17-Yr-Old Muslim Girl Marries 36-Yr-Old Muslim Man- "Both Are Of Marriageable Age Under Muslim Personal Law": P&H High Court Grants Them Protection

The Bench of Justice Alka Sarin was hearing a protection plea filed by Muslim Husband-Wife (Petitioners) who solemnized their marriage on 21^st January 2021 as per Muslim rites and ceremonies.

While the date of birth of petitioner No.1 (Husband) is 01^st April 1984, the DOB of petitioner No.2 (Wife) is 10^th January 2004.

Arguments put forth

The counsel for the petitioners cited the rulings of the Punjab & Haryana High Court to contend that in Muslim law puberty and majority are one and the same 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 any one he or she likes and the guardian has no right to interfere.

It was also argued that under Muslim law, Puberty and Majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years

It was also stated that the life and liberty of the petitioners is in grave danger at the hands of respondent Nos.4 to 14 and they submitted a representation to the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2), however, no action was taken thereon.

Lastly, it was prayed that directions be issued for deciding the said representation in a time-bound manner in accordance with law.

Court's observations

The Court took note of the judgements cited on behalf of the petitioners and also the fact that the girl in the instant case i.e., petitioner No.2 is aged more than 17 years.

The Court also observed that in the case of Yunus Khan vs. State of Haryana & Ors.' [2014(3) RCR (Criminal) 518, wherein it was noted that the marriage of a Muslim girl is governed by the personal law of the Muslims.

Referring to Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', the Court held,

"The petitioner No.2 being over 17 years of age was competent to enter into a contract of marriage with a person of her choice."

It may be noted that as per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage and Puberty is presumed, in the absence of evidence, on completion of the age of fifteen year.

The Court further noted,

"The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India."

Thus, in view of the above discussion, the petition was disposed of with a direction to the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2) to decide the representation of the petitioners dated 21.01.2021 and take necessary action as per law.

It may be noted that in India, the legal age of marriage is 18 years for girls and 21 years for boys.

This is governed by the Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006.

However, under Muslim law, marriage or Nikah is a contract. The Muslim law recognize- the right of adults to marry by their own free will. The conditions for a valid Muslim marriage are:

• Both the individuals must profess Islam;
• Both should be of the age of puberty;
• There has to be an offer and acceptance and two witnesses must be present;
• Dower and Mehar; and
• Absence of a prohibited degree of relationship.

It is equally important to note that in the Hadiya Case (Shafin Jahan v. Asokan K.M. and ors.), the Supreme Court had observed that the Legitimacy Of an adult woman's choice of marriage can't be questioned.

In the year 2019, the Apex Court had agreed to examine the question as to whether a muslim minor girl who attained puberty be allowed to live with a person of her choice.

Case title - Shoukat Hussian and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)]

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