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What is a Muslim ‘child marriage’? Punjab-Haryana HC order latest in series of contrary verdicts

Punjab & Haryana High Court last week held marriage of Muslim bride, 17, with Hindu groom as valid due to provisions of Muslim personal law. Couple had petitioned court for protection.

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New Delhi: The Punjab & Haryana High Court held last week that the marriage of a 17-year-old Muslim bride and 33-year-old Hindu groom is valid in law. The court ruled that according to Muslim personal law, the bride had attained puberty and was therefore “competent” to enter into a marriage of her choice, regardless of the objections of her family members.

The petitioners, Nargis and her unnamed husband, had sought protection from the high court, pleading that their life and liberty were under threat due to opposition from the young woman’s family members.

The couple’s lawyer submitted to the court that the marriage was permitted under the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the 1937 Act contains a clause providing that the Shariat shall govern all marriages regardless of anything contained in any other “usage or customs”. The counsel also said that the age of majority is held to be the same as the assumed age of puberty in Muslim personal law: 15 years.

The single-judge bench of Justice Harnaresh Singh Gill concurred with the petitioners that Nargis was of “marriageable age” under Muslim personal law. The judge further said that the couple could not be deprived of their fundamental rights under Article 21 of the Constitution — namely the rights to life and personal liberty — merely because they went against the wishes of family members.

Legal observers have pointed out that religious personal laws do not always line up with India’s “secular” Prohibition of Child Marriage Act, 2006 (PCMA 2006).

PCMA 2006 defines a ‘child marriage’ as one where either of the two parties is a child. A “child” is defined as a woman below 18 years of age, and a man below 21. This law renders a “child marriage” voidable by a party who petitions court. However, there has always been a lack of clarity on whether PCMA 2006 supersedes personal laws.

Various high courts have passed conflicting judgments on the issue, and there has so far been no authoritative Supreme Court judgement on the issue.

The Punjab and Haryana High Court verdict comes as the government is looking to increase the legal marriageable age of women to 21 years from 18.


Also Read: Why raising marriage age of women is another step towards BJP’s pet goal of uniform civil code


Conflicts between Prohibition of Child Marriage Act & personal law

The Punjab & Haryana High Court has held on several occasions, including in 2010, 2014, and 2018, that, according to Muslim law, it is permissible for a Muslim woman to marry without her family’s consent as long as she has reached the stipulated age of puberty, and that no legal action can be taken to void such marriages.

However, in 2013, a single-judge bench of the Karnataka High Court ruled that the Child Marriage Act could supersede Muslim personal law.

The court had made the ruling in a case where a 17-year-old petitioner had said that her marriage had been prevented by local authorities citing PCMA provisions. The court dismissed the petitioner’s argument that the PCMA did not apply in case of Muslim marriages.

The Supreme Court has not given clear or consistent answers when it comes to conflicts between the PCMA and personal laws.

In the Hadiya case of 2018, the Supreme Court set aside an earlier order of the Kerala High Court, which had annulled the marriage of an adult woman who had converted to Islam and married a Muslim man. In this case, listing the conditions for a valid Muslim marriage, Justice D.Y. Chandrachud had given his opinion that under Muslim personal law both parties should have attained the age of puberty. He also invoked Article 21 of the Constitution.

In a 2017 case dealing with marital rape, however, Justice Deepak Gupta of the Supreme Court had given the opinion that the PCMA is a “secular act” that should “prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act”.

Now, a proposed new law seeks to get rid of the grey areas by introducing a uniform minimum age of marriage for women — 21 years — regardless of their religious affiliation.

PCMA Bill 2021

The Prohibition of Child Marriage (Amendment) Bill, 2021, attempts to do away with the legislative sanction afforded to the marriages of Muslim women aged above 15 by superseding the Shariat (Application) Act.

The contentious bill amends Section 1 of the PCMA 2006 by inserting the clarification that the provisions of the law hold good “notwithstanding anything contrary or inconsistent therewith contained in… the Muslim Personal Law (Shariat) Application Act, 1937 or any other custom or usage or practice in relation to marriage, under any other law for the time being in force”.

The amendment bill has been referred to a standing committee for further discussion and scrutiny.

According to critics, if this law comes into effect it could become a tool in the hands of parents who disapprove of their sons or daughters choosing their own partners and could “cast the net of criminality wider” against young couples.

‘Court cannot close its eyes…’

In the case from last week, Justice Gill cited Article 195 from Principles of Mahomedan Law by Dinshaw Fardunji Mulla to support the petitioners’ argument that Nargis was of legal age.

The book is held to be an authoritative compendium on Muslim personal law, and avers in Article 195 that a Muslim girl or boy is presumed to have attained puberty upon completing 15 years of age and is therefore competent to enter into a marriage contract.

“[Nargis] is of marriageable age under Muslim Personal Law,” Justice Gill said, adding that the court could not “close its eyes” to the petitioners’ apprehensions about their safety. “Simply because the petitioners married against the wishes of their family members, they cannot be denied their constitutionally guaranteed fundamental rights under Article 21 of Constitution,” he said.

The judge noted that in a 2014 case, the Punjab & Haryana High Court had made a similar ruling that Muslim personal law governed the marriage of all Muslims, and that no person could be deprived of their life and personal liberty for choosing a partner once they had reached ‘marriageable age’.

Akshat Jain, a first-year student of law at NLU, Delhi, is an intern with ThePrint

(Edited by Asavari Singh)


Also Read: New marriage bill can cast the criminality net wider, draw more Indian women to courts & cops


 

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