SC issues notice on whether Muslim girl can marry a person of her choice after attaining puberty
Jan 13, 2023
New Delhi [India], January 13 : The Supreme Court on Friday issued notice on the plea of NCPCR challenging an order of the Punjab and Haryana High Court which said a Muslim girl after attaining puberty is competent to enter into a contract of marriage with a person of her choice under the Muslim Personal Law.
A bench of Chief Justice DY Chandrachud and Justice PS Narasimha issued notices to the respondents in the case on the plea of the National Commission For Protection of Child Rights (NCPCR).
The top court directed that the order of the High Court, which held that a Muslim girl aged 15 years can enter into legal and valid marriage as per personal law, should not be relied on as a precedent in any other case.
It further appointed senior advocate Rajshekhar Rao as amicus curiae in the case to assist the court.
The bench in its order stated, "We are inclined to entertain these writ petitions. Issue notice. Pending further orders, impugned judgment (of High Court) shall not be relied upon as precedent."
At the outset, Solicitor General Tushar Mehta contended that Muslim girls who are 14, 15, and 16 years old are getting married.
He said, "Can there be a defence of personal law? Can you plead custom or personal law as a defence against a criminal offence?"
Earlier, the National Commission for Women (NCW) had approached the top court to make the minimum age of marriage for Muslim girls the same as that of persons belonging to other religions.
The minimum age for marriage in India is currently 18 for women and 21 for men. However, the minimum marriage age for Muslim women is when they attain puberty and 15 years is presumed to be that age.
The NCW said that allowing Muslims to marry at the age of puberty (around 15) is arbitrary, irrational, discriminatory, and violative of penal laws.
The plea said even the Protection of Children from Sexual Offences Act (POCSO) does not provide for those under 18 to consent to sex.
It said the PIL was filed for enforcement of the fundamental rights of minor Muslim women to bring Islamic personal law in consonance with the penal laws applicable to other religions.
The High Court in June in its order had cited the provisions of the Muslim Personal Law on marriage to rule that a 15-year-old Muslim girl was competent to enter into a contract of marriage with a person of her choice.
The NCPCR sought to ensure the proper implementation of statutory laws specifically in place to protect children below the age of 18 years.
The Commission highlighted the provisions of the Prohibition of Child Marriage Act (PCMA) 2006 and the Protection of Children from Sexual Offences Act (POCSO) to put forth its reasons for challenging the High Court ruling.
NCPCR said the order is violative of PCMA which, the petition said, is a secular law that is applicable to all.
It further said that the provisions of POCSO say no child below the age of 18 years can give valid consent.
