Kerala High Court: In a suo motu petition concerning the practice of child marriage prevalent among the members of the tribal communities in Wayanad District, the division bench of Nitin Jamdar*, C.J and S. Manu, J. directed the State to implement the action plan by conducting awareness programs against child marriage in all upper primary, high, and higher secondary schools in Wayanad District within three months, with support from the Education and Tribal Departments. These departments are tasked with ensuring that every student attends at least one session per year.
Additionally, similar awareness programs are to be conducted in tribal settlements within three months, with the involvement of the Tribal Department, Scheduled Tribe promoters, and para-legal volunteers. These programs are to be continued annually, utilizing the Gothra Vardhan Scheme to ensure better implementation.
The Court also suggested screening films that address the issue of child marriage at various venues during these awareness programs and circulating posters highlighting the harmful effects of child marriage in tribal settlements and schools.
Background
As per 2011 Census data, almost one-third of the total tribal population of Kerala comprising communities is in Wayanad District. As a customary practice, the members of these communities often marry at an early age. As a result, the penal provisions of the Protection of Children from Sexual Offences Act, 2012 (‘PoCSO Act’) are attracted and many face trial for offences under the Act. On this issue, in 2016, the District Legal Services Authority (‘DLSA’), Wayanad, submitted a report to the Kerala State Legal Services Authority (‘KeLSA’). KeLSA placed the report with a request to register a Public Interest Litigation. The Division Bench, by order dated 1 -08- 2016, admitted the petition and issued notices. In 2021, KeLSA was directed to submit a detailed report on the awareness programs conducted for the tribal community people of Wayanad regarding the provisions of the PoCSO Act vis-a-vis customary marriages. The Authority was also directed to furnish the details of the number of cases registered, pending trial, and the concluded cases. The petition thereafter remained pending from 2021.
Analysis and Decision
The Court noted that the age of consent, both under the Penal Code, 1860, and the PoCSO Act, 2012, is eighteen. In the present case, the concern highlighted was the marriages between the members of the tribal community below the age of 18. The Court said that the key law in this regard is the Prohibition of Child Marriage Act, 2006 (‘PCMA’). Under this Act, a Child is, a male under 21 years of age and a female under 18 years of age. Child Marriage is defined as a marriage where at least one party is a Child. The purpose of the PCMA is to eliminate child marriage, a practice that remains widespread in some parts of society. This law aims to protect the health of the children and improve the status of women, particularly addressing the harm faced by child brides.
The Court said that among tribal communities, particularly in regions like Wayanad, the practice of child marriage has been passed down through generations as part of their customary practices. The absence of a legal framework regulating tribal marriages has allowed these customs to persist. However, the long-standing nature of this practice cannot be the sole justification of its continuation. The prevalence of child marriage in the tribal areas, though historically entrenched, needs to be addressed to protect the rights and well-being of the children.
The Court opined that KeLSA can along with the Non-Governmental Organizations and public-spirited individuals can conduct awareness programs to educate communities about the harms of child marriage and the rights of children under Articles 21 and 21-A of the Constitution of India.
The Court emphasized that the programs undertaken by the KeLSA should target families, educators, community leaders, and children to raise awareness about the detrimental effects of child marriage on education, health, and personal freedom. The Court suggested that legal awareness camps, school workshops, and similar initiatives can promote education and skill development as viable alternatives to child marriages. Furthermore, the Court recommended that KeLSA collaborate with child protection agencies, police authorities, and educational institutions to ensure that residents are informed about the legal provisions surrounding child marriage and the procedures for reporting violations.
Therefore, the Court emphasised that “while changes in law are important, community-based awareness and support programs are crucial”.
While noting that an action plan against child marriage has been prepared, the Court directed KeLSA to co-ordinate with the Government agencies, Non-Governmental Organizations, and individuals committed to address the issue.
The Court further mentioned about the Gothra Vardhan Scheme is a scheme implemented by KeLSA under the NALSA (Protection and Enforcement of Tribal Rights) Scheme, 2015 and NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015, which focuses on the empowerment and upliftment of tribal communities in Kerala by addressing critical issues such as education, poverty alleviation, healthcare, and legal awareness.
The Court directed the Secretary of the Kerala State Legal Services Authority (KeLSA) to conduct a review every three months to assess the progress of the steps taken under the sensitization program. This review will help identify any obstacles in the implementation process and propose corrective measures. Additionally, the Court granted KeLSA the liberty to approach the Court for further directions, if necessary, to strengthen the implementation of these efforts and ensure their effectiveness.
The Court directed that the action plan be executed with the involvement of the Education, Tribal, Social Justice, Women & Child Development Departments, the District Child Protection Unit, Panchayats, Non-Governmental Organizations, public-spirited individuals, and para-legal volunteers. KeLSA was asked to collaborate with these stakeholders to enhance sensitization efforts and promote social change.
The Court also instructed that awareness sessions be conducted for the officers of the Tribal and Education Departments to prevent school dropouts and curb child marriage. Additionally, the District Legal Services Authority is tasked with training the District Child Protection Unit and tribal promoters on the Magistrate’s power to issue injunctions against child marriage and providing guidance on seeking legal recourse.
The Court mandated that all statutory authorities assist the KeLSA in effectively implementing the sensitization program. KeLSA was directed to supervise and monitor the implementation of the plan, ensuring timely awareness campaigns, data collection, and interventions. The Court further directed that every six months, or as directed by the Executive Chairman, the Member Secretary will submit a report on the activities undertaken to the Executive Chairman of KeLSA.
[Suo motu communication proceedings received initiated from on the member secretary, KELSA regarding conflict of customs of tribal members of Wayanad with the provisions of POCSO Act v State of Kerala , WP(C) NO. 25285 OF 2016, decided on 03-03-2025]
*Judgment Authored by: Justice Nitin Jamdar
Advocates who appeared in this case :
For Respondent: SRI.P.Narayanan, ADDL. PUBLIC PROSECUTOR, BY GOVT. PLEADER SMT. LATHA THANKAPPAN, R9 BY SENIOR ADV. SRI. SANTHOSH MATHEW, REP: BY ADV. SRI. MATHEW NAVEEN THOMAS, BY SENIOR ADV. SRI. P. VIJAYABHANU, AMICUS CURIAE BY ADVS. SMT. SHAMEENA SALAHUDHEEN BY ADV. SRI. INDU SUSAN JACOB
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