The Punjab and Haryana High Court recently reaffirmed that a Muslim girl who reaches the age of 15 can marry whoever she wants, and such a marriage would not violate the Prohibition of Child Marriage (PCM) Act. Notably, according to the personal laws in Islam (Sharia), the age of attaining puberty is 15. The High Court has also reassured that Muslim girls will continue to be governed by Islamic personal laws.
In his order, Justice Vikas Bahl stated, “Such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.”
A 16-year-old had asked a childcare agency for permission to reconcile with her 26-year-old spouse. The remark was made during the hearing of Javed’s habeas corpus case, in which he was challenging the ‘imprisonment’ of his 16-year-old wife in a children’s care home.
BREAKING: Muslim girl can marry person of her choice when she turns 15 and this will not be in derogation of Prohibition of Child Marriage Act, says Punjab And Haryana High Court. 16 year old had sought release from child care agency to reunite with 26 year old husband
— LawBeat (@LawBeatInd) October 28, 2022
The girl informed the court that she had fled her home to marry the person of her choice and reside with him. However, her family members had forcibly engaged the girl to her maternal uncle. Uday Chauhan, appearing for the minor girl told the court that the girl had performed Nikah with the 26-year-old man on July 27, 2022.
The court relying on Yunus Khan vs. State of Haryana & Ors ruled that their marriage was legal under Islamic law and that the petitioner had legal custody of the detenue. In the petitioner’s case, his marriage to his wife was consummated voluntarily and was recognized as genuine because both parties were Muslims, despite the fact that the detenue was a minor and under the age of 18.
The single bench of Justice Vikas Bahl ordered her release from the child care agency and custody transfer to the petitioner after reviewing the relevant records, legal arguments, and the detenue’s statement given pursuant to Section 164 of the CrPC.
A similar High Court decision that relied on the Yunus Khan case ruling to say that a Muslim girl over the age of 15 is competent to enter into a contract of marriage with the person of her choice has been challenged in the Supreme Court by the National Commission for the Protection of Child Rights (NCPCR).
The NCPCR argued in its appeal that the ruling violated the PCM Act and the Protection of Children from Sexual Offences Act 2012 (POCSO Act) by effectively allowing child marriage and sexual intercourse with children. The Supreme Court has appointed Senior Advocate Rajshekhar Rao as Amicus Curiae in the case, and it is expected to be heard soon November 7.
Prohibition of Child Marriage (Amendment Bill) 2021
It is worth noting that the Parliament previously introduced the Prohibition of Child Marriage (Amendment) Bill 2021, which would raise the marriageable age for girls to 21, the same as for boys. Furthermore, when introducing the bill, the government stated that it would apply to all girls, irrespective of their religion. The Standing Committee on Education, Women, Children, Youth and Sports examining the Prohibition of Child Marriage (Amendment) Bill 2021 was recently granted an extension.
The much-discussed ‘Prohibition of Child Marriage (Amendment) Bill 2021’ proposes raising the marriage age for girls from 18 to 21 years and consequential amendments in laws pertaining to the age of marriage i.e. ‘the Indian Christian Marriage Act, 1872’; ‘the Parsi Marriage and Divorce Act, 1936’; ‘the Muslim Personal Law (Shariat) Application Act, 1937’; ‘the Special Marriage Act, 1954’; ‘the Hindu Marriage Act, 1955’; and ‘the Foreign Marriage Act, 1969’.
