New Delhi: The Punjab and Haryana High Court has again held that the marriage of a Muslim girl aged 15 is valid and that such marriages are not void under the Prohibition of Child Marriage Act (PCMA), 2006.
Such marriage was permissible under Islamic Law and was not ‘void’ under Section 12 of the PCMA, 2006, Justice Vikas Bahl ruled.
Section 12 of the PCMA lists the circumstances under which the marriage of a minor child is void. These circumstances include cases of enticement, compelled by force, or sold for the purposes of marriage.
However, this is not the first time that the Punjab and Haryana High Court has ruled on these lines. In multiple cases, it has held that such marriages are valid under Muslim law.
The high court’s decision is especially relevant because in a similar case, the National Commission of Protection of Child Rights (NCPCR) has raised objections before the Supreme Court.
In the present case, the 15-year-old had requested release from a childcare home so that she could reside with her 26-year-old spouse. The marriage was performed as per the free will of both the parties.
The high court said that despite the fact that the girl was a minor, the marriage would be valid. “A perusal of the above said judgment would show that a coordinate [i.e., two judge] bench of this court in the above said judgment had observed that the marriage of a Muslim girl continues to be governed by the personal law of Muslims,” the high court said in its order dated 30 September.
The high court relied heavily on the 2014 Yunus Khan case in which it had said that a Muslim girl may choose to marry on attaining puberty (15 years) according to Islamic Law.
The judge relied on the verdict to hold that the marriage was valid in terms of personal law, and therefore not ‘void’ under the PCMA. To buttress such contention, Justice Bahl referred to multiple decisions of the same high court in the last couple years.
It has regularly granted protection to such couples, notwithstanding their child marriage. Interestingly, the high court had last year said that because of the prohibition contained in the PCMA, such marriage would be void.
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Pending NCPCR application
The issue is presently pending consideration by the Supreme Court. Earlier this month, the NCPCR had challenged an order of the same high court which had upheld such a marriage.
In its petition, the apex child rights body had said that the order was not just a disregard of the POCSO, but also the PCMA. Solicitor General Tushar Mehta had said that the central question was whether the HC could have issued an order which violated penal provisions of the PCMA, which is a criminal legislation.
The apex court will next hear the matter on 7 November.
Over the years, courts have increasingly raised concerns about mandatory application of the child-welfare legislation, where teenagers are involved in consensual relationships and local customs allow child marriages.
(Edited by Tony Rai)
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