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An Act to restrain the solemnization of child marriages. WHERBAS it is expedient to restrain the solemnization of child marriages; it is hereby enacted as follows:
1.	Short title, extent and commencement—(1) This Act may be called the .Child-Marriage Restraint Act, 1929.
	(2) (3)	It extends to the whole of Bangladesh (2) and applies to all citizens of Bangladesh wherever they may be. It shall come into-'Tforce on the 1st day of April, 1930.
2.	Definitions— in this Act (3), unless there is anything repugnant in the subject or context,—
	a) b) c) d) e) f) g)	"Child" means a person who, if a male, is under twenty one years of age, and if a female, is under eighteen years of age (4); b) "child marriage" means a marriage to which either of the contracting parties is a child; "contracting party" to a .marriage means either of the parties whose marriage is or is about to be thereby solemnized; "minor" means a person who, if a male, is under twenty one years of age, and if a female, is under eighteen years of age (5); "City Corporation" means the City Corporation constituted under .the Chittagong City Corporation Ordinance, 1982 (XXXV of 1982), or the Dhaka City Corporation Ordinance, 1983 (XL of 1983), or the Khulna City Corporation Ordinance, 1984 (LXXII of 1984), the Rajshahi City Corporation Ordinance, 1987 (XXXVIII of 1987) within whose jurisdiction a child marriage is or is about to be solemnized; "Paurashava" means the Paurashava constituted under the Paurashava Ordinance, 1977 (XXVI of 1977), within whose jurisdiction a child marriage is or is about to be solemnized; and "Union Parishad" means the Union Parishad constituted under the Local Government (Union Parishads) Odinance, 1983 (LI of 1983) within whose jurisdiction a child marriage is or is about to be solemnized (6).
COMMENTS: This Act aims at the restraint of performance of child marriages. The question of validity of marriage is beyond the scope of this Act (7). Husband's obtaining the possession of a wife who is a child is against the policy of this Act, his illegal possession of her may be recovered through recourse to court and not by use of force (8) . Accused charged as citizens of a certain country, they are to rebut the presumption that they are not so (9). Certificate of birth of a person is conclusive evidence of his age so long as it is not disproved by evidence of the party denying its correctness (10).
3. 4. 5.	(Omitted)........................... (11). Punishment for male adult above twenty one years of age or female adult above eighteen years of age marrying a child— Whoever, being a male above twenty one years of age or being a female above eighteen years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand Taka or with both (12). Punishment for solemnizing a child marriage— Whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which extend to one month, or with fine which may extend to one thousand Taka or with both, unless he proves that he had reason to believe that the marriage was not a child marriage.
COMMENTS: — Scope: But for the cognizance-obstacle in the section 9, this law, which has been proved to be useless during the last three and a half decades, could be really beneficial. Marrying a girl who has attained puberty but not eighteen years is in violation of the child marriage Restraint Act. The marriage is not invalid, though the husband or persons solemnizing the marriage may be held criminally liable (13). Section 5 should not be construed so broadly as to include the bridegroom and the parent or guardian of a minor. It applies to persons other than the contracting parties to the marriage (14). Foreign nationals— a case of complaint under sections. 4. 5 and 6, it was held the presumption was that the accused were subjects of a certain country, as the place of birth was within their special knowledge, it was for them to rebut the presumption (15). This section is a penal statute and is applicable to all crimes committed under it. The fact that the accused are foreigners makes no difference even ij such an act is not an offence in such foreign place (16). Offence committed when marriage is complete—The marriage being complete before the consummation, a person may be convicted under this Act though consummation has not taken place (17). Section 5 applies only to solemnization of marriage by others than parents and hence section 6 alone applies to parents who participate in child marriage (18). Section 5 contemplates that the person who solemnizes a marriage must make some reasonable enquiry as to the ages and satisfy himself that neither of the participants is a child (19). Age Certificate-Where the person conducting the marriage of a minor has acted upon the certificate about the age from a person of qualifications lower than that of civil surgeon, it cannot be said that the person has acted in good faith (20). In the case of complaint under sections 5 and 6 it is essential that the trying Magistrate should find definitely that either or both of the contracting parties to the marriage were infants, that is, the bridegroom was under the age of 21 or that the bride was under 18 years (21). Perform, conduct and directs, meaning of—The words 'perform', conduct or direct mean completing union and indicate solemnization of marriage. A woman attends child marriage as guest, escorting bride to marriage spot and singing customary chorus, cannot be said to perform, conduct or direct the marriage (22). Negotiation, preparation, or any other preliminary acts do not come within the mischief of section (23). Merely applying for permission for conducting festivities on the occasion of marriage does not amount to 'performing' conducting or directing a child marriage" and clearly is no offence under section 5 (24). Merely advancing money to enable infant to marry in violation of the Act is not by itself punishable either under section 5 or section 6 (26). Sentence—Sentence upon the person who solemnizes a child marriage should be deterrent (26). The person solemnizing the marriage acted on a certificate of age from a doctor of the rank lower than that of a civil surgeon, may be taken into consideration in fixing the punishment, although that is insufficient to excuse him entirely from liability (27). The fact that the accused are foreigners and that the act which is an offence under this Act, is not an offence in the foreign country, can be considered in the mitigation of punishment (28). A case under section 5 of the Child Marriage Restraint Act can be tried summarily (29). Sections 5 and 6 require that it must prima facie be established that the marriage had duly been performed in accordance with the essential religious rites applicable to the form of marriage gone through by the parties and the said marriage must be a valid one according to law applicable to parties (30).
