Minor Muslim Girl Over 15 Yrs Of Age Free To Marry Person Of Her Choice, Marriage Not Void Under Child Marriage Prohibition Act: P&H High Court

It was the case of the petitioner that his marriage with his wife was performed with the free will of both the parties and since both the parties were Muslims, there marriage was valid, despite the detenue otherwise being a minor and below the age of 18 years.

The petitioner placed reliance on Yunus Khan v. State of Haryana and Others 2014 (3) RCR (Criminal) 518 in support of his argument that, in the present circumstances of both the parties being Muslims and having performed Nikah, the custody of the detenue should be handed over to the petitioner.

The respondent State, on the other hand, argued that the petition was liable to be dismissed since the detenue was a minor. They submitted that being less than 18 years of age, she was rightly being kept in a children's home – Ashiana.

The single bench of Justice Vikas Bahl, after looking at the relevant documents, the legal authorities and the statement of the detenue made under Section 164 of CrPC, ordered the release of the detenue from Ashiana and for the transfer of her custody to the petitioner.

The Court relied on the decision in Yunus Khan to reach its finding that the marriage between the petitioner and the detenue was a valid one, both the parties being Muslims. Referring to the law laid down in that case, the Court proceeded to observe that the facts of the present matter had to be subjected to the same legal principles. The court noted:

"A perusal of the above said judgment would show that a coordinate Bench of this Court in the above said judgment had observed that the marriage of a Muslim girl continues to be governed by the personal law of Muslims and has relied upon the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, more so Article 195 thereof, and after considering the same, it has been observed that 15 years is the age of puberty of a Muslim female, and on her own willingness and consent, after attaining puberty (15 years of age) can marry a person of her choice and such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006."

Case Title: Javed v. State of Haryana and Others

Case No: CRWP No. 7426 of 2022

Coram: Justice Vikas Bahl

Citation: 2022 LiveLaw (PH) 276

Click Here To Read/Download Order