Amid the ongoing demand for Uniform Civil Code in the country, the Karnataka High Court has ruled that marriage of a minor Muslim girl is invalid because it violates the POCSO Act, even though the Muslim Personal Law allows the marriage of Muslim girls above 15 years of age. The Karnataka High Court rejected a defendant’s argument in a case involving a minor Muslim girl that suggested a Muslim girl’s marriage upon attaining puberty, i.e. the age of 15 years, will not go against the Prohibition Of Child Marriage Act, 2006. Justice Rajendra Badamikar observed that The Protection of Children from Sexual Offences Act overrides the personal law. As per the act, the legal age for any woman to get involved in sexual activities is 18 years.
The #KarnatakaHighCourt has REJECTED the argument that a minor Muslim girl’s marriage on attaining #puberty will not contravene ‘Child Marriage Act’.
— Live Law (@LiveLawIndia) October 30, 2022
“POCSO Act is a Special Act and it overrides personal law. Under #POCSOAct, the age for involving in sexual activities is 18 yrs” pic.twitter.com/R63jZrK1ry
The High Court said that POCSO is a Special Act and it overrides the personal law which is based on Sharia Law. As she was found to be minor, the police filed a case against her husband, and he was arrested.
Seeking bail, the man had contended that he has not violated any law because under Mohammedan Law, girls who have attained puberty are considered eligible for marriage, and 15 years of age is normally accepted as the age of puberty. The man had argued that since the girl has attained puberty, he had violated the Child Marriage Restraint Act.
The case was related to a 17-year-old Muslim girl who had gone to a primary health centre for a medical checkup, where she was found to be pregnant. As per reports, on June 16, 2022, the victim approached Primary Health Care for a medical check-up, where it was found that she was pregnant. She informed the healthcare officials that she was 17 years old. A complaint was filed in the matter by the Sub-Inspector of Police at KR Puram Police Station against the accused.
The counsel of the accused sought bail from the High Court and argued that under Mohammedan Law, puberty is considered while determining the age of the marriage, and normal puberty age is treated as 15 years. Thus, the counsel requested bail stating the girl had attained puberty, and there was no basis for the case under Sections 9 and 10 of the Child Marriage Restrain Act.
The Court was not satisfied with the argument and stressed that POCSO is a Special Act and it overrides the personal law. As per the POCSO Act, the age for being involved in sexual activities is 18 years.
However, after making this observation, the court granted bail to the man considering that the woman is aged 17 years, capable of understanding things, and there was no evidence that she had objected to the marriage.
As the girl was of 17 years when she approached the health care officials and she was capable of understanding things, it was prima-facie clear that she was also a consenting party though she was under the influence of her parents.
The Court said, “Admittedly, the petitioner is the husband of the victim and looking at these facts and circumstances, there is no serious dispute regarding the marriage as the petitioner himself has produced the relevant documents before the Trial.” Bail was granted to the accused on a personal bond for a sum of Rs 1,00,000.
Multiple courts stated that Muslim girls could marry at the age of 15
The Karnataka High Court’s judgement saying POCSO oversides Personal Law is significant because, in the past, several High Courts have ruled that marriage of Muslim girls above 15 years of age or those who have attained puberty is legal as per Muslim Personal Law, which is based on Sharia Law.
In a recent such judgement, the Punjab and Haryana High Court said that a Muslim female aged 15 years and above can legally marry a person of her choice on her own consent and willingness. On October 28, Punjab and Haryana Court 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 also reassured that Muslim girls will continue to be governed by Islamic personal laws. The Court had added that such a marriage would not contradict the terms of Section 12 of the Prohibition of Child Marriage Act 2006.
However, the Supreme Court will be examining the matter on the petition filed by the National Commission for the Protection of Child Rights (NCPCR), challenging the said judgement.
In June 2012, Delhi High Court had said in a judgment that a Muslim girl could marry a person of her choice at the age of 15 if she had attained puberty.
In December 2014, Gujarat High Court said that the marriageable age of Muslim girls was 15 years and above.
In December 2021, Punjab and Haryana Court had asked the authorities to provide protection to a 17-year-old girl who had married a 33-year-old Muslim man suggesting that as per Islamic law, a girl above the age of 15 can marry a person of her choice.
