unconstitutional.
Procedural History
The petitioner filed a writ petition challenging the validity of Section 2(a) and (b) of the 1929 Act.
Court Decision
The High Court declared the words "if a male ….and if a female is under sixteen years of age" in Section 2(a) of the 1929 Act unconstitutional, holding them to be without lawful authority and of no legal effect. The Court directed the Government of Punjab to issue a revised version of the Act within fifteen days.
Legal Principles and Judicial AnalysisSection 2(a) and (b), Child Marriage Restraint Act, 1929: The Court reproduced the challenged sections of the Act, which define "child" differently based on gender. "2(a) 'child' means a person who, if a male, is under eighteen years of age, and if a female, is under sixteen years of age; (b) 'child marriage' means a marriage to which either of the contracting parties is a child."Purpose of the 1929 Act: The Court acknowledged the Act's purpose to "restrain the solemnization of child marriage." It emphasized that the core issue is the power of the government to prescribe a minimum age for marriage, which it affirmed. "The right question to ask is whether notwithstanding the appearance of signs of puberty differently in males and females, the Government is empowered to prescribe a minimum age for marriage or not? For, that is what the 1929 Act seeks to achieve."Article 35, Constitution: The Court cited Article 35 of the Constitution, which states, "35. The State shall protect the marriage, the family, the mother and the child." The Court stated that the 1929 Act, as amended, is a step towards fulfilling this duty, particularly concerning the protection of the mother and child. "This principle of policy obliges the State to protect marriage, the family, the mother and the child. The 1929 Act (and its amendments) is a step towards fulfilment of duty by the State under Article 35."Article 25, Constitution: The Court focused on Article 25 of the Constitution, which guarantees equality before the law and prohibits discrimination based on sex. "25. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children." The Court found that the different ages prescribed in the definition of "child" do not meet the requirements of Article 25, as the distinction is not based on an intelligible criteria. "The definition of 'child' in the 1929 Act while making a distinction on the basis of age, is not based on an intelligible criteria having nexus with the object of the law." The Court deemed the distinction discriminatory. "I have no doubt in my mind that the definition of child, in its present form, in 1929 Act is discriminatory."Striking Down the Discriminatory Provision: The Court concluded that the gender-based age distinction in Section 2(a) of the 1929 Act is unconstitutional. "In sum, the words in section 2(a) viz. 'if a male ….and if a female is under sixteen years of age' being unconstitutional are held to be without lawful authority and of no legal effect. They are struck down."