Khushi Bajpai
Published on: August 31, 2022 at 21:20 IST
The National Commission for the Protection of Child Rights (NCPCR) has filed a petition before the supreme court challenging a recent judgment of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage.
The special leave petition has been filed through Advocate Swarupama Chaturvedi.
Recently, the High Court had granted protection to a Muslim couple while noting that girl, who has attained puberty is of marriageable age under Muslim personal law, relying on precedents, the high court observed that the marriage of a muslin is governed by Muslim personal law.
“The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by the Muslim personal law.
As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, petitioner No. 2 being 16 years of age was competent to enter into a contract of marriage with a person of her choice.
Petitioner No. 1 is stated to be more than 21 years of age. Thus, both the practices are of marriageable age as envisaged by Muslim personal law.”
The High Court had 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, a and puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.
According to NCPCR’s petition, the high court’s ruling is essentially allowing a child marriage and this is a violation of the prohibition of Child Marriage Act, 2003. The provisions of the act are secular and applicable to all religions, petition says.
This apart, the judgement is against the spirit of the Prevention of Children Against Sexual Offences, 2012 (POCSO), which is also a secular law. As per the legislation, no child below the age of 18 years can give valid consent.
The Child protection laws cannot be seen in isolation with Article 21 of the Constitution guaranteeing the Right to Life and Liberty, the petition further argued.