Kerala Government issues Muslim Marriage Circular based on Jamaican Law; Law Secretary justifies

Recently, the Local Self Government Department (LSGD), Kerala issued a circular allowing  Marriage Registrars’ to register Muslim marriages where the man is less than 21 and the woman is less than 18 (but older than 16). This circular issued by Principal Secretary, James Varghese created a political storm in Kerala. Varghese later clarified that the circular was issued as per the directive of the Law Department.

The LSGD issued the Circular under the notion that, Muslim Marriage Act, 1957, did not mandate any age limit for marriage and also the Prohibition of Child Marriage (PCM) Act, 2006 did not indicate that the marriage between a man below 21 years and a woman below 18 years was not invalid. Both the above mentioned reasons seem to be invalid and absurd.

In the statement of objects and reasons of the PCM Act, it is mentioned that the Act aims “to make a provision for declaring the child marriage as void in certain circumstances”. Secondly, there is no statute named Muslim Marriage Act, 1957 prevailing in India. Allegedly, the Act mentioned in the Circular is the Muslim Marriage Act, 1957 of Jamica. This legislation is available here.

The Law Secretary C P Ramaraja Prema Prasad, who is a District & Sessions Judge on deputation, instead of admitting the error that occurred on his part; defended his stand by saying that, “Such a law is available on the internet. It's not in practice in India. We had to incorporate the accepted principles being followed in certain Muslim Nations since Muslim laws are not codified in India.”

However, this also seems not be true. The law relating to Muslim marriages is codified by Mulla in his treatise on Mohammaden Law and the law is also settled by precedents. It was in Seema v. Ashwani Kumar, the Supreme Court ordered the compulsory registration of marriages, irrespective of religion. 

It seems that the Law Department which is supposed to advise the Government against such regressive laws has bent backwards without making adequate study on the subject. The people of Kerala should be thankful to Law Department as it was dare enough to quote only Jamaican Law and not Taliban dictates.

Meanwhile, the controversial circular has been challenged by three different organizations in a Writ Petition before the Kerala High Court.

Section 10 of PCM Act stipulates that any person who performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage. Also as per section 11 of the Act, “Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees”.

The question remains if Marriage Registrars’ who registers marriage of a girl under the new circular be punishable under section 11 of the PCM Act!

 

Image from here.