Supreme Law News

Can Muslim be punished for marriage?

The legal age to marry a girl is 18 years, but when it comes to Muslims, there is an exception and under Muslim Personal law, a Muslim can even marry a girl at the age of 15.

Now, this very exception stands in contravention to POSCO laws and Child marriage act.

The courts across the country are divided on this issue of giving priority to IPC or Muslim Personal Law.

The Punjab and Haryana High Court in Javed v. State of Haryana and the Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi &Ors had held that a Muslim girl on attaining 15 years is entitled to marry a person of her choice and sex by the husband with such a minor girl he married would not attract the rigours of POCSO Act.

The Karnataka High Court in Mohammad Waseem Ahamad v. State had also quashed the criminal case against the accused, who had married a 17-year-old girl as per Mahomedan law.

Interestingly, the same High Court, in Aleem Pasha v State of Karnataka held that the POCSO Act overrides Muslim personal law with respect to the age of consent for sex and hence, sex after marriage with minor Muslim girl would not be exempted from POCSO.

Most recently, the Kerala High Court in Khaledur Rahman v State of Kerala concurred with the latter decision of the Karnataka High Court and held that regardless of the validity of a marriage under personal law , if one of the parties is a minor, the offences under the POCSO Act would stand.

The Supreme Court sought the response of the Central government to make minimum age of marriage for Muslims same as that of persons belonging to other religions [NCW vs Union of India and ors].

Currently, minimum marriage age for Muslim women is when they attain puberty and 15 years is presumed to be that age.

Its often argued that allowing Muslims to marry at the age of puberty (around 15) is arbitrary, irrational, discriminatory, and violative of penal laws.

"A person who has attained puberty may be biologically capable of reproduction, however, the same does not imply that the said person is mentally and psychologically mature enough to get married and physically mature to engage in sexual acts and consequently, bear children," the plea stated.

It was also contended that allowing the practice will enable forcible marriage of young Muslim girls, and make them subject to sexual abuse, harassment and exploitation at their husband's behest in the name of consent.

Even the Protection of Children from Sexual Offences Act (POCSO) does not provide for those under 18 to consent for sex, it was pointed out.

"Merely because child marriages have been performed as a part of a tradition does not mean necessarily mean that the tradition is an acceptable one nor should it be sanctified as such," the plea said.

Accordingly, the PIL also prayed that the POCSO and Prevention of Child Marriage Acts as well as the Indian Penal Code be given effect over personal law of all religions in this regard.

Dr. Ajay Kummar Pandey

( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )

Advocate & Consultant, Supreme Court of India & High Courts

4C Supreme Law International, Delhi, NCR. Mumbai & Dubai

Tel: M- 91- 9818320572. Email: editor.kumar@gmail.com

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