Will examine if Muslim girls can marry after reaching puberty: SC
An SC bench found it to be a matter requiring the attention of the top court in view of a Punjab & Haryana HC judgment that accorded a minor Muslim girl the right under the Muslim Personal Law
Observing that the issues relating to a minor Muslim’s girl marriage involves questions of law, the Supreme Court on Monday set about to examine whether a Muslim girl becomes legally competent to marry after attaining the age of puberty at 15 years while several Indian statutes prohibit the marriage of girls under 18.
A bench of justices Sanay Kishan Kaul and AS Oka found it to be a matter requiring the attention of the top court in view of a recent Punjab & Haryana high court judgment that accorded a minor Muslim girl the right under the Muslim Personal Law to marry a person of her choice once she attains puberty at 15 years of age.
The bench also noted that there was a raft of judgments by different high courts on this issue, warranting an enunciation of the correct legal position by the Supreme Court, including on the validity of such a marriage.
“This matter will have to be considered...There is a question of law that requires consideration,” said the bench, as it proceeded to appoint senior advocate Rajshekhar Rao as amicus curiae. The court will hear the case next on November 7.
Under the matrimonial laws in the country, the legal age of women to get married is 18. The Prohibition of Child Marriage Act criminalises child marriages whereas the Prevention of Children from Sexual Offences (Pocso) Act makes it a penal offence to have sexual intercourse with a minor irrespective of custom or consent.
The apex court was on Monday hearing an appeal filed by the National Commission for Protection of Child Rights (NCPCR) through advocate Swarupama Chaturvedi against a Punjab & Haryana high court judgment of June 13, ruling that a Muslim girl over the age of 15 years is competent to enter into a contract of marriage with the person of her choice.
“The law is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law,” the high court said in its judgment, quoting Article 195 in Mulla’s authoritative treatise on Muslim personal laws that every Mahomedan (Muslim) of sound mind, who has attained puberty, may enter into a contract of marriage. In the absence of evidence, a Muslim girl is presumed to have attained puberty on completing the age of 15 years, as per Article 195.
Representing NCPCR in the top court, solicitor general Tushar Mehta clarified that the child right body is in appeal because of important questions of law that arise in this matter. “The suggested broad question is the impact of Child Marriage Restraint Act, Pocso Act and the Indian Penal Code,” he added.
Even as the bench agrees to examine the matter, Mehta requested the bench to stay the high court order so that it is not treated as a precedent before other courts. The bench, however, replied that the judgment will not act as a precedent after the Supreme Court has issued notice and agreed to examine its correctness.
The high court judgment came while disposing of a protection plea of a Muslim couple wherein a 21-year-old man and a 16-year-old girl approached it for protection of their life and liberty from family members.
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.
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