The Supreme Court recently agreed to hear a petition filed by the National Commission for Protection of Child Rights (NCPCR) regarding Muslim girls. The petition challenged an order of the Punjab and Haryana High Court which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per the Muslim personal law. The bench said that it was inclined to entertain the writ petitions. It issued notice, pending further orders, and said that the impugned verdict (of the Punjab and Haryana High Court) shall not be relied upon as precedent.
A Division Bench of Chief Justice of India (CJI) DY Chandrachud and Justice PS Narasimha passed the interim order while issuing notice in a special leave petition filed by NCPCR.
The petition said that the judgment was against the Protection of Children from Sexual Offences (POCSO) Act, which prescribes 18 years as the age for sexual consent. The NCPCR also contended that since the POCSO Act, 2012 does not recognise consent for sexual activity by minors, marriages on attaining puberty cannot be allowed.
Solicitor General of India Tushar Mehta, appearing for NCPCR, argued that it was wrong to use personal law as a defence for crimes under POCSO. “Girls who are 14, 15, 16 are getting married. Can there be a defence of personal law? Can you plead custom or personal law for a criminal offence?” he contended. “We are on the question if the marriage will be valid at all in the face of criminal law existing and the POCSO Act,” he argued.
CJI Chandrachud, understanding the gravity of matter, issued a notice and tagged it along with similar petitions filed by NCPCR against other High Court judgments which have taken the same view.
Mehta had requested the bench to stay the judgment. The CJI said if the judgment is stayed, the girl might be restored to her parents against her wishes. Clarifying the point, he said that the parents of the girl wanted her to marry her maternal uncle. “What will happen is, the moment we stay, she will be restored to her parents, which she does not want,” the CJI observed.
After solicitor general pointed out that many such orders had being passed by High Courts in several cases, the CJI said that notices will be issued to decide the question of law and the verdicts may not be used as a precedent. The bench recorded the order while issuing notice in the NCPCR plea to settle the question of law.
Finding Senior Advocate Rajashekhar Rao, an amicus curiae in a previous petition filed by NCPCR on the same issue (NCPCR vs Gulam Deen), the bench asked for his assistance in this matter as well. Rao informed the bench that he has filed a written submission.
The Kerala High Court in a recent decision has held that marriages as per the Muslim personal law are not excluded from POCSO Act and if one of the parties to such a marriage is a minor, the criminal offence under POCSO will be attracted, regardless of the validity of the marriage under the personal law.
In a judgment, dated September 30, 2022, the Punjab and Haryana High Court ruled that Muslim girls of 15 years or more are allowed to marry the person of their choice of their free will and the marriage will be governed under Mohammedan Law. This was seen in the case of Javed vs State of Haryana and others and the case was presided over by Justice Vikas Bahl.
In the present case, the petitioner, Javed is 26 years old and the Muslim girl is 16 years of age. She ran from her house with the petitioner out of her own free will as she wishes to marry him. It was further submitted that both the petitioner and the girl belong to Muslim religion and they performed nikah on July 27, 2022 at a mosque. Upon the complaint of her parents and contending that she is a minor and less than 18 years, she was taken to Ashiana Home.
The Punjab and Haryana High Court observed that the marriage of a Muslim girl continues to be governed by the personal law of Muslims and relied upon the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla. After considering the same, the Court ruled that 15 years is the age of puberty of a Muslim female, and on her willingness and consent, after attaining puberty (15 years of age), she can marry a person of her choice and such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.
The marriage of a Muslim girl continues to be governed by the personal law of Muslims which holds:
- Every Mohammedan of sound mind, who has attained puberty may enter into a contract of marriage.
- Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
- Marriage of a Mohammedan who is of sound mind and has attained puberty, is void if it is brought about without her consent.
Puberty is presumed, in the absence of evidence, on completion of the age of 15 years. (Article 251 in Mullas Principles Of Mahomedan Law, 19th Edition, by M Hidayatullah).
All Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can get divorce and the rights of Muslim women who have been divorced by their husbands and to provide for related matters. These laws are not applicable in Goa, where Goa civil code is applicable for all persons, irrespective of religion. These laws are not applicable to Muslims who are married under the Special Marriage Act, 1954.
In 2021, the centre introduced a Bill to increase the age of marriage for women and ensure harmony in the age limit across religions. The Minister for Women & Child Development, Smriti Irani, had introduced the Prohibition of Child Marriage (Amendment) Bill, 2021 in the Lok Sabha. The Bill is aimed to increase the legal marriage age of women from 18 years to 21 years. The Bill also impacts amending personal laws governing the age of marriage such as the Prohibition of Child Marriage Act, 2006, Special Marriage Act, and personal laws such as the Hindu Marriage Act, 1955.
The Muslim personal law is an area where the courts have repeatedly had to intervene, as in the present case.
—By Adarsh Kumar and India Legal Bureau