23 Aug 2022 5:20 AM GMT
The Delhi High Court has observed that as per Mohammedan Law, a minor girl who had attained the age of puberty can marry without consent of her parents and has a right to reside with her husband even when she is less than 18 years of age. Justice Jasmeet Singh made the observation while granting protection to a muslim couple who got married in March this year as per Muslim rites and rituals....
The Delhi High Court has observed that as per Mohammedan Law, a minor girl who had attained the age of puberty can marry without consent of her parents and has a right to reside with her husband even when she is less than 18 years of age.
Justice Jasmeet Singh made the observation while granting protection to a muslim couple who got married in March this year as per Muslim rites and rituals. The plea was moved by the couple seeking directions to ensure that nobody separates them.
The parents of the girl opposed the marriage and registered an FIR under sec. 363 of IPC against the husband. Subsequently sec. 376 and sec. 6 POCSO were added.
According to the girl, she was regularly beaten by her parents and had eloped and married out of her own free will.
As per the status report filed by the State, the date of birth of the girl was August 2, 2006 which showed that she was only 15 years and 5 months on the date of the marriage.
The girl was recovered in April this year from the custody of the husband and her medical examination was conducted at Deen Dayal Upadhyay Hospital (DDU), Delhi.
The status report revealed that the couple had sexual intercourse and the couple was expecting a child together.
Granting protection to the couple, the Court observed:
"It is thus clear that as per Mohammedan Law girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise minor girl."
The Court was of the view that POCSO Act will not be attracted to the present case as it is not a case of sexual exploitation but a case where the couple was in love, got married according to the Muslim laws, and thereafter, had physical relationships.
"The object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect the children below the children below the age of 18 years from sexual abuse."
It was thus observed that the couple being lawfully wedded to each other cannot be denied the company of the each other which is the essence of the marriage.
"If the petitioners are separated, it will only cause more trauma to the petitioner no.1 and her unborn child. The aim of the state here is to protect the best interest of Petitioner no.1," the Court said.
It added "If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter private space of the petitioner and separate the couple. The doing of the same will tantamount to encroachment of personal space by the state."
The Court directed that if the girl desired, she will be at liberty to join the company of her husband.
"The petitioners are entitled to stay together and the respondent Nos. 1 to 3 are directed to ensure the personal safety and protection of the petitioners," the Court ordered.
The plea was accordingly allowed.
Case Title: FIJA & ANR. v. State
Citation: 2022 LiveLaw (Del) 793
Click Here To Read Order