Recently I have come across some of the judgements of different High Courts
of the Country wherein different views have been expressed by judges in cases
where the point of consideration was "Whether the marriage of a Muslim Girl of
15 years of age performed by following personal law will be a Valid marriage
even if it violates Prohibition of Child Marriage Act, 2006 and whether the
consummation of such marriage will attract provisions of Protection of Children
from sexual offences Act, 2012 (POCSO) or not?".
To delve deep into this, we need to understand about how marriages are governed
under Muslim Law and what are essential conditions for Marriage under Muslim
Marriage under Mohammedan Law
Marriage in Muslims are still governed by the personal laws and Marriage under
Muslim law states that Marriage is a social need because through Marriage,
families are established and the families are fundamental entity of our society.
Marriage under Muslim law is also a civil contract, a valid contract is
necessary for Muslim marriage.
According to section 2 of the Muslim Women (Protection of Rights on Divorce) Act
defines marriage or Nikah among Muslims as solemn pact between a man and a women
soliciting each other's life companionship, which in law takes the form of
Now we need to look for the essentials conditions for Marriage under
Mohammedan Law, which are as follows:
- Proposal and Acceptance: This proposal and acceptance should
happen in the same meeting
- Competency of Parties: Parties to the contract/marriage must be
Major, of sound mind and Muslims. Now Majority under Mohammedan Law is
Puberty, and the age of puberty under Islam for boys is 12 years and for
girls it is 9 years but it has been fixed by the Privy Council (Muhammad
Ibrahim Versus Aktia Begum) at 15 years in the year 1916.
- All the essentials of a Valid Contract must be followed such as free
consent, consideration i.e. Mahr, sound mind and free from any legal
Now Marriages under Mohammedan law can take place if the abovementioned
essential conditions have been followed.
Legislation enacted by the Parliament for Children Welfare
Now the Parliament has enacted certain welfare legislation for protection of
children from exploitation and protect them from any kind of harm being done to
them. The Parliament has enacted the Prohibition of Child Marriage Act, 2006
with an object to prohibit solemnization of child marriage. This Act prescribes
the age for marriage i.e., 21 years for boys and 18 years for girls and empowers
to prohibit child marriages. That the parliament has also enacted Protection of
Children from sexual offences Act, 2012 for the protection of children from
sexual offences. The intent of the legislature is to protect children from all
types of sexual abuse.
Differing Views of High Courts across India
Recently in October 2022 Punjab and Haryana High Court in Javed Versus State
of Haryana and others
1 (2022) Live Law (PH) 276 has held that Muslim female
aged 15 years and above can marry a person of her choice on her willingness and
consent and such a marriage would not be void in terms of section 12 of the
Prohibition of Child Marriage act, 2006. The court passed this order relying on
a judgement passed in Yunus Khan Versus State of Haryana and others
SCC online P&H 3588.
This judgement had observed that the marriage of a Muslim girl continues to be
governed by the personal laws of Muslims and has relied upon the Principles of
Mohammedan law by Sir Dinshah Fardunji Mulla, more so article 195 thereof and
has held that age of puberty of a Muslim female is 15 years and, on her
willingness, and consent, after attaining puberty can marry a person of her
choice and such a marriage would not be void in terms of section 12 of the
prohibition of child marriage act, 2006.
A judgement have been passed by Delhi High Court in Fija and another versus
State Govt. of NCT of Delhi and ors. 2022 SCC online Del 2527 which held that
POCSO act will not apply in case of physical relationship between Muslim husband
and wife even if wife is below the age of 18 years and their marriage has taken
place in accordance with Mohammedan law. Now the POCSO act was passed in the
year 2012 with an objective to protect children from any types of sexual abuse
and to provide for establishment of special courts for trials of such offence.
Recently Kerela High Court in Khaledur Rahman Versus State of Kerela and anr
2022 Live Law (Ker) 60 has held that Muslim Marriages are not excluded from the
POCSO Act, physical relationship with minor is an offence irrespective of
validity of marriage. It was also observed in the said judgement that the
legislative intent reflected through the POCSO act is to prohibit physical
relationship with a child, even under the cover of marriage.
