Supreme Court to review HC order on Muslim girls’ marriage age
The Supreme Court on Friday restrained all courts in the country from treating as a precedent, a recent Punjab and Haryana high court judgment, which held that Muslim girls become legally competent to marry after attaining puberty at the age of 15 years.
The Supreme Court on Friday restrained all courts in the country from treating as a precedent, a recent Punjab and Haryana high court judgment, which held that Muslim girls become legally competent to marry after attaining puberty at the age of 15 years.
Applicable personal laws in Islam allow a Muslim girl to enter into a contract of marriage after attaining puberty whereas a set of common civil and criminal laws in India proscribes the marriage of girls under 18 and further makes sexual intercourse with minors a penal offence.
“Pending further orders, the September 30 judgment of the high court shall not be relied as a precedent in any other case,” directed a bench comprising Chief Justice of India Dhananjaya Y Chandrachud and justice PS Narasimha.
Admitting an appeal by the National Commission for Protection for Child Rights (NCPCR) in the matter, the top court also agreed to examine the child rights body’s legal argument that a personal law or a religious right cannot override the mandate of the criminal laws of the land that aim at protecting the girl child.
Solicitor general Tushar Mehta, representing NCPCR, stressed that any order or judgment approving of minor’s marriage was not just a violation of the Prohibition of Child Marriage Act, 2006, but also the Protection of Children from Sexual Offences (POCSO) and the Indian Penal Code (IPC).
Mehta pointed out that there is more than one high court which has followed the reasoning that a minor girl can get married if the personal law allows so. “Young girls are getting married. Can personal law be claimed as a defence to commit criminal action? Criminal action is being legitimised through such orders,” rued the SG, as he urged the bench to issue an interim order so that high courts or trial courts refrain from passing similar orders.
Mehta said that NCPCR and other bodies will have to keep coming back to the top court if there was no interim order. “Muslim girls who are 14, 15 or 16 years old are getting married. Can there be a defence of personal law? Can you plead custom or personal law as a defence against a criminal offence? Please, stay the order, otherwise, these petitions will be filed again and again,” said the SG.
Mehta added that a similar order was passed by the Punjab and Haryana high court in June 2022 as well and that the top court in October 2022 appointed senior advocate Rajshekhar Rao to assist the court as amicus curiae in what the court called as an important question of law.
Acceding to the SG’s request, the bench said that the high court judgment holding that a Muslim girl aged 15 can enter into a legal and valid marriage as per personal law should not be relied on as a precedent in any other case.
NCPCR’s petition, filed through advocate Swarupama Chaturvedi, has impugned the September 30, 2022 order of the Punjab and Haryana high court while hearing a habeas corpus petition filed by a Muslim man against the alleged detention of his 16-year-old ‘wife’ in a children’s home in Panchkula.
The high court noted that 15 years is the age of puberty of a Muslim girl, and she can on her own willingness and consent marry a person of her choice after attaining puberty. Such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act, it added.
Seeking a reconsideration of this judgment, NCPCR pointed out that custom cannot be allowed to perpetuate child marriages, particularly when POCSO lays down that sex with a minor will be punishable as a sexual assault under the law.
“This legal position cannot change due to marital status of the child,” said the petition, emphasising that the high court judgment has virtually endorsed child marriage which is illegal in India under POCSO– a law that applies to everyone.
The child rights body also highlighted a Delhi high court judgment in July 2022, which clearly held that POCSO is not subject to customary laws, and the objective of the Act is to protect children below the age of 18 from sexual assault.
“The high court was not justified in adjudicating upon the matter partially and without considering other statutory laws applicable on the same facts and circumstances as the Respondent No. 2 was a minor girl child. lt is respectfully submitted that even if the Muslim personal law considers that the someone attaining puberty makes them eligible for marriage, the hon’ble high court has sidestepped the issue of the validity of marriage completely,” contended the petition.
Referring to a 2017 judgment by the Supreme Court, NCPCR maintained that the highest court of the land has also stressed on the rationale behind fixing 18 as the age of majority since a person is unable to look after his or her interest below that age.
“This hon’ble court has observed and discussed at length the harmful effects of child marriage upon girl children specifically; results of a child marriage include severe health after-effects such as teenage pregnancy or miscarriage along with a higher chance of being subjected to domestic violence. Apart from physical consequences, there are other unyielding consequences such as withholding of education and financial dependence of girl children,” stated the plea.
It further pointed out that high courts of Karnataka and Meghalaya have also dealt with similar cases but took contradictory views on whether a Muslim girl can marry at the age of 15. “There is difference of opinion in between different high courts on this issue and also similar question of law is pending before this hon’ble court and therefore, the indulgence of this hon’ble court is necessary in the interest of justice,” added the petition.
