HC ruling on Muslim minor girl’s marriage challenged in top court

Apex child rights body, the National Commission for the Protection of Child Rights (NCPCR), has moved the Supreme Court against a recent high court ruling that stated that Muslim girls can marry once they attain puberty.

The NCPCR, in a special leave petition filed on Saturday by advocate Swarupama Chaturvedi, according to people in know of the matter, has challenged a recent order by the Punjab and Haryana High Court that had said in June that a Muslim girl over 16 years of age is competent to enter into marriage with a person of her choice.

The body, ET has learnt, has said that the ruling was violative of not just the Prohibition of Child Marriage Act, 2006, but also the Protection of Children from Sexual Offences (Pocso) –– a legislation promulgated to protect children from sexual crimes.

The NCPCR has said such a ruling is in contradiction with other laws governing child rights in the country. “As a body meant for child protection, it is our responsibility to protect the life and liberty of all children and in our view it is a violation of two laws straightaway –– the PCM Act that is a general, secular law and doesn’t distinguish between religions, and the Protection of Children from Sexual Offences (Pocso) Act that does not distinguish between married and unmarried girls. The ruling is indirectly affirming a child marriage and not only violating existing laws.

Child protection laws cannot be seen as separate from Article 21. In fact they strengthen the right to life,” an official said. The Pocso Act by defining a child to be under the age of 18, fixes the age of consent at 18. Before Pocso, the law on age of consent was governed entirely by the Indian Penal Code, 1860, under which for an unmarried girl, the age of consent was 16 and for a married girl it was 15. Later, Pocso brought up the age of consent to 18. Experts said the conflict between both the laws was overcome through section 42A of Pocso which states the overriding effect of the Act. Additionally, as of now, the Hindu Marriage Act, the Indian Christian Marriage Act, the Special Marriage Act and the Prohibition of Child Marriage Act prescribe 18 years as the minimum age of marriage for women and 21 for men.

“There is also a Delhi High Court order a month ago which did not affirm the marriage of a minor citing it is violative of Pocso. So, we want to know how there can be conflicting views on the same matter,” the official added. The Punjab and Haryana High Court’s assertion came during a petition filed by a Muslim couple, who solemnised their marriage in June as per Muslim rites. Both had approached the high court seeking protection of life and liberty from the respondents, including their own family members.

The court, while stating that the marriage of a Muslim girl is governed by the Muslim Personal Law, had cited that as per Article 195 from the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla, since the girl was over 16 years of age she was competent to enter into a contract of marriage with a person of her choice. Since the boy was more than 21 years, both the petitioners were of marriageable age as envisaged by the Muslim Personal Law.

Incidentally, four days ago, the Delhi High Court too had said that a girl on attaining puberty could marry without the consent of her parents under the Muslim laws and has the right to reside with her husband even when she is a minor, and that the state has nothing to do with a girl’s personal space if she is married out of her own will and is happy. The bench was hearing the plea of a couple who got married in March.

The parents of the girl had registered a case under sections 376 of the Indian Penal Code and section 6 (aggravated penetrative sexual assault) of the Pocso Act alleging that the minor daughter was kidnapped. They claimed that their daughter was 15 years old while the man was 25 years when they got married. The couple had then moved the High Court seeking police protection.