The Supreme Court’s recent dismissal of the National Commission for Protection of Child Rights’ (NCPCR) petitions on the ground of locus standi has left a core constitutional question unanswered: can Muslim personal law by recognizing marriage on attainment of puberty (often 15–16 years) be allowed to prevail over statutory child-protection laws that apply uniformly to every child in Bharat?
Across several High Courts, numerous rulings have invoked Muslim personal law (Shariat) to uphold the validity of marriages of girls below 18 years on the logic that puberty confers capacity to marry. In practice, this has created pockets where a claim of marriage under Muslim personal law is used to blunt or complicate the operation of the Protection of Children from Sexual Offences Act(POCSO Act) of 2012, which defines a child as any person under 18 years and criminalizes sexual activity with minors irrespective of the respective person’s consent or marital status.
When the NCPCR, a statutory guardian created by Parliament to protect the child rights, approached the Supreme Court to challenge such outcomes, its petitions were turned away at the threshold as those of a “stranger.” That choice elevates the ‘rule of locus’ over the ‘rule of law’, and sidelines the very institution designed to speak for the voiceless minors.
Let us be clear about first principles. The Constitution of Bharat promises equality under Article 14, permits special protection for children as per Article 15(3) and guarantees the right to life and personal dignity under the aegis of Article 21. These guarantees are not contingent upon faith. Allowing Muslim personal law to validate a 15 or 16-year-old girl’s marriage while a similarly situated Hindu, Sikh, Christian, Buddhist, Jain or Parsi girl remains fully protected until 18 years, fractures the concept of equal citizenship and undermines the principle of ‘one law, one protection’.
Statutory architecture points the same way. The Prohibition of Child Marriage Act, 2006 sets 18 years as the minimum age for a woman’s marriage and POCSO treats sexual activity with anyone under 18 years as an offence, whether they are married or not that doesn’t matter. In Independent Thought v. Union of India Case (2017), the Supreme Court held that sexual intercourse with a wife below 18 years amounts to rape, striking down a colonial exception. That judgment rightly subordinated custom to child protection; its constitutional logic applies with full force when Muslim personal law is invoked to dilute the reach of POCSO.
From a nationalist and right-of-centre perspective, this is not a quarrel with faith; it is a defence of Bharat’s constitutional order. National integrity requires uniform protection for children. We cannot achieve Viksit Bharat @2047 while tolerating fragmented regimes where a child’s safety turns on the personal law applicable exclusively to her family and community. Many within the Muslim community themselves oppose child marriage and child protection is not anti-faith; it is pro-child and pro-nation.
What should be done?
- Judicial clarity: The Supreme Court must, at the earliest opportunity, affirm that POCSO and PCMA overrides all personal laws, including the Muslim personal law, wherever they conflict on age and capacity.
- Institutional locus: Parliament should explicitly reaffirm NCPCR’s standing to move the Supreme Court/High Courts in systemic child-rights matters so that guardianship is not defeated by technicalities.
- Uniform enforcement: Union and States must issue clear directions that all allegations involving sexual activity with a person under 18 years are treated as POCSO cases first, irrespective of the claim of marriage under any personal law, including the Muslim personal law.
- Public consensus: Build a cross-community compact that no religious norm can authorize or excuse child marriage. This is Rashtra Dharma, a duty to protect and secure our daughters.
Bharat’s message must be unambiguous: when it comes to safeguarding the girl children, the law of the land prevails over the personal law, including the Muslim personal law. Anything less betrays our constitutional promise and our civilizational conscience.