6.	Punishment for parent or guardian concerned in a child marriage—(1) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand taka, or with both: Provided that no woman shall be punishable with imprisonment.
	(2)	For the purposes of this section, it shall be presumed, unless and until the contrary is proved that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnized.
COMMENTS: — Section 6 will come into play only where a child marriage has been performed and not before (31). Section 6 applies to parents who promote child marriage or permit it or negligently fail to prevent it (32). Section 6 has reference only to promotion of prohibited marriage referred to in sections, 4 and 5 (33). When the marriage is not penal, under the preceding sections permitting such a marriage is not punishable (34). The parent or guardian will be liable for the marriage of the minor even if the minor child has not directly entered into the agreement for the marriage and the agreement and arrangement had been made by some other person (35). Expression "when a minor contracts a child marriage" in section 6 is wide enough to cover a case of marriage to which both parties are minors as well as to one to which one party is a minor (36). Parents of bridegroom cannot be convicted under the section merely because the bride was under 14 years of age (37). When the father is alive and is in charge of minor daughter, the grandfather cannot be convicted for her marriage (38). The mother of a minor bridegroom not in actual charge of the minor and not able to prevent the marriage commits no offence by mere participation (39). An intention to give a child in marriage in contravention of this Act, is an unlawful purpose, within the meaning of section 361 of the Penal Code (40). This Act does not mention the offence of abetting but under the Penal Code there may be a prosecution for the abetment of an offence under this Act. A person may be convicted of abetting an accused who is not the father of a minor who is married, so long as the other party to the marriage is a minor (41). A report by Magistrate conducting local-investigation, recommending prosecution of complaint also under s.6, constitutes a complaint under section, 4(1) (h) of Criminal Procedure Code, 1898 (42). A case under the section can be tried summarily (43). The Prosecution to succeed in, persuading the Court to issue summons against accused persons, who according to the prosecution had committed an offence punishable under sections 5 and 6, must prima facie establish that marriage had duly been performed in accordance with the essential religious rites applicable to the form of marriage gone through by the parties and the said marriage must be valid one according to law applicable to parties (44). The lending of money to a guardian for the marriage of her minor child is for the purpose not only prohibited by law but is made an offence under sections 5 and 6 of child Marriage Restraint Act and hence the purpose of borrowing is unlauful and against the public policy (45). A creditr who lends money without being aware of the purpose for which the debt is contracted is not affected by the illegality 1(46). Minor's estate in the hands of a receiver, marriage in contravention of the Act is performed at a place where it is not prohibited. Court cannot sanction the expenditure for the marriage of the minor (47).
7.	Imprisonment not to be awarded for offences under section 3.— Notwithstanding anything contained in section 25 of the General Clauses Act, 1897, or section 64 of Bangladesh Penal Code, a Court sentencing an offender under section 3 shall not be competent to direct that in default of payment of the fine imposed, he shall undergo any terms of imprisonment.
COMMENTS: —The Present section 7 wherein punishment for offences under section 3, has been rendered nugatory because of the deleting of the section 3. (48).
8.	Jurisdiction under this Act.—Notwithstanding anything contained in section 190 of the Code of Criminal Procedure, 1898, no court other than that of a magistrate of the first class shall take cognizance of, or try, any offence under this Act.
