Supreme Court Issues Notice On NCW Plea Challenging Muslim Personal Law Allowing Minor Girls To Marry On Attaining Puberty

"Issue notice returnable in 4 weeks."

The matter was listed before a Bench comprising CJI, Justice D.Y. Chandrachud and P.S. Narasimha.

The petition notes that the 'minimum' age of marriage' under personal laws other than the Muslim personal laws are in consonance with the existing penal laws. It submits that under the Muslim person law, which is uncodified and unconsolidated, persons who have attained puberty are eligible to get married, even though they are still minors. The plea argues that the same is arbitrary, irrational and discriminatory and also in violation of penal laws, viz, Protection of Children from Sexual Offences Act, 2012; Indian Penal Code; Prohibition of Child Marriage Act, 2006.

As per the petition, the classification in case of Muslim women based on 'puberty' neither hs scientific backing nor any reasonable nexus with capacity to get married. Though the person might be biologically capable of reproduction, but might not be mentally and psychologically mature enough for marriage.

The petition refers to a recent judgment of the Delhi High Court Fija And Anr. v. State of Govt of NCT of Delhi, wherein the Court had allowed a petition filed by a Muslim woman and her husband exercising their right to reside with each other as under the Muslim personal law those who have attained the age of puberty can get married without the consent of their parents. It avers that under the Indian law consent can be given only by a person who has attained majority. Therefore, the consent of the Muslim women below 18 years is non-est.

The petition lists out the consequences of child marriage which include early pregnancy, maternal and neonatal mortality, child health problems, education setbacks, lower employment/livelihood prospects, exposure to violence and abuse leading to inevitable adverse physical and psychological consequences.

"The right to make a reproductive choice has been equated with personal liberty and Article 21 of the Constitution of India, privacy, dignity and bodily integrity. Non-application of the penal provisions to Muslim women, who have not attained the age of 18 years and are married, is violative of her fundamental tights in as much as the same is violative of their right to human dignity, right to be protected against sexual harrasment/sexual abuse or rape and right to health. Thus, the aforesaid is arbitrary, artificial, unreasonable and whimsical and violative of Articles 14,15 and 21 of the Constitution of India", the petition reads.

Senior Advocate, Ms Geeta Luthra appeared for the National Commission for Women. The petition was filed through Advocate-on-record, Mr. Nitin Saluja. Advocate, Mr. Shivani Luthra and Ms. Asmita Narula also represented the petitioner.

Recently, the NCPCR also approached the Supreme Court challenging a High Court judgment which held that a minor Muslim girl can marry on attaining puberty. Issuing notice on NCPCR plea, a bench led by Justice SK Kaul appointed Senior Advocate Rajasekhar Rao as an amicus curiae.

[Case Title: National Commission for Women v. UoI And Anr. WP(C) No. 983/2022]