'Is It Not Time For UCC?': Delhi High Court Flags Conflicts In Islamic, Indian Laws On Criminality Of Child Marriages

“Is it not the time to move towards a Uniform Civil Code (UCC)?,” the Delhi High Court has said, while flagging the conflicts in Islamic and Indian laws on the legality and criminality of child marriages. Calling it a “recurring conflict”, Justice Arun Monga said that while under the Islamic law, a minor girl attaining puberty may lawfully marry, but under Indian criminal law, such a marriage renders the husband an offender under the BNS and POCSO Act or both. “This raises a stark dilemma viz. should society be criminalized for adhering to long-standing personal laws ? Is it not the time to move towards a Uniform Civil Code (UCC), ensuring a single framework where personal or customary law does not override national legislation?,” the Court said. It added that the conflict warrants “legislative clarity” and that the Legislature must decide whether to continue criminalizing entire communities or to promote peace and harmony through legal certainty.“No doubt, opponents of UCC caution that uniformity risks eroding religious freedom guaranteed to every citizen as a fundamental right in the Constitution of India. However, such freedom cannot extend to practices that expose individuals to criminal liability. A pragmatic middle path could be to standardize core protections, such as prohibiting child marriages across board with penal consequences as they directly conflict with both BNS and POCSO,” the Court said. “At the same time, less contentious personal matters may be allowed to evolve gradually within respective communities. The decision is best left to the wisdom of the law makers of the country. But, lasting solution must soon come from the Legislature/Parliament,” it added.Justice Monga was dealing with a plea filed by a 24 year old man, accused of marriage a minor. While the girl claimed to be 20 years old, the prosecution said that she was a minor aged 15 to 16 years. The girl became a mother at the age of 14 years, after she was sexually assaulted by her stepfather. Later, the child was given in adoption. However, the accused later married her. The marriage happened under Islamic law and the couple was blessed with a child. The stepfather is in judicial custody while facing trial in a criminal case. However, he filed the case against the husband shortly after the marriage for raping her daughter. The accused husband had been incarcerated for over 11 months. Granting relief to the accused, the Court noted that Under Muslim Personal Law, puberty- presumed at 15 years, unless proved otherwise, is the marriageable age for girls.It said that various precedents have upheld Islamic marriages of girls above 15 years, and under 18 years, as valid under Shariat. However, in cases where puberty or 15 years not established, marriages have been declared void. The Court said that whether it is a case of precocious puberty or genuinely prosecutrix was of age of consent or it is a case of valid Islamic marriage, cannot possibly be adjudicated in bail proceedings. It added that the law is clear that Muslim personal law cannot override POCSO Act or BNS.The Court observed that de hors the controversy of whether it was a valid marriage or not, it was a fit case for granting bail to the accused husband. Justice Monga observed that even for the purposes of the bail, if it is assumed that the marriage between the accused husband and the prosecutrix was not valid, it cannot be denied that their relationship was not only consensual but also akin to that of live-in partners, and that both of them were fully entitled to enter into such a relationship, being 24 and 20 years old, as claimed by them.The Court added that it is debatable that both of them being Muslims, they would be fully within their rights to practice their religion, which is a fundamental right under the Constitution of India, and since their religion and custom, as per the prevalent Islamic law, permits marriage, the same would be valid in their personal law, though it may be in contravention of the age of consent prescribed under the law enacted by the Legislature.Allowing the plea, the court prima facie said thay the accused husband was not even furnished with the written grounds either at the time of arrest or immediately thereafter, which was in violation of Article 22(1) of the Constitution and Section 47 of BNSS.“This Court once again places on record it's deep appreciation for the valuable assistance rendered by Ms. Nandita Rao, Senior Advocate (Amicus Curiae) with Mr.Amit Peswani, Advocate; as also by Professor Faizan Mustafa, Vice Chancellor, Chanakya National Law University (Expert Islamic Law); Dr.Mohd. Khalid Khan, Dept. Of Islami Studies, Jamia Milia Islamia, New Delhi and Mr. Nehal Ahmed, Assistant Professor of Law, Woxsen University Hyderabad, experts on the Islamic Law, in striving to adjudicate the controversy in hand,” the Court said.Title: HAMID RAZA v. STATE OF NCT OF DELHICitation: 2025 LiveLaw (Del) 1189Click here to read order

'Is It Not Time For UCC?': Delhi High Court Flags Conflicts In Islamic, Indian Laws On Criminality Of Child Marriages

Nupur Thapliyal

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