Child marriage has been regarded as human rights violation. It was also observed
that when the provisions of a statute are repugnant to, customary law or
personal law, in the absence of any specific exclusion of the said customary or
personal law from the statutory provisions, the statute will prevail and the
personal law or the customary law shall stand abrogated to the extent of
inconsistency i.e. a statute will prevail over personal law.
That the section 42A of the act, 2012 intends to override any such law and
states that in case of any inconsistencies with any other law the provisions of
POCSO act will have overriding effect on any such contrary provisions. The judge
has held that he is not in consonance with view expresses in Javed Versus
State of Haryana and others
(2022) Live Law (PH) 276 and Fija and another
versus State Govt. of NCT
2022 SCC Online Del 2527. He has also held that he
is unable to agree that an offence under POCSO act will not get attracted
against a Muslim Marrying a minor.
A similar judgement has been passed by the Karnataka High Court in Alim Pasha
Versus State of Karnataka (Crl RP No. 7295/2022), which has held that POCSO act
will prevail over the personal law. Marriage between Muslims under personal law
is not excluded from the sweep of POCSO act. If one of the parties to the
marriage is minor, irrespective of validity or otherwise of the marriage
offences under POCSO act will apply.
Present Scenario and My Views
National Commission for Protection of Child Rights has filed an application
before the Supreme Court against the judgement of Punjab and Haryana High court
in Javed Versus State of Haryana and others (2022) Live Law (PH) 276 and supreme
court has agreed to considered the judgment of the Punjab and Haryana High court
and also directed that the judgment of the High Court should be relied as a
precedent in other cases.
That the matter is pending before the Supreme court on this point but in my
opinion, going by our history we can find traces of Child Marriages in India and
child marriage has been present in every religion and with progression in
society It was seen that Child marriages are a bad since children without
understanding anything about marriage were being married off to each other in
name of custom and marriage is a very big responsibility and children who are
supposed to study, play, make friends were being married off, girls were being
married to person twice their age and to stop such practice and prevent the
exploitation of children.
Parliament enacted Prohibition of Child Marriage Act, 2006 which in my view is a
secular legislation and no one should claim any immunity from the application of
this act on ground of them belonging to particular community (Karnataka High
Court in case of Seema Begaum Versus State of Karnataka
That child marriage negates the overall development of a children, it influences
their right to education, health. Marriage of a such girl or boy who has not
attained a certain level of understanding is harmful for them in long run,
marriage is a very big responsibility and the person who should be playing,
studying instead they were being married in name of customs just to avoid
responsibilities of taking care of that children. Our society is a progressive
one and children are the future of our country, their minds should be focused on
education, sports and trying to learn things, understand their surroundings.
Now coming back to the question of whether a marriage under Mohammedan Personal
law which says that Marriage can happen after attaining the age of puberty which
is 15 years of age is illegal or not. In my opinion marriage of under personal
law on turning 15 years of age should be illegal and void since Puberty only
signifies changes in child relating to their physical and hormonal changes that
starts the process of transition from childhood to adulthood and the said
marriage if allowed, is also against the spirit for which POCSO act is enacted.
If the said marriage is allowed following personal law, then physical
relationship with a minor will directly attract the relevant sections of POCSO
act, which is a special statue and which will prevail over a personal law. Here
again I would like to point out that POCSO Act is also a secular act like
Prohibition of Child Marriage act and this should apply to every citizen of
India irrespective of them belonging to any community and these acts were
created for the welfare of children and we as society should look after our
children, stop their exploitation and provide them with opportunities so that
they could understand things and take their decisions after due consideration.
In my view marriage in Muslims are also contract and one of the essentials of
the contract is that contract should be done between persons who are major i.e.
18 or above years of age and Puberty cannot be the criteria to judge the
majority and I do agree with judgement and views expressed by the Kerela and
Karnataka High Court in regards to application of POCSO act in cases of marriage
of minor done by following Mohammedan personal law and both the Prohibition of
Child Marriage act and POCSO act should apply in these scenarios and they will
prevail over Personal or customary laws.