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"16-Yr-Old Muslim Girl's Second Marriage Void, Prohibition of Child Marriage Act Applicable": P&H HC Directs To Lodge Her In Nari Niketan
Sparsh Upadhyay
2 Jun 2021 5:46 AM GMT
Hearing a protection plea filed by a Couple who allegedly got married against the wishes of their respective parents, the Punjab & Haryana High Court observed that:"(Since the girl is a minor and so) the prohibition contained in Section 12 of the Prohibition of Child Marriage Act, 2006 would be attracted as also the fact that a second marriage of a Muslim girl is void."The Bench of...
Hearing a protection plea filed by a Couple who allegedly got married against the wishes of their respective parents, the Punjab & Haryana High Court observed that:
"(Since the girl is a minor and so) the prohibition contained in Section 12 of the Prohibition of Child Marriage Act, 2006 would be attracted as also the fact that a second marriage of a Muslim girl is void."
The Bench of Justice Sudhir Mittal observed that Petitioner No.2 (Muslim Girl) was stated to be 16 years of age and thus, she is a minor.
"It is also noticed that this marriage (if it can be called so) is her second marriage," added the Court.
Court refuses to accept Mohd. Shamim's Ruling
Importantly, when the Counsel for the Couple tried to rely on the P&H HC's Judgment in Mohd. Samim vs. State of Haryana [CRWP No.532 of 2018], as well as Jakar and another vs. State of Haryana and others [CRWP No.9956 of 2020], the Court specifically stated that it was not in agreement with the Punjab & Haryana HC's judgment in Moh Samim vs State Of Haryana And Ors.
Importantly, in Samim, the Court had held that under Muslim law, puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years.
In that case, the Court had remarked:
"As per the Text Book of Mohammedan Law by Aqil Ahmad, "Puberty and majority" in the Muslim law are one and the same thing. The presumption is that when a person attains majority at the age of 15 years, it is the age of puberty and the marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl, who has attained puberty, is at liberty to marry any one he or she likes and the guardian has no right to interfere."
Regarding Jakar's ruling, the Court said that the same didn't refer to the Prohibition of Child Marriage Act, 2006.
Court's order
the Court directed the State Administration to take petitioner No.2 (Muslim firl) in custody and lodge her in the Nari Niketan nearest to her residence.
The Court further directed that while in the Nari Niketan, she shall be put through counseling in the presence of petitioner No.1 (Muslim Boy) and their respective parents/relatives.
"A report of the same be sent to this Court on or before the next date of hearing. Meanwhile, it shall be ensured that no harm comes to the life and liberty of the petitioners," added the Court.
In related news, in January 2021, the Punjab & Haryana High Court had granted protection to a Muslim Girl (17 Year Old) who married a Muslim Man (36 Year Old) while noting that both are of Marriageable Age under Muslim Personal Law.
Referring to Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', the Court had held,
"The petitioner No.2 being over 17 years of age was competent to enter into a contract of marriage with a person of her choice."
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.
It may be noted that 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.
In the year 2019, the Apex Court had agreed to examine the question as to whether a muslim minor girl who attained puberty be allowed to live with a person of her choice.
Case title - Sahib and Another vs. State of Haryana and Others
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