On Monday (June 20), the Punjab and Haryana High Court ruled that a Muslim girl above the age of 16 years is competent to marry any person of her choice.

The matter was heard by a single-judge Bench of Justice Jasjit Singh Bedi. A Muslim couple from Pathankot, aged 16 and 21 years, approached the court to seek protection from their family members.

The duo informed the court that their marriage was solemnized on June 8 this year in accordance with Islamic rites and ceremonies. They claimed to have received threats from their family members, who disapprove of their marriage.

The counsel for the Muslim couple argued that under Muslim personal law, majority and puberty are considered the same. He added that it is presumed that a Muslim attains ‘majority’ at the age of 15 and contended that such an individual is free to marry anyone of his/her choice.

The petitioner couple had contended 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.

The Muslim couple alleged that despite requests to the Senior Superintendent of Police (Pathankot), they were not provided with any protection.

Observations made by the Punjab and Haryana High Court

The Court ruled that a Muslim marriage is governed by the Muslim personal law, which allows marriage above the age of 16 years (otherwise barred under The Prohibition of Child Marriage Act, 2006).

The Judge noted, “As per Article 195 from the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla, the girl being over 16 years of age is competent to enter into a contract of marriage with a person of her choice. The boy 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 Punjab and Haryana High Court also granted protection to the couple by directing the SSP Pathankot to arrange for proper security measures. “Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of their fundamental rights as envisaged in the Constitution of India,” it ruled.

The Juge further noted that the Court could shut its eyes to the apprehension of the petitioners about their safety.

Punjab & Haryana High Court allows minor Muslim girl to marry Hindu man 

In December last year, the Punjab and Haryana High Court ordered the police to provide protection to a 17-year-old Muslim girl who had married a Hindu boy against the wishes of her family and relatives.

The court, in its order, noted that being a Muslim girl, she was at liberty to marry anyone of her choice once she attained puberty, implying that the minimum age law for marriage does not apply to Muslims in the country. The court further added that the guardian had no right to interfere.

The 17-year-old Muslim girl had married a 33-year-old Hindu man at a Hindu temple as reported by Live Law. However, she has sought protection under the Muslim Personal Law Board. In the case of inter-religious marriages, if a person does not convert to the religion of the spouse, the same is registered under the Special Marriage Act. In this case, Muslim Law Board rules will not be applicable. Similarly, if the Muslim girl married as per Hindu rituals in a Hindu temple to a Hindu man and if she had reverted to Hinduism, then the same shall be governed under the Hindu Marriage Act, in which case, too, Muslim personal law would not be applicable.

Justice Harnaresh Singh Gill said, “The law 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.1 (girl), being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. Petitioner No. 2 (her partner) is stated to be about 33 years old. Thus, Petitioner No. 1 is of marriageable age as envisaged by Muslim Personal Law.”

He further observed, “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.”

The couple had approached the court to get protection

The petition was filed by one Nargis, who is 17-year-old and her 33-year-old Hindu Husband, in which they sought police protection as the family of the girl were not happy with the marriage.

The advocate representing the petitioner told the court that under the Muslim law, when a girl attains puberty, she is considered to be a major. Thus, keeping that presumption in mind, a person who belongs to Islam attains majority at the age of 15 years. The advocate further added that when a Muslim girl or a Muslim boy attains puberty, they have the right to marry the person of their choice and the guardian has no right to interfere in the matter.

He quoted Article 195 of the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ in which it was noted that “every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.”

Bill introduced to increase the marriageable age of girls irrespective of religion

It is noteworthy that recently Smriti Irani, Union Minister, Women and Child Development, introduced the Prohibition of Child Marriage (Amendment) Bill 2021. The bill sought to increase the marriageable age of girls to 21, equal to that of boys. Furthermore, while introducing the bill, the minister added that it would be applicable to every girl irrespective of religion.

References:

opindia.com