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17 Yr Old Muslim Girl Competent To Enter Into A Contract Of Marriage With Person Of Her Choice: P&H High Court

Sparsh Upadhyay
26 Dec 2021 3:55 AM GMT
17 Yr Old Muslim Girl Competent To Enter Into A Contract Of Marriage With Person Of Her Choice: P&H High Court
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The Punjab And Haryana High Court on Wednesday granted protection to a Muslim Girl (17 Year Old) who married a Hindu Man (33 Year Old) while noting that she is of Marriageable Age under Muslim Personal Law. Essentially, the Bench of Justice Harnaresh Singh Gill was hearing a protection plea filed by the couple(a Hindu man and a Muslim woman) who solemnized their marriage in a Hindu temple...

The Punjab And Haryana High Court on Wednesday granted protection to a Muslim Girl (17 Year Old) who married a Hindu Man (33 Year Old) while noting that she is of Marriageable Age under Muslim Personal Law.

Essentially, the Bench of Justice Harnaresh Singh Gill was hearing a protection plea filed by the couple(a Hindu man and a Muslim woman) who solemnized their marriage in a Hindu temple and thereafter, sought the protection of their life and liberty.

Case in brief

One Nargis (17 year old) and her husband (33-year-old) sought protection from the High Court submitting 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

It was their contention that as per the Muslim law, puberty and majority are one and the same, and there is a presumption that a person attains majority at the age of 15 years and since, in the instant case both, the boy and girl are above the age of 15, thus, they have validly married each other and are seeking protection.

The counsel for the petitioners cited various rulings of the Punjab & Haryana High Court in this regard including the ruling in the case of Shoukat Hussian and another v. State of Punjab and others and Yunus Khan vs. State of Haryana & Ors.' [2014(3) RCR (Criminal) 518.

Court's observations

At the outset, the Court observed that in the case of Yunus Khan case, it was noted by the Court that the marriage of a Muslim girl is governed by the personal law of the Muslims.

"In view of the decisions cited above, the law is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', petitioner No.1 being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. Petitioner No.2 is stated to be about 33 years of age. Thus, petitioner No.1 is of marriageable age as envisaged by Muslim Personal Law," the Court further observed.

It may be noted that as per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage and Puberty is presumed, in the absence of evidence, on completion of the age of fifteen year.

In this regard, the Court further noted,

"The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India."

Thus, in view of the above discussion, the petition was disposed of with a direction to the respondent No.2- Senior Superintendent of Police, Malerkotla, to decide the representation of the petitioners and take the necessary action as per law.

In India, the legal age of marriage is 18 years for girls and 21 years for boys. This is governed by the Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006.

However, under Muslim law, marriage or Nikah is a contract. The Muslim law recognizes- the right of adults to marry by their own free will. The conditions for a valid Muslim marriage are:

  • Both the individuals must profess Islam;
  • Both should be of the age of puberty;
  • There has to be an offer and acceptance and two witnesses must be present;
  • Dower and Mehar; and
  • Absence of a prohibited degree of relationship.

It is equally important to note that in the Hadiya Case (Shafin Jahan v. Asokan K.M. and ors.), the Supreme Court had observed that the Legitimacy Of an adult woman's choice of marriage can't be questioned.

On December 15, 2021, the Union Cabinet cleared the proposal to raise the legal age of marriage for women from 18 to 21 years. This move would bring the legal age of marriage for women at par with men which is 21 years.

The Union Minister for Women and Child Development Smriti Irani introduced in the Lok Sabha the "Prohibition of Child Marriage (Amendment) Bill, 2021", which seeks to increase the age of marriage for women to 21 years across all religions.

Case title - Nargis and another v. State of Punjab and others

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