New Delhi: In a crackdown on child marriages in the state, Assam Police have arrested 3,047 people in the past two weeks, registered 4,235 cases and identified 6,707 accused.
The statewide crackdown started on 3 February and those arrested have been booked under the Protection of Children from Sexual Offences Act, 2012, (POCSO) and the Prohibition of Child Marriage Act, 2006 (PCMA).
Assam Chief Minister Himanta Biswa Sarma asserted in a tweet Friday: “Child marriage is a social scourge and we are committed to ensure this evil practice is stopped.”
Child marriage is a social scourge and we are committed to ensure this evil practice is stopped. The arrests in Assam include accused and perpetrators of this crime and not done after verifying their religious affiliations. #AssamAgainstChildMarriage pic.twitter.com/jDLSqRFjUM
— Himanta Biswa Sarma (@himantabiswa) February 17, 2023
According to reports, the state cabinet has resolved to book men who have married girls below 14 years of age under the POCSO Act, and those who have married girls in the 14-18 age group, under the PCMA.
Critics have alleged that the crackdown has a “communal design” and is directed against the “religious minority”.
This has also reignited the debate on the uncertainty over the legal age of marriage for Muslim women.
While the PCMA sets the legal age for marriage at 18 years for girls and 21 years for boys, and the POCSO Act puts the legal age for consent as 18 years, Muslim personal law allows marriage if the boy and girl have attained puberty. Puberty is presumed at the age of 15 years.
The PCMA does not mention whether it bars all underage marriages that are otherwise allowed by any of the religious laws. While the high courts have given conflicting judgments on the issue in the past, the Supreme Court is set to look into whether the age limit for marriage under the PCMA overrides the age limit under Muslim personal law.
What does Muslim law say on the age of marriage, and who determines the age of puberty? Does the Protection of Child Marriage Act apply to Muslim marriages? And what have the courts said about this?
ThePrint explains.
Also read: Humane approach should be adopted in dealing with child marriages: Experts in Assam
What does the law say?
Prohibition of Child Marriage Act, 2006 makes it an offence to promote or permit child marriages. So, it is a crime if parents or guardians promote or permit or negligently fail to prevent, or attend or participate, in a child marriage.
According to the law, a child or minor is a girl aged less than 18 years and a boy aged less than 21 years.
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.
The law provides for imprisonment of two years for a male adult marrying a child, and for any parent or guardian who permits a child marriage or attends or participates in it.
Section 11 of the PCMA says that where a minor child gets married, it would be presumed that the “person having charge of such minor child has negligently failed to prevent the marriage from being solemnised”, and the accused would have to prove the presumption wrong.
The POCSO Act was enacted to protect children from the offences of sexual assault, sexual harassment and pornography. The law criminalises all sexual acts among those under 18, regardless of whether consent is present or not.
In other words, the law defines a child as someone below the age of 18 years and does not recognise their consent as valid.
Sexual assault under the POCSO Act is a non-bailable and cognisable offence — meaning that the police can make an arrest without a warrant.
What is the age of marriage for Muslims?
When ruling on the legal marriageable age for Muslim women, courts have traditionally referred to Muslim personal law. The book Principles of Mahomedan Law by Sir Dinshah Fardunji Mulla is usually considered an authoritative commentary on this.
Article 195 in the book talks about the capacity for marriage and lists the various conditions which Muslim men and women need to satisfy in order to be able to marry each other.
According to the book, “every Mahomedan 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”.
The explanation attached to Article 195 says that when there is no evidence, “puberty is presumed… on completion of the age of 15 years”. However, the marriage is considered void if a Muslim of sound mind who has attained puberty is married off without consent.
Therefore, Muslims above 15 years of age can enter into a legal marriage, according to their personal law.
However, the gap between the Muslim personal law and legislation such as the POCSO Act and PCMA prescribing a cut-off date of 18 years for marriage and sexual activity, has created confusion and uncertainty over the legality of marriages under Muslim personal law.
What have courts said?
There have been conflicting judgments by different high courts on the interplay between Muslim personal law and the PCMA.
For instance, the Karnataka High Court and the Gujarat High Court have held that in cases of minor Muslim girls, the 2006 law will prevail over the provisions of Muslim personal laws.
The Gujarat High Court ruled in 2015 that the 2006 law was a “Special Act” and would override the provisions of Muslim personal law, Hindu Marriage Act, 1955, or any personal law.
In November last year, the Kerala High Court also ruled that “marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act”. The court asserted that “if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply”.
However, the Punjab & Haryana High Court ruled in 2018 that the provisions of Muslim personal law would prevail over provisions of the PCMA. It contended that puberty and majority in the 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”.
In another February 2021 judgment, the Punjab & Haryana High Court had granted protection to a 17-year-old Muslim girl married to a 36-year-old Muslim man.
The court was hearing a petition filed by a Muslim couple, Shoukat Hussain and Fauzia, who had tied the knot on 21 January, 2021. The couple had approached the court contending that the girl’s family was objecting to the marriage. This, their lawyers said, was “because of the difference in caste and the age gap” between the two.
While granting protection to the duo, Justice Alka Sarin cited Muslim personal law to note that the girl and the boy were of marriageable age under the personal law.
The Gujarat High Court had also recognised Muslim personal law in a 2014 order and said: “According to the personal law of Muslims, the girl no sooner she attains puberty or completes 15 years, whichever is earlier, is competent to get married without the consent of her parents”.
Supreme Court to settle the issue
The matter has now reached the Supreme Court, after an order passed by the Punjab & Haryana High Court in September 2022 was challenged by the National Commission for Protection of Child Rights (NCPCR).
The high court was hearing a habeas corpus petition filed by a 26-year-old man against the detention of his 16-year-old wife in a children’s home in Panchkula. Relying on Muslim personal law, the high court had directed her to be released. The children’s home was directed to hand over her custody to her husband.
Last month, the Supreme Court said the high court judgment should not be relied upon as a precedent in any other case.
A bench comprising Chief Justice of India D.Y. Chandrachud and Justice P.S. Narasimha passed the interim order, while issuing a notice on the NCPCR petition which alleges that the high court judgment goes against the POCSO Act, which prescribes 18 years as the age for sexual consent.
The NCPCR has filed a similar petition in the apex court challenging another order passed by the Punjab & Haryana High Court in June last year, granting protection to a 16-year-old girl and a 21-year-old boy. Both of them were married according to Muslim rites and ceremonies.
The apex court issued notice on this petition in October last year, while appointing senior advocate Rajshekhar Rao as amicus curiae.
Similar petitions have been filed by the National Commission for Women as well. A total of five such pleas have been clubbed together and will be heard by the Supreme Court.
‘Causing havoc in people’s private lives’
On 14 February, the Gauhati High Court questioned the application of the POCSO Act in the child marriage cases in Assam, while granting anticipatory bail in one such case.
“What is the POCSO (charge) here? Merely because POCSO is added, does it mean judges will not see what is there? We are not acquitting anyone here. No one is preventing you to probe,” Justice Suman Shyam was quoted as saying.
Several similar matters came up before the court the same day. In another such case, the court asserted that “these are not matters for custodial interrogation”, and said “it is causing havoc in the private life of people, there are children, there are family members and old people”.
In another case, the court noted that Section 376 (rape) of the Indian Penal Code was added to the FIR. Calling the allegations “weird”, the court asked: “Is there any allegation of rape here?”
(Edited by Nida Fatima Siddiqui)
Also read: India’s district court judges don’t show in-group bias against women, Muslims: Study