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Special Law over Personal Laws

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 Personal Law.

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 contract.

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 disability.
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 others1 (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 2014 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 in 2013).

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.

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