COMMENTS:The words "Magistrate of the First Class " as inserted in section 8 by the Amending Act of 1938, still continues to be effective (49). Additional District Magistrate with powers of the District Magistrate is empowered to try a case under the Act (50). In the section 8 itself there in an express prohibition that offences under the Act cannot be taken cognizance of nor tried by any court other than the courts referred to therein. This being a special Act, Sessions court will have no jurisdiction to try the offence under the present Act (51). The place of solemnization of marriage fixes up the place of trial (52). The fact that the offence is triable only by the Magistrate does not bar a summary trial (53).
9.	Mode of taking cognizance of offences.—No Court shall take cognizance of any offence under this Act except on a complaint made by the Union parishad, or if there is no Union Parishad or Paurashava or City Corporation (54) in the area, by such authority as the Government may in this behalf prescribe and such cognizance shall in no case be taken after the expiry of one year from the date on which the offence is alleged to have been committed.
COMMENTS: Deprecating obstacles—In the present section, there was already a limitation of one year within which time a complaint under the Act was to be filed. By the Muslim Family Laws Ordinance, 1961, a new restriction has been imposed upon the present section whereby an aggrieved person or a citizen cannot come directly before the Magistrate with his complaint alleging a child marriage. The complaint has to be filed before the Magistrate by the concerned Union Parishad. Paurashava or the City Corporation, as the case may be or by such authority as the Government may prescribe (55): Middle-interest barrier—If the beneficiaries of a child marriage can manage the concerned authorities of the Union Parishad, Paurashava or City Corporation, as the case may be, by undue influence, which in most cases, are actually done, the aggrieved person has no remedy at all. This restriction has rendered the whole Act nugatory as the Magistrate has been deprieved of the power to enquire into and try even a genuine case of child marriage directly upon complaint, filed by an aggrieved person or anybody on his behalf. Abuse of the statute—Thousands of child marriages are still being performed, conducted and directed by falsely showing in the kabinnama the age of the parties above the prohibitory limit. In consequence of the said amendment restricting the initiation of the complaint before the Magistrate by only same qualified authorities mentioned in the present section. That is why hardly any case of complaint against any offence regarding child marriage has came up for trial after the Family Courts Ordinance, 1961 came into effect. Offences are being trusted up— Due to the calculated insertion of the said provision in the section 9 of the Act by the framers of the Basic Democracy, empowering the members of the local government to intervene and hush up the cases of child marriages in all tiers, the genuine cases of illegal child marriages cannot be looked into and tried by any Magistrate. By a recent amendment in 1984, the age limit of a child has been extended and punishment of the offenders has also been enhanced (56). But these amendments appear to be wrapping up a dead child with glazed apparels. Further amendments necessary—Thus the law makers in 1984 have merely amended an ineffective law to wage war against the birth-boomne of a poverty stricken country. The innovators of the black amendment of 1961 have long been ousted, but their misdeeds are still staring at the face of the people with all their evil effects calling for further amendments of the statute. Limitation Act—However, section 14 of the Limitation Act will not be applicable to the present section to save the limitation in the case of a complaint filed beyond the statutory period of one year on the ground that a previous such application was filed within lime (57)
1O.	Preliminary inquiries into offences under this Act— The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under section 203 of Code of Criminal Procedure, 1898, either itself make an inquiry under section 202 of that Code, or direct a Magistrate 6f the First Class" subordinate to it to make such inquiry.
COMMENTS: Objects of the section—This section comes into play only when the cognizance is taken (58). Preliminary enquiry is absolutely necessary under the Act (59), without which trial would be vitiated, and is not curable by section 537 of the Cr. P.C. (60). The preliminary enquiry is intended to inquire into whether there is a prima facie case or not (61). It is proper in revision to send a case back for correction of illegality such as omission to hold preliminary enquiry, provided under section 10 before trial and not afterwards (62). Dismissal without preliminary enquiry illegal—An order of dismissal of a complaint under the Act without holding a preliminary enquiry under section 202 of Criminal Procedure Code, is illegal and the dismissal must be set aside (63). The power is vested in the Magistrate to himself enquire into the offence or transfer to other Magistrate for prelieminary enquiry (64).
11. 12.	........................ (65). Power to issue injunction prohibiting marriage in contravention of this Act—(1) Notwithstanding anything to the contrary contained in this Act, the Court may, if satisfied from information laid before it through a complaint or otherwise that a child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons mentioned in sections 4, 5, and 6 of this Act prohibiting such marriage.
