New Delhi: When there is a conflict between the Prohibition of Child Marriage Act and the Mohammedan Law that allows a Muslim girl to marry on attaining puberty at the age of 15, which will hold the field? The Supreme Court said on Monday that it would examine the matter. The top court, in its 2018 judgement in the Hadiya Akhila and Safin Jahan case, had recognised that attaining puberty is a condition for a valid Muslim marriage.
In India, the legal age of marriage is 18 years for girls and 21 years for boys, both under the Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006. The legal question was raised by a girl who had married at the age of 16 with a Muslim boy but the Allahabad High Court had refused to quash the FIR lodged against him for alleged kidnapping and sent the girl to a shelter home, while terming the marriage as invalid on the ground she was a minor.
A bench of Justices Ajay Rastogi and Bela M Trivedi was told by advocate Dushyant Parashar, appearing for the girl, that she has now become a major, has been freed from the shelter home and is staying with the boy. The bench asked Parashar to file an affidavit on behalf of the girl and listed the matter for further hearing after two weeks.
During the hearing, Parashar said this case involves an important question of law that in case of conflict between personal law which allows a Muslim girl to marry a boy of her choice on attaining puberty that is age of 15 years and an act of Parliament like the Prohibition of Child Marriage Act 2006, the Indian Majority Act, 1875, which law will hold the field in case where personal religious rights are involved.
Advocate Anandita Pujari, appearing for an intervenor, said that similar question of law is pending before the chief justice’s court. The bench said it is leaving the question of law open and will deal with it. Parashar said this legal question emanates from the case and he would like to assist the court on the issue after which the court may render its verdict on it. The bench said it will look into all the aspects after it peruses the affidavit filed by the girl.
On September 10, 2019, the top court has agreed to examine the plea of the Muslim girl, who was ordered to stay in a shelter home for women in Uttar Pradesh, after her marriage was found to be void by the Allahabad High Court. The apex court was hearing an appeal filed by the girl, who was then 16-year-old as per a medical report, against the high court’s July 2019 order which dismissed her petition against a trial court directive sending her to a shelter home at Ayodhya.
The high court had dismissed her plea against the trial court’s order observing that since she was a ‘minor’, her case would be dealt with in accordance with the Juvenile Justice (Care and Protection) Act, 2015 and as she did not want to join her parents, the order sending her to the shelter home was correct. The girl, in her plea in the top court, has said that as per the Mohammedan Law, once a girl attains the age of puberty, that is 15 years, she is independent to take decisions for her life and is competent to marry any one of her choice.
The top court had then agreed to examine her plea and issued a notice to the Uttar Pradesh government seeking its response. The girl, has contended that the high court failed to appreciate the fact that her ‘nikah’ is in accordance with the Mohammedan Law. The plea, which said that her right to life and liberty may be protected, contended that she is in love with the man and they performed ‘nikah’ in accordance with the Mohammedan Law in June, 2019.
Her father had lodged a police complaint alleging that his daughter has been kidnapped by the man and his associates. Thereafter, the girl recorded her statement before a magistrate in which she said that she had married the man out of her free will and wanted to stay with him. The trial court had directed that she be sent to the child welfare committee for safe custody and protection until she attains the age of 18. Referring to an earlier 2018 apex court judgement, the plea has said the girl may be permitted to lead conjugal life with her husband.
The plea said that the ‘high court ought to have appreciated the statement of the girl made under section 164 CrPC, wherein the girl has explicitly expressed her desire to stay with her husband and further has explicitly stated that she married out of her free will and none of the family member of her husband has enticed her’. It said that the girl should be freed from the shelter home during the pendency of the appeal before the top court.
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