On Friday, 13th January 2023, the Supreme Court ruled that the Punjab and Haryana High Court’s decision in the case Javed v. State of Haryana and Others, which concluded that a Muslim girl aged 16 years can engage in a legal and legitimate marriage under Muslim Personal Law, should not be used as a precedent in any subsequent instances.
This interim order was issued by a bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha while issuing notice in a special leave petition filed by the National Commission for the Protection of Child Rights challenging the HC judgment on the grounds that it violates the Protection of Children from Sexual Offences Act, which prescribes the age for sexual consent as 18 years. Solicitor General Tushar Mehta, standing for the NCPCR, voiced issues about utilizing personal law as a defence for offences under POCSO.
SG Tushar Mehta submitted, “Girls who are 14,15,16 are getting married. Can there be a defence of personal law? Can you plead custom or personal law for a criminal offence? We are on the question if the marriage will be valid at all in the face of criminal law existing and the POCSO Act.”
SG Tushar Mehta: Young girls are getting married. Can personal law be claimed as a defence to commit criminal action. Criminal action is being legitimized.
— Bar & Bench (@barandbench) January 13, 2023
CJI DY Chandrachud: we will issue notice and tag
CJI Chandrachud agreed to send a notice in the matter and file it with other similar petitions filed by the NCPCR against other High Court judgments holding the same position. In the meanwhile, the SG asked the bench to delay the ruling. However, if the HC verdict is stayed, the girl may be repatriated to her parents against her will, according to CJI Chandrachud.
CJI Chandrachud said, “Her parents wanted her to marry her maternal uncle. What will happen is, the moment we stay she will be restored to her parents, which she does not.”
SG: please stay this
— Bar & Bench (@barandbench) January 13, 2023
CJI: If we stay then the girl has to go back to her parents and she does not want that
SG: then these petitions will be filed again and again
SG Tushar Mehta pointed out that several such orders are being passed by various high courts in different cases. To this, CJI Chandrachud said, “We’ll issue notice to decide upon the question of law and say that the judgment may not be used as precedent.”
The bench noted in the order while giving notice on the NCPCR plea, “Pending further orders, impugned judgment shall not be relied upon as precedent.”
CJI: Pending further orders September 30 order of HC shall not be relied as a precedent in any other case #supremecourt
— Bar & Bench (@barandbench) January 13, 2023
It should be noted that the Kerala High Court has declared that marriage under Muslim personal law is not exempt from the POCSO Act and that if one of the parties to such a marriage is a juvenile, the criminal offence under POCSO would be attracted, regardless of the legitimacy of the marriage under the personal law. Karnakata High Court had also ruled that POCSO Act overrides Personal Law as it is a special act, and therefore the marriage of minor Muslim girls is invalid even if it is allowed under the personal law.
On the other hand, some other high courts have ruled that the marriage of Muslim girls after attaining puberty is valid as per Muslim personal law. Apart from Punjab and Haryana High Court, Delhi High Court and Jharkhand High Court had cited the Sharia law to rule that Muslim girls can marry after attaining 15 years of age, as it is the ‘Marriageable Age’ under Islamic Sharia Law. The high courts had said that a Muslim girl who has attained 15 years of age or has attained puberty is free to marry anyone as per the Muslim Personal Law.
On the other hand, Punjab and Haryana High Court had ruled that a Muslim girl above the age of 16 years is competent to marry any person of her choice.