	(2) (3) (4) (5)	No injunction under sub-section (1) shall be issued against any person unless the court has previously given notice to such person, and has afforded him an opportunity to show cause against the issue of the injunction. The Court may either on its own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1). Where such an application is received, the Court shall afford the applicant an early opportunity of appearing before it either in person or by pleader; and if the Court rejects the application wholly or in part, it shall record in writing its reasons for so doing. Whoever knowing that an injunction has been issued against him under sub-section (1) of this section, disobeys such injunction shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand Taka, or with both;
	Provided that no woman shall be punishable with imprisonment.
COMMENTS: — Section 12 is a self- contained provision and Us main \ object is to prevent child marriages (66) . In a proceeding under section 12 of the Child Marriage Restraint Act, the Magistrate cannot compel the person complained against to put in his personal appearance, as he is allowed to appear either personally or by a pleader (67). Where a father gives his minor daughter in marriage after an injunction of the court against him was passed, he is entitled to an opportunity to show cause that he had no notice of the injunction before he is punished (68). Injunction under this section cannot be given for a longer time such as six to eight years (69).
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23) (24) (25) (26) (27) (28) (29) (30) (31) (32) (33) (34) (35) (36) (37) (38) (39) (40) (41) (42) (43) (44) (45) (46) (47) (48) (49) (50) (51) (52) (53) (54) (55) (56) (57) (58) (59) (60) (61) (62) (63) (64) (65) (66) (67) (68) (69)	For statements of objects and reasons for the present Act Vide Gazette of India Part. V. p - 28. Substituted by Act VI11 of 1973 as amended by Act LIII of 1974 for Pakistan w.e.f. 26. 3. 1971. The sections in so far it applies to the Muslims of Bangladesh, was amended by Muslim Family Laws Ordinance, 1961 w.e.f 15.6. 1961. Amended by Ordinance No. 38 of 1984 w.e.f. 4. 6. 1984. Amended by Ordinance No. 38 of 1984 w.e.f. 4. 6. 1984. Sub-sections (e), (f) and (g) added by Ordinance No. 14 of 1985 w.e.f 13. 3. 1985 by amending section 12 of The Muslim Family Laws Ordinance, 1961. AIR 1936 All 11; 36 Cri. L J 1483; 58 All 402; AIR 1939 All 340; AIR 1936 All 852; 38 Cr. L J 301; AIR 1962 Mad 400; 75 Mad L. W. 161. AIR 1935 All 916; 37 Cri. L. J 35. AIR 1940 Nag 245; 41 Cri. L. J. 645. A. I. R. 1935 (Pat) 474: 37 Cr. L. J. 227. Omitted by Ordinance No. 38 of 1984 w.e.f. 4. 6. 1984. Earlier Section 4 has been substituted by the Ordinance No. 38 of 1984. w.e.f 4. 6. 