India is a country with over 130 crore population. The number is so huge that one out of every six persons in the world is an Indian. To maintain society, humans have evolved the concept of marriage or wedding through which every child gets a father and mother. With the evolving situation, societies around the world have adopted a minimum age for marriage. This has been done in order to secure human rights for every person irrespective of their gender. In India, the minimum age for marriage is 18 for girls and 21 for boys. This has been done so to have a standard way of keeping the legal and social system intact. India has codified marriage, divorce, inheritance and other civil laws for Hindus, Christians, Parsi, etc. Here, Hindus include all Indic faiths like Jain, Buddhist, Sikh, Arya Samaji, etc. Only Muslims following Islamic faith in India don’t have a formal codified law and they work mostly as per their personal laws.
As per the personal laws of Muslims derived from Sharia, age of marriage for women is determined by puberty. There are certain conditions for marriage in Muslim society. As per Muslim personal law, a marriage is complete only after the couple consummate. Recently, Punjab and Haryana High Court in case titled Gulam Deen Vs State of Punjab has held that a Muslim couple aged 16 and 21 years, seeking protection from their families under Article 21 of the Constitution since the Muslim girl above 15 years of age is competent to enter into a contract of marriage with a person of her choice.
Pointing out that the marriage of Muslim girl is governed by the Muslim Personal Law, Punjab and Haryana High Court in its judgment has noted Principles of Mohammedan Law which says that anyone has attained puberty may enter into a contract of marriage.
This is n’t restricted only to the Punjab and Haryana High Court. In the past too, many other High Courts have preferred the Sharia law in secular India and allowed child marriages in the name of personal laws. Irony is that every time, it is to defend Article 21 of Indian Constitution which is secular in nature
“…As per Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, the petitioner No. 2 (girl) being over 16 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No. 1 (boy) is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by the Muslim Personal Law.”.
Justice Jasjit Singh Bedi of Punjab and Haryana High Court, while passing this judgment has relied on one of the judgment delivered by the same High Court in 2014 where it was said that a Muslim girl is legally competent to marry on the completion of the age of 15 years.
“…in the case of Yunus Khan it has been noted that the marriage of a Muslim girl is governed by the personal law of the Muslims”.
Even in 2021, a bench of Justice Alka Sarin of Punjab and Haryana High Court has given a similar verdict relying on the same article 195 of Principles of Mohammedan Law by Dinshah Fardunji Mulla.
This is n’t restricted only to the Punjab and Haryana High Court. In the past too, many other High Courts have preferred the Sharia law in secular India and allowed child marriages in the name of personal laws. Irony is that every time, it is to defend Article 21 of Indian Constitution which is secular in nature.
In 2012, Delhi High Court passed a similar order ruling that a Muslim girl can marry as per her choice at the age of 15 years if she has attained puberty and accordingly stay in her matrimonial house. A bench of Justices S Ravindra Bhat and S P Garg, while citing various Supreme Court judgements on the issue of marriages of minor Muslim girls, had said that, “…This court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18…..”
Similarly in 2014, Gujarat High Court passed an order validating marriage of Muslim children. Justice J B Pardiwala (Future Chief Justice of India) in the order passed observed that a Muslim girl, if she attains puberty or completes the age of 15 years, is “competent” to get married as per Muslim Personal Law.
“…It is not in dispute that the boy and girl both are Muslims. According to the Personal Law of Muslims, the girl no sooner than she attains puberty or completes 15 years, whichever is earlier, is competent to get married without the consent of her parents,”.
The difficulty with these judgments are that a marriage as per Muslim Personal law is a civil contract between two parties and that it is complete only after consummation. Section 375 of Indian Penal Code used to have a very weird exception – “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” However, Supreme Court in its landmark judgment in 2017 has held that a sexual intercourse by a man with his wife, who is below 18 years of age, is rape.
A bench of Justices Madan B. Lokur and Deepak Gupta held, “…Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,”.
Hon’ble Supreme Court further noted that, “Almost every statute in India recognises that a girl below 18 years of age is a child and it is for this reason that the law penalises sexual intercourse with a girl who is below 18 years of age. Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalised under the IPC, only because she is married to him and for no other reason,”
Court held that the exception clause will henceforth be “meaningfully” read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”.
Even the Parliament had recently introduced the Prohibition of Child Marriage (Amendment) Bill 2021 to increase the marriageable age of girls to 21, equal to that of boys.
Furthermore, while introducing the bill, the government said that it would be applicable to every girl irrespective of religion. With High Court’s permitting Child Marriage in the name of personal laws despite of the judgment of Hon’ble Supreme Court is not only bad in the eye of law but is a contempt of Hon’ble Apex Court and Human Right Violation of the children of this nation.