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Wednesday, November 29, 2023

A minor Muslim girl can marry by law on attaining puberty: Punjab and Haryana High Court

The Punjab and Haryana High Court has passed an order stating that a minor Muslim girl who is less than 18 years of age and has attained puberty is free to marry anyone as per the Muslim Personal Law.

The High Court before taking the decision relied on literature of Muslims marriages and judgements of various courts. Article 195 from the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla refers that a Muslim girl on attaining the age of puberty is competent to enter a contract of marriage with a person of her choice.

The Article from the said book states, “Every Mohomedan (Muslim) of sound mind, who has attained puberty, may enter into a contract of marriage. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. A marriage of a Mohomedan who is (of) sound mind and has attained puberty is void if it is brought about without consent.”

According to the book,”Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”

The order was passed by Justice Alka Sarin while hearing the petition of a Muslim couple from Punjab. The 36-year-old man and a 17-year-old girl announced their marriage as per Muslim rites and ceremonies on January 21, 2021. This was their first marriage. Their family members were opposed to the marriage.

The petitioners asserted that, “In Muslim law, puberty and majority are one and the same thing and that there is a presumption that a person attains majority at the age of 15 years”. The petitioners further argued that “a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere”.

They complained that their life and liberty were in danger due to their relatives, and requested the Mohali SSP for protection.

After the hearing, Justice Sarin said that the Muslim girl is governed by Muslim Personal Law. Even though the petitioners have married against the wishes of their family members, they cannot be deprived of the fundamental rights provided by the Constitution. The girl is over 17 years of age and competent to enter into a contract of marriage with a person of her choice as both the petitioners are of marriageable age as per the Muslim Personal Law.

The court also directed Mohali SSP to take necessary action as per law regarding protection to their life and liberty.

Such cases highlight the urgent need for reform of Muslim personal law, and more than introduction of UCC (Uniform Civil Code), the Muslim Personal law needs to be reformed to bring it in line with what is applicable to other communities where minimum marriageable age is 18 years. It is hard to understand how a 15-year-old can be competent to make such an important decision like marriage, when at that age one doesn’t have right to vote or drive!

Moreover, it is strange to witness our judiciary, whose eminent representatives like Justice DY Chandrachud claim that a judge’s role is like ‘self-expression to transform and create a just society’ and that ‘religious custom is amenable to Constitutional control’, become so diffident when a matter involving Muslims comes to court.

In Sabarimala case, the judiciary claimed a ‘deity has no Constitutional rights’ and overturned an ancient tradition (not being able to visit one single temple between the age of 10-50 years) which was not really impacting women’s personal lives, but here where a minor girl’s entire life is at stake, courts are happy to rely on a medieval code of law?

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