Muslim Woman Can Marry Person Of Her Choice After Attaining 15 Yrs Of Age: Jharkhand High Court Reiterates

While quashing a pending criminal proceeding against a man for marrying 15 years-old-girl, a Single Bench of Justice Sanjay Kumar Dwivedi held,

"…it is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', the opposite party no.2 is approximately 15 years of age was competent to enter into a contract of marriage with a person of her choice."

Facts & Contentions:

Opposite party no. 3 is the father of girl (opposite party no. 2), who under misconception had lodged an FIR alleging that his daughter is missing. Accordingly, a case under Sections 366A and 120B, IPC was initiated against the accused-petitioner.

However, subsequently the counsel appearing for the girl submitted that marriage has been solemnized and both the families have accepted the marriage and in that view of the matter, entire criminal proceeding may be quashed. Similarly, counsel for the father of the girl submitted that the counter affidavit has been filed on behalf of the father, wherein, it has been disclosed that his daughter has found a right match by the grace of Allah and there is no other perfect match than the petitioner.

Counsel for the petitioner contended that puberty and majority are one and the same as per the Muslim law and that there is a presumption that a person attains majority at the age of 15 years. It was further contented that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone as per his/her choice and the guardian has no right to interfere.

Court's Observations:

The Court made a reference to Yunus Khan v. State of Haryana & Ors., 2014 (3) RCR (Criminal) 518, wherein it was held that the marriage of a Muslim girl is governed by personal law. Therein the Court had also cited Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshaw Fardunji Mulla', which reads:

"195. Capacity for marriage - (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.

Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years."

Accordingly, the Court observed that the girl in the instant case was approximately 15 years of age and thus, was competent to enter into a contract of marriage with a person of her choice. The petitioner was stated to be more than 24 years of age at the relevant time. Therefore, it held, both the petitioner and the girl attained marriageable age as defined by Muslim Personal Law.

In view of the above facts and considering the submissions of the counsel appearing for the parties as well as the documents, the Court deemed it a fit case for quashing the pending criminal proceedings and ordered accordingly.

Case Title: Md. Sonu @ Sonu v. The State of Jharkhand & Ors.

Case No.: Cr.M.P. No. 1171 of 2022

Order Dated: 25^th November 2022

Coram: Sanjay Kumar Dwivedi, J.

Counsel for the Petitioner: Mr. Anuj Kumar Trivedi, Mr. Prem Mardi & Mr. Abdullah Umar, Advocates

Counsel for the Respondents: Ms. Saman Ahmad & Mr. Zaid Imam, Advocates

Citation: 2022 LiveLaw (Jha) 94