Tuesday, 4 October, 2022
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Can an under-18 Muslim girl be married? HC verdict puts focus back on Child Marriage law

HC grants protection to 17-year-old girl & her spouse as Muslim personal law allows marriage after age 15. Prohibition of Child Marriage Act is silent on personal laws.

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New Delhi: The Punjab and Haryana High Court’s verdict granting protection to a 17-year-old girl married to a 36-year-old man has put the focus back on an unsettled law — does the Prohibition of Child Marriage Act, 2006, override personal laws and apply to Muslims?

The high court was hearing a petition filed by Shoukat Hussain and Fauzia, who tied the knot on 21 January 2021. Represented by advocates Jyotika Panesar and Karan Singh Rana, the couple approached the court contending that the girl’s family was objecting to the marriage. This, according to the lawyers, was “because of the difference in caste and the age gap” between the two.

However, in granting protection to the couple, Justice Alka Sarin stated that the girl and the boy are of marriageable age under Muslim personal law.

The 2006 PCM Act sets the legal age for marriage at 18 years for girls and 21 years for boys. However, Muslim personal law allows marriage if the boy and the girl have attained puberty, which is presumed once they are both 15 years of age.

The 2006 law does not mention whether it bars all underage marriages that are otherwise allowed by any of the religious laws. High courts have also given conflicting judgments on whether the 2006 law applies to Muslims, and the Supreme Court has not issued any authoritative verdict on the issue so far.


Also read: Increase women’s marriage age to 21 for health benefits — Modi govt task force recommends


What Muslim personal law says

The Punjab & Haryana High Court referred to Article 195 from the book Principles of Mahomedan Law by Sir Dinshah Fardunji Mulla, which talks about the capacity for marriage and lists down the various conditions which Muslim men and women need to satisfy in order to be able to get married.

It says, for example, that “every Mahomedan (sic) of sound mind, who has attained puberty” can marry. It also asserts that even “lunatics and minors” who have not yet attained puberty “may be validly contracted in marriage by their respective guardians”.

However, if a Muslim of sound mind who has attained puberty is married off without his or her consent, then that marriage is void.

The explanation attached to Article 195 says when there is no evidence, “puberty is presumed…on completion of the age of fifteen years”.

Taking note of this, Justice Sarin pointed out that the girl in this case is 17 years old, and hence, “competent to enter into a contract of marriage with a person of her choice”.

The judgment, passed on 25 January, went on to acknowledge that the issue at hand was not with regard to the validity of the marriage, but about the apprehension of the petitioner couple that their life was in danger.

Citing Article 21 of the Constitution, which guarantees the right to life and personal liberty, the court then directed the police officials to decide on a protection request that the couple had filed on the day they got married.

PCM Act

The Prohibition of Child Marriage Act, 2006, makes it an offence to promote or permit child marriages. This means it’s a crime if parents or guardians promote, or permit, or even negligently fail to prevent, or attend, or participate in a child marriage.

According to this law, a ‘child’ or a ‘minor’ is a girl aged less than 18 and a boy aged less than 21.

In case a child marriage does happen, the law allows a petition to be filed to declare the marriage void once the child becomes a major. But such a petition needs to be filed within two years of the child attaining majority. This means a girl can file a petition by the time she turns 20, while a boy can do so till he turns 23.

However, there are some things the law is silent on, noted Vikram Srivastava, advocate and founder of the NGO Independent Thought.

“When it comes to child marriage, we have to look at several laws, and not just the PCM Act. It is silent on the sexual relationship/abuse part of marriage and other needs of care and protection, which later laws such as Juvenile Justice (Care and Protection of Children) Act and Protection of Children from Sexual Offences Act (POCSO) cover through better provisions in the best interest of children,” he said.

The PCM Act mentions the Hindu Marriage Act in Section 20, amending the punishment for child marriages under the Hindu law. But it does not mention any other personal law.

Srivastava criticised this for the inconsistency in application of the child marriage law, saying: “The Punjab and Haryana High Court judgment focuses on the point that the PCM Act does not amend any other law except for the Hindu Marriage Act. They have used that loophole in the law. So, there is obviously an urgent need to amend PCM Act and bring in provisions like we have in the JJ Act and POCSO, which make them override any other law.”

Supreme Court advocate Anas Tanwir added: “After the Shayara Bano case (triple talaq verdict), following personal laws is also subject to public order, morality and health. So, in such a case, the 2006 Act will take precedence over the personal laws.”

Tanwir also pointed out that the high court’s observation seemed unnecessary in a case for grant of protection, while asserting that the view is “erroneous”. “Under the Constitution, the personal laws are subject to public order, health and morality, and wherever there is a conflict between personal law and the Constitution, the latter, of course, prevails. Therefore Muslim personal law will also be subject to public order, health and morality,” he said.


Also read: Natural disasters causing economic destruction can increase child marriages — study


Conflicting HC judgments

Different high courts have given conflicting judgments when it comes to conflicts between the PCM Act and Muslim personal law.

The Karnataka High Court and the Gujarat High Court have held that in cases of minor Muslim girls, the 2006 law will prevail over personal laws.

However, the Punjab and Haryana High Court had ruled the reverse in 2018, saying Muslim personal law would override the 2006 Act. It ruled that puberty and majority in Muslim law are the same, and that “a boy or girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere”.

Within the Gujarat HC too, there has been contradiction — in a 2014 order, it recognised Muslim personal law and said: “According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents.”

However, in 2015, it ruled that the 2006 law was a “special act” and would override the provisions of Muslim personal law, Hindu Marriage Act or any personal law.

No authoritative verdict from SC

In his opinion in a 2017 Supreme Court judgment, Justice Deepak Gupta (now retired) had acknowledged the 2006 PCM Act as a “secular act applicable to all”.

“It being a special act dealing with children, the provisions of this act will prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act, in so far as children are concerned,” the court said.

However, this case was about Exception 2 to Section 375 (rape) of the IPC, which allowed the husband of a girl child — between 15 and 18 years of age — blanket liberty and freedom to have non-consensual sexual intercourse with her. The Supreme Court read down the provision to hold that sexual intercourse by a man with his wife, who is below 18 years of age, is rape, but did not touch upon the issue of age of marriage at all.

Justice D.Y. Chandrachud, in his opinion in the Hadiya marriage case, had recognised that under Muslim law, one of the conditions of marriage is that “both should be of the age of puberty”. While this was not the primary question in that case, a 16-year-old Muslim girl approached the Supreme Court in 2019 citing Justice Chandrachud’s opinion to validate her marriage saying that she has attained puberty.

However, this case is currently pending in the Supreme Court.


Also read: How 2 UP girls got their weddings called off as child marriage bids see rise during pandemic


 

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2 COMMENTS

  1. Thanks god for theanti- conversion laws of UP, it prevents 15 year old hindu girls to be abudcted and get married under muslim personal law overnight.

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