1984. Mstt. Bakshi-vs- Bashir Ahmed and another, 22 DLR SC 289; PLD 1962 Kar 442. Ganapatram Devaji, (1923) 34 Cr. L. J. 311; Munshi Ram [1936] ALJ 1166; 36 Cr. L. J. 1483. A. I. R. 1940 Nag 245; 41 Crl. L. J. 645. (1936) 37 CrL. L.J. 757. A. I. R. 1936 All 11: 36 Crl. L. J. 1483. A.I.R 1937 (Mad) 490: 38 Crl. L. J. 594: A. I. R. 1932 Nag 174; 28 Nag.L. R. 302; 34 Crl L. J. 311: I. L. R. (1962) Cut 825; 29 Cut L. T. 71. [But See A. I. R. 1936 All 11: 36 Crl. L. J. 1483.) A. I. R. 1937 Mad 490; 38 Crl. L. J. 594. A. I. R. 1934 All 331; 35 Cri. L. J. 677. A. I. R. 1939 Cal 288; 40 Crl. L. J. 605. A. I. R. 1940 Bom 363; 42 Crl. L. J. 62: 1965 (2) Crl. L.J. 167 (Mad). A. 1. R. 1938 Nag 235; 39 Crl. L. J. 651. A. I. R. 1936 Oudh 311: 37 Crl. L. J. 616. I. L. R. (1937) 2 Cal 764. A. I. R. 1933 Pat 471; 33 Cri. L. J. 20. A. I. R. 1934 All 331; 35 Crl. L. J. 677. (1936) 37 Crl. L.J. 757 (Cal). A. I. R. 1956 Andh 51; 1956 Crl. L. J. 196. 1971 Crl. L. J. 1812; (1971) 2 Mys. L. J. 323. A.I. R. 1957 Raj 359; 1957 Crl. L. J. 1317. A. I. R. 1937 (Mad) 490; 38 Crl. L. J. 594. A. I. R. 1938 Mad 235; 39 Crl. L. J. 651. A. I. R. 1935 Bom 437; 37 Crl. L. J. 211. A. I. R. 1945 All 306; 47 Crl. L. J. 43. A. I. R. 1932 Nag 174; 34 Crl. L. J. 311; 28 Nag L. R. 302. A. I. R. 1937 Mad 490; 38 Crl. L. J. 594; I. L. R. (1962) Cut 825; 29 Cut L. T. 71. A. I. R. 1945 All 306; 47 Crl. L. J. 43. A. I. R. 1937 Mad 490; 38 Crl. L. J. 594. A. I. R. 1933 Rang 98; 34 Crl. L.J. 696. A. I. R. 1935 Pat 474; 37 Crl. L.J. 227. A. I. R. 1933 Pat 87; 34 Crl. L. J. 237. A. I. R. 1956 Andhra 51; 1956 Crl. L.J. 196. 1971 Crl. L. J. 1812; (1971) 2 Mys. L. J. 323. A. I. R. 1952 Mad 579; A. I. R. 1956 (Bom) 250(251); A. I. R. 1949 East Pun] 354: (1967) 69 Pun. L. R. 293; A. I. R. 1941 Cal 244. [But see A. I. R. 1972 All 357]. A. I. R. 1958 Andh Pra 145 (146) (DB); A. I. R. 1967 Andh Pra 83 (85, 86); AIR 1937 Cal 257; ILR 63 Cal 1153. Section 3 of the Act, the basis of the present section 7, has been omitted by Ordinance No. 38 of 1984 w.e.f 4. 6. 1984. A. I. R. 1947 (Nag) 79; 47 Crl. L. J. 794. A. I. R. 1937 Mad 637; 38 Crl. L. J. 664. A. I. R. 1971 Guj 1 (6); 1971 Crl. L. J. 41; 12 Guj. L. R. 105. AIR 1934 All 829; 35 Cr. L. J. 1175. AIR 1934 All 331;35 Cr. L. J. 677; AIR 1956 Andhra 51; 1956 Crl. L. J. 196. Substituted by the Ordinance No. 14 of 1985 w.e.f. 13. 3. 1985. Amended by the section 12 (4) of the Muslim Family Laws Ordinance, 1961. By the Ordinance No. 38 of 1984 w.e.f. 4.6.1984. AIR 1939 Mad 512; 40 Cr .L J. 816. A. I. R. 1957 Raj 359; 1957 Crl. L. J. 1317; A. I. R. 1939 Mad 530; 40 Crl. L. J, 818; A. I. R. 1934 Lah 155; 35 Crl. L. J. 1436; A. I. R. 1931 Lah 56; 32 Crl. L. J. 616. A. I. R. 1939 Mad 294; 40 Crl L. J. 51.4. A. I. R. 1940 Sind 213; 42 Crl. L. J. 83; (1953) Sau L R 252; (1937) 20 Nag. L. J. 115; 1. L. R (1962) Cut 825; 2& Cut. L. T. 71-. A. I. R. 1939 Pat 525; 40 Crl. L. J. 887; A. I. R. 1940 Nag 375; 42 Crl. L. J. 37; I. L. R. (1962) Cut 825; 29 Cut L. T 71 [ Contra (1966) 7 Guj L. R. 936. A. I. R. 1940 Nag 375.] A. I. R. 1954 Mad 889; 1954 Crl. L.J. 1344. 1971 Cr. L. J. 1350; 1971 Mad L. W. (Crl) 94. The section giving the Court power to take security from the complainant, has been omitted by the section 12 (5) of the Muslim Family Laws Ordinance, 1961. A. I. R. 1957 Raj 359; 1957 Crl. L. J. 1317 A. I. R. 1957 Raj 359; 1957 Crl. L. J. 1317 A. I. R. 1932 Cal 719 1965(2) Crl. L. J. 836; 1964 Raj L. W; 616.

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