Prohibition Of Child Marriage Act Supersedes Muslim Personal Law : Kerala High Court

Justice P. V. Kunhikrishnan stated that a person's primary status as a citizen of the country takes precedence over religion. The Court stated that citizenship is primary, and religion is secondary. The Court thus noted all citizens, regardless of whether they are Hindu, Muslim, Christian, Parsi, or of any other religion, are bound by the Act.

“….Every Indian is a citizen of the country first and thereafter only he becomes a member of the religion. When the Act 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion.”

In this case, the petitioners had approached the Court to quash proceedings against them for allegedly committing the offence of child marriage punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act.

The complaint concerns a child marriage allegedly held on December 30, 2012 in Vadakkancherry, Palakkad district, following Islamic rites. The 1^st accused is the father who married off his minor daughter to the 2^nd accused. The 3^rd and 4^th accused are the President and Secretary of the Islam Juma Masjid Mahal Committee, and the fifth accused was a witness to the marriage.

The petitioners argued that under Islamic law, a Muslim girl has the 'Khiyar-ul-bulugh' or 'Option of Puberty,' granting her the right to marry upon reaching puberty, typically at 15 years old. They claimed that the marriage of a minor girl is not considered void, it is voidable at her discretion once she attains puberty. It is stated that Muslim personal law prevails over the Prohibition of Child Marriage Act.

The Court discussed the objective and provisions of the Prohibition of Child Marriage Act in detail. It stated that the Act is applicable to all citizens of India without and beyond India as per Section 1(2) of the Act. The Court stated that this means that Act has extra territorial jurisdiction and is applicable to Indian citizens living abroad, regardless of their location. The Act is also applicable to all citizens irrespective of their religion.

The Court noted that every citizen, non-governmental organization etc. must inform the Child Marriage Prohibition Officer or Court about any information regarding child marriage. It noted that Judicial Magistrates of the First Class or Metropolitan Magistrates can issue injunctions to prevent child marriages and, under Section 13 of the Act, have suo motu powers to act on such complaints/information.

The Court urged Magistrates to be alert about their powers to take suo moto cognizance on being informed about child marriages. It said, “Therefore, I am of the considered opinion that, all the Magistrate in the State should be vigilant to take cognizance, if any reliable report or information is received about any child marriage.”

The Court further stated that Print and Visual Media should also spread awareness to prohibit child marriages in the State. The Court said, “The visual media should also broadcast documentaries and shows on child marriage, creating public service announcements and awareness campaigns, depicting the negative consequences of child marriage in movies and TV shows, interviewing experts, survivors and activists. The print and visual media should be a platform for voices against child marriage, encouraging public discourse and debate, supporting and amplifying initiatives working towards eradicating child marriage, holding those in power accountable for enforcing laws and policies, educating the public about the physical, emotional and psychological harm caused by child marriage etc.”

The Court also clarified that the Prohibition of Child Marriage Act that came into effect in 2007 would override the provisions of the Majority Act of 1875. This is because Section 2 of the Majority Act stipulates that the Act does not affect a person's capacity to act in matters such as marriage, dower, divorce, adoption, and it also specifies that it does not apply to the religion or religious rites of Indian citizens.

The Court went on to state that it is in disagreement with the decisions of the Patna High Court in Md. Idris v. State of Bihar and Others (1980), Punjab and Haryana High Court in Kammu v. State of Haryana (2010), Delhi High Court in Tahra Begum v. State Of Delhi & Ors. (2012) which held that a Muslim girl can marry upon reaching puberty and that such marriages are not considered void.

Highlighting the evils of child marriage, the Court stated that such marriage infringes upon basic human rights and leads to the exploitation of children. It stated that early marriage and pregnancy create health problems for victims of child marriage. The Court noted that child marriages force girls to drop out of school, perpetuate poverty and limit their economic opportunities. It stated that child brides are vulnerable to domestic violence which causes emotional and psychological trauma.

The Court concluded by stating that every citizen has the duty to prevent child marriages. The Court said, “Let the children study according to their wishes. Let them travel, let them enjoy life and when they attained maturity, let them decide about their marriage. In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, of course with the blessings of their parents.”

In the present case, the Court rejected the contentions of the petitioner that their minor daughter can marry upon attaining puberty since she is a Muslim. The Court also stated that it could not reject the complaint filed by a Muslim man against the petitioners merely because there was a delay in filing it.

Accordingly, the Court dismissed the case and stated that the petitioners had not made a case to quash the proceedings.

Related - Don't Treat P&H HC Judgment Allowing Minor Muslim Girl To Marry As Precedent, Says Supreme Court

Can Minor Muslim Girl Marry On Attaining Puberty? Supreme Court To Examine Correctness Of HC Judgment, Issues Notice On NCPCR Plea

Counsel for Petitioners: Advocate R.O.Muhamed Shemeem, Naseeha Beegum P.S

Counsel for Respondents: Senior Public Prosecutor Renjith T R, Amicus Curiae K M Firoz

Citation: 2024 LiveLaw (Ker) 481

Case Title: Moidutty Musliyar v Sub Inspector Vadakkencherry Police Station

Case Number: Crl.M.C.No.2515 of 2016

Click here to read/download Judgment