Despite SC's Caution, P&H High Court Relies On HC's 'Javed' Judgment To Allow Minor Muslim Girl To Live With Husband, Denies Custody To Father

The Punjab & Haryana High Court on Wednesday refused to grant custody of a minor Muslim daughter to her father, who married against her parents' wishes as it noted that her marriage was valid as per Mohammedan Personal Law.

Justice Deepak Gupta observed that, “Since the marriage of the petitioners was valid as per the Mohammedan Personal Law, petitioner No.2 (daughter) being above the age of 15 years i.e., age of puberty and petitioner No.1 (husband of daughter) also being of marriageable age, and they having performed Nikaah as per their wish, so the custody of petitioner No.2 is directed to be handed over to petitioner No.1. Respondent No.4- father of petitioner No.2 cannot claim the custody of petitioner No.2 and his wishes in this regard would be inconsequential.”

To buttress the opinion that a minor Muslim girl is competent to enter into a contract of marriage the person of her choice as per Muslim personal law, reliance was placed upon the High Court's decision in Gulam Deen & Anr. v. State of Punjab and Ors. [2022 LiveLaw (PH) 157] and also on Javed v. State of Haryana and Others [2022 LiveLaw (PH) 276].

It is pertinent to note that the Supreme Court in NCPCR v. Javed & Ors. had said that the judgment of in the case Javed (supra), which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law, should not be relied upon as a precedent in any other case.

A bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha passed the interim order while issuing notice in a special leave petition filed by the National Commission for the Protection of Child Rights challenging the judgment on the ground that it goes against the Protection of Children from Sexual Offences Act which prescribes 18 years as the age for sexual consent.

However, while issuing to the notice, the Supreme Court refused to stay the judgement stating that, "if the judgment is stayed, the girl might be restored to her parents against her wishes."

In the present case, the Court was seized of a protection petition filed by a Muslim couple who married against the wishes of their parents in August 2022 and they sought protection of their life and liberty at the hands of private respondents, including her father.

The man stated to be of 29 years and the girl submitted that she was over 18 years old, however as per the status report filed by the SP, she was 16 years old. Considering that the age of the girl is disputed, the Court had earlier directed her to stay at a Nariniketan in September 2022, and she has been residing there since then.

While the petition was pending, an FIR was lodged against the man under Sections 323 and 366A of the IPC. Subsequently, he was granted pre-arrest bail.

The petitioner's counsel sought the release of the girl from Nariniketan so that she could be reunited with her husband.

On the other hand, the father of the girl objected to the proposal, stating that she was a minor with a date of birth of May 21, 2007 and that the marriage between the petitioners was not legal. He also sought the custody of her daughter.

Considering the submissions, the Court noted that the age of the girl is a disputed question of fact and it did not intend to record any finding thereon, as it was not the appropriate forum to do so.

However, in deciding whether the petitioners deserve necessary protection regarding their life and liberty, and further, whether the custody of the girl should be handed over to her father, as requested by his counsel, or to her husband, as prayed by him, the Court assumed that the date of birth of the girl is May 21, 2007.

Adding that the girl is above 15 years of age, the Court noted that, "both the petitioners belong to Muslim religion and have performed marriage as per Muslim Rites and Customs."

The reliance was placed upon the High Court's decision in Yunus Khan v. State of Haryana [2014 (3) RCR (Criminal) 518] wherein a minor Muslim girl, who had attained the age of puberty, voluntarily married a Muslim body according to Muslim Rites against the wishes of her father. It was observed that as per Article 195 of the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla (10th Edition) of 1933, every Mohammedan of sound mind, having attained the age of puberty could enter into a contract of marriage.

The Court then referred to Article 27 of Muslim Law by Faiz Badruddin Tyabji, as per which with reference to the age of competence to marry, it is presumed in the absence of attainment of puberty that males attain puberty at the age of 15 years and females at the age of 09 years, it noted.

The Court further noted that that a Muslim girl above the age of 15 years is competent to enter into a contract of marriage with the person of her choice, reliance was placed upon cantena of cases including Gulam Deen (supra) and Javed (supra).

In light of the above legal position, Justice Gupta opined that since the marriage of the petitioners was valid according to the Mohammedan Personal Law, with the girl being above the age of 15 years (i.e., the age of puberty) and of marriageable age, and having performed Nikaah as per their wish, the custody of the girl is directed to be handed over to her husband.

Furthermore, the Court said that the father of the girl cannot claim the custody of his daughter and his wishes in this regard would be "inconsequential ."

Consequently, the Court ordered to release the girl from Nariniketan and directed that the girl's custody be handed over to her husband. It further directed the police to keep on providing necessary protection to the petitioners, as and when required, after assessing the threat perception to their life and liberty.

Appearances:

Advocates for the petitioners: Munfaid Khan, Khalid Tauru -

Chetan Sharma, DAG, Haryana.

B.S. Tewatia, Advocate for respondent No.4.

Case Title: Zakir Hussain and Another v. State of Haryana and Others

Citation: 2023 LiveLaw (PH) 273

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