HC grants protection to two underage Muslim girls who married against parents’ wishes - Hindustan Times
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HC grants protection to two underage Muslim girls who married against parents’ wishes

By, Chandigarh
Dec 16, 2023 09:14 AM IST

Applicable personal laws in Islam allow a Muslim girl to enter into a contract of marriage after attaining puberty whereas a set of common civil and criminal laws in India proscribes the marriage of girls under 18 and further makes sexual intercourse with minors a penal offence

The Punjab and Haryana high court has granted protection to two Muslim couples, where both the girls were minors but above the age of 15 years and had married against the wishes of their parents. The high court bench of justice Deepak Gupta, also dismissed petitions from the parents in both the cases and handed over custody to their husbands. In both the cases, the girls’ age was sixteen years and the grooms were aged 23 and 29 years.

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“Since the marriage of the petitioners is prima facie valid as per the Mohammedan Personal Law, petitioner (girl) …being above the age of 15 years i.e., age of puberty and petitioner (groom) also being of marriageable age, and they having performed Nikaah..,: the bench said dismissing plea from the father in one case, seeking her custody.

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Applicable personal laws in Islam allow a Muslim girl to enter into a contract of marriage after attaining puberty whereas a set of common civil and criminal laws in India proscribes the marriage of girls under 18 and further makes sexual intercourse with minors a penal offence. In January, the Supreme Court admitting an appeal by the National Commission for Protection for Child Rights (NCPCR) in the matter, had agreed to examine the child rights body’s legal argument that a personal law or a religious right cannot override the mandate of the criminal laws of the land that aim at protecting the girl child. The apex court had also restrained all courts in the country from treating as a precedent, the Punjab and Haryana high court judgment, which held that Muslim girls become legally competent to marry after attaining puberty at the age of 15 years.

In the two cases decided by high court, a Yamunanagar couple had approached court seeking protection as they had married against their parents’ wishes. Parents too had filed habeas corpus petition demanding that the girl be produced in court and her custody be given to them. They had also got an FIR registered for kidnap in Yamunanagar.

In the second case, the couple was from Nuh and girl initially had claimed her age as above 18 years. When father contested the same, she was sent to child protection home in Chandigarh. Later, a report from the police revealed that she was 16-year-old.But no malafide was alleged in changing the date of birth.

The court observed that the Prohibition of Child Marriage Act, 2006, makes it clear that for the purpose of child marriage means a person who has not completed the age of 21 years in case of male; and has not completed the age of 18 years in case of female. “At the same time, minor is stated to be person who is deemed to have not attained his majority under the Majority Act, 1875. Thus, the term ‘minor’ as adopted in Prohibition of Child Marriage Act, 2006 is controlled by the Majority Act. ….as per the provisions of Majority Act, though a person is stated to have attained the age of majority on completing the age of 18 years but this provision is not to affect the capacity of any person to act in the marriage or his capacity, who before Act came into force had attained majority under the law (personal laws) applicable to him,” the bench observed. Now, in both the cases court has directed the police to continue with the protection to both the girls.

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