The Punjab and Haryana High Court recently observed that even though Muslim Personal law permits marriage upon attaining the age of puberty, the Prohibition of Child Marriage Act, 2006 is a secular law and does not make any such distinction on the basis of religion.
The law prescribes 18 years as the minimum marriageable age for a female and 21 years for a male.
While allowing the protection petition of a runway couple, a Single Bench of Justice Amol Rattan Singh observed that if upon verification of the age certificates furnished by the parties, the age of the girl is found to be below 18 years of age, then action may be taken under the Child Marriage Act.
"Even though as per the Muslim Personal law a valid marriage can be contracted between the parties upon attaining the age of puberty; however, it is to be further noticed that the Prohibition of Child Marriage Act, 2006, does not differentiate on the basis of religion, as regards the commission of any offences punishable under the provisions of that Act," the Bench observed.
The girl in this case, Jaspreet had married a Muslim man namely Azim Khan. The former was stated to be aged above 18 years of age whereas it was claimed that the latter, even though a minor, is of marriageable age as per the Muslim Personal Law.
The protection petition was allowed in terms of judgment of the Supreme Court in Hardev Singh v. Harpreet Kaur 2020, where it was held that if a girl/woman is above marriageable age in terms of that Child Marriage Act (above 18 years), no offence punishable under the provisions of that Act would be made out.
Since the certificates furnished by the parties depicted the girl to be aged "just above 18 years", the Court held that the life and liberty of the petitioners would be duly protected, as per law, even though the boy was below the legally marriageable age in terms of the Prohibition of Child Marriage Act, 2006.
The Court added,
"if upon verification of the certificate, Annexure P-2, the age of petitioner no. 1 is found to be actually below 18 years of age, this order shall not prohibit proceedings under the provisions of the Act of 2006, all offences punishable under that Act being cognizable offences in terms of Section 15 thereof."
The conflict between Indian law and personal laws has been highlighted time and again through various decisions of the Courts throughout the country.
The Gujarat High Court had in December 2014, upheld the marriage of a minor Muslim girl, observing that, "According to the personal law of Muslims, the girl no sooner she attains the puberty or completed 15 years, whichever is earlier is competent to get married without the consent of her parents."
In September, the next year, the same High Court ruled that the Prohibition of Child Marriage Act, 2006 is a secular law which specifically deals with the problem of child marriages and that the same will override the provisions of Muslim Personal Law, Hindu Marriage Act or for that matter any personal law.
In 2017, yet again, the Gujarat High Court granted protection to a 21-year-old man who eloped with a minor girl, and solemnised the marriage under Muslim Personal Law.
Recently, the Punjab and Haryana High Court allowed the protection petition of a 36-years old Muslim man who married a 17 years old Muslim Girl, while noting that both the parties are of marriageable age under Muslim Personal Law.
Case Title: Jaspreet Kaur & Anr. v. State of Punjab & Ors.