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

Rintu Mariam Biju

17 Oct 2022 12:40 PM IST

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

    The Supreme Court on Monday issued notice on the petition filed by the National Commission for the Protection of Child Rights (NCPCR) challenging a recent judgement of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage.A bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka appointed Senior Advocate R Rajasekhar Rao as an...

    The Supreme Court on Monday issued notice on the petition filed by the National Commission for the Protection of Child Rights (NCPCR) challenging a recent judgement of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage.

    A bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka appointed Senior Advocate R Rajasekhar Rao as an amicus curiae for assistance on the issue. 

    Solicitor General of India Tushar Mehta, appearing for the NCPCR, requested for stay of the observations in the judgment. "Please stay these two paragraphs of the impugned order", the SG said. SG Tushar Mehta said that it is a "serious issue" in view of the impact on the ban of child marriages and also the POCSO Act.

    The bench asked will any court follow the judgment when the Supreme Court is considering the issue.

    "How will anybody follow this? We are saying we will examine the issue. Let us hear the amicus and we will hear the matter ", the bench said while posting the matter to November 7.

    The High Court had granted protection to a Muslim couple while noting that girl, who has attained puberty is of Marriageable Age under Muslim Personal Law. Relying on precedents, the High Court observed that the marriage of a Muslim girl is governed by Muslim Personal Law.

    "The law, as laid down in various judgments cited above, 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', petitioner No.2 being over 16 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law."
    The High Court had 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 years.
    According to NCPCR's petition, the High Court's ruling is essentially allowing a child marriage and this violative of the Prohibition of Child Marriage Act, 2006. The provisions of the Act are secular and applicable to all religions, petition says.
    This apart, the judgement is against the spirit of Prevention of Children against sexual offences, 2012 (POCSO), which is also a secular law. As per the legislation, no child below the age of 18 years can give a valid consent.
    Child protection laws cannot be seen in isolation with Article 21 of the Constitution guaranteeing the right to life and liberty, the petition further argued.

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    Muslim Personal LawPOCSO
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