The Punjab & Haryana Court has ruled that the general rule of marriageable ages being 18 years for a woman and 21 years for a man doesn’t apply to a Muslim. The bench of Alka Sarin J was hearing a Criminal Writ Petition under Article 226/227 of the Constitution of India where the petitioners, both Muslims, had solemnized their marriage as per Muslim rituals, without the girl having attained the majority. The ruling, in effect, allows a child marriage—otherwise prohibited for all Indian citizens under The Prohibition of Child Marriage Act, 2006—in the present case.
The said Muslim couple had approached the Court basing their case on the earlier decisions by the Court in ‘Kammu vs. State of Haryana & Ors.,’ ‘Yunus Khan vs. State of Haryana & Ors.’ and ‘Mohd. Samim vs. State of Haryana & Ors.’ It was contended that in Muslim law, puberty and majority are one and the same, and that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any one he or she likes and the guardians have no right to interfere.
In fact, the Supreme Court too has, in Shafia Jahan case, ruled that a Muslim marriage is valid if the following conditions are met: both the groom and the bride profess Islam; both have attained puberty; an offer and acceptance in presence of 2 witnesses; giving and taking of mehr; absence of a prohibited degree of relationship.
The Court, while ruling in favor of petitioners, went on to reinforce the above premise, citing the established principles of a Muslim marriage that dictate “Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage” and “Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”
The court further noted:
The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law…the petitioner No.2 [the Muslim woman] being over 17 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 [the Muslim man] is stated to be more than 36 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law.
The ruling, though in conformity with Muslim Personal Law, is in clear contravention with The Prohibition of Child Marriage Act, 2006 that prohibits child marriages. The 2006 Act lays down the minimum age for marriage of the Indian citizens as 21 in case of male and 18 in case of female. It says that every child marriage, whether solemnized before or after the commencement of the Act, shall be violable at the option of either contracting party if he/she were a child at the time of the marriage. The Juvenile justice Act too bolsters it. However, the parallel Muslim personal law, by allowing the age of puberty to be the marriageable age, is not only in violation of the 2006 law but also against India’s efforts to end the scourge of child marriages that is responsible for umpteen social evils.