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1. Legislative History Of The Child Marriage Restraint Act,1929.

Child marriage existed historically in India, it is believed that child marriage was prevalent in
the ancient as well as medieval times45.

Some Indian scholars question the existence of child marriage in ancient India, but
in most religious texts the father was urged to marry of his daughter at a very young age.
Most religious texts recommend46 ages between 8 to 10 as the ideal age for marriage. Sage
Manu, in his Manusmriti has categorically written47 that if a girl remains unmarried after
reaching the puberty, the father has failed in his duty towards her. Similarly, another sage,
Parasara, said that the parents or guardians of a girl who reaches puberty before marriage will
definitely go to hell. Amongst the Yadavs, Guptas ,Thahare, Kurmis, Mourya it was believed
that if a daughter is married before the start of her menstrual period the blessings that will
accrue will be akin to the donation of 7.800 cows. On the other hand, if the marriage is
solemnized after a daughter’s menstrual period, it will have the same effect as killing 7,800
cows. One thing that must be kept in mind when tracing the religious and cultural roots of
child marriage is that in 400 BC the average life span of a woman was between thirty five and
forty years; if this was a rationale for early marriage at one time, this is no longer an issue.
According to Customary Muslim Law Child Marriages are permitted. A person can enter into
a valid marriage after reaching puberty, that is once he or she attains the age of 15.

Even in the medieval times Child Marriage was prevalent, according to studies48
the predatory feudal lords and the princes who stalked all over India in the medieval age were
a source of constant threat. Hence parents would seek to get over the responsibilities of their
daughters by getting them married off before they reached marriageable age. According to
some scholars the practice of child marriage did not exist in ancient India and started in the
medieval age along with other evil practices like Sati and dowry.

The practice of Child Marriage was prevalent even during the British period.
Two significant cases in the nineteenth century brought the issue of Child Marriage into
limelight. The Rukhmabai case49 in Maharashtra and Phulmonee case50 in Bengal as they are
popularly known raised significant questions about the age and issue of consent in Hindu
marriage. In the case of Phulmonee the girl child aged eleven years died because of a
haemorrhage from a rupture of the vagina caused by her husband who had forcible sexual
intercourse with her, but the court acquitted her husband as the girl was above ten years and
according to the law sexual intercourse with a wife who was above the age of ten was not
rape. This case galvanised public support for the Age of Consent Bill and in many ways
silenced the opposition. Both the cases marked the tension between the Hindu orthodoxy on
one hand that upheld child marriage and perceived any opposition to it as an affront to
tradition and social reformers opposing such religious bigotry on the other hand. For the latter

45
Sagade, Jaya, Child Marriage in India, Oxford University Press, 2005
46
Manu Smriti, The constitution of Vedic Society.
47
Supra 46.
48
Supra 45.
49
Cited in Kosambi, "Gender Reform," p. 271.
50
Supra 49.