Examine the question of age of marriage

Source: By The Indian Express

The Supreme Court issued a notice on a petition by the National Commission for the Protection of Child Rights (NCPCR), and agreed to examine an order of the Punjab and Haryana High Court that allowed a minor Muslim girl to marry a person of her choice.

A Bench of Justices S K Kaul and Abhay S Oka also appointed senior advocate Rajshekhar Rao as amicus curiae in the matter to assist the court. Solicitor General Tushar Mehta, appearing for the NCPCR, submitted that this is a “serious issue” and sought a stay of the observations in the judgment.

What does the case relate to, and why has the NCPCR challenged it?

The Punjab and Haryana High Court Order

In June this year, the Punjab and Haryana High Court ruled on a case filed by two petitioners — a minor Muslim woman aged 16 years, and a Muslim man aged 21 years. They approached the court and sought protection as their families were opposed to the wedding, which had taken place as per religious customs earlier that month.

A single-judge Bench of the High Court passed an order allowing them protection. “The court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India,” the HC said.

The question of validity under the law

The legal age of marriage is 18 and 21 for a woman and a man respectively, and marriage at a younger age comes under the banned practice of child marriage.

However, this is not uniform across communities.

Justice J S Bedi said in the June order, “The law 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 (girl) being over 16 years of age is competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 (boy) is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law…”

The NCPCR has argued that the High Court had allowed child marriage, thus violating the provisions of The Prevention of Child Marriages Act, 2006, Live Law reported. As per law, those below the age of 18 cannot be deemed to have given consent.

How is the age for marriage determined in India?

Personal laws that govern marriage and other practices for communities prescribe certain criteria for marriage, including age. For example, Section 5(iii) of The Hindu Marriage Act, 1955, sets a minimum age of 18 for the bride and 21 for the groom. This is the same for Christians under the Indian Christian Marriage Act, 1872 and the Special Marriage Act.

For Muslims, the criterion is attaining puberty, which is assumed when the bride or groom turns 15.

At the same time, particular laws exist for the prohibition of child marriage: The Prohibition of Child Marriage Act, 2006 and the Protection of Children from Sexual Offences Act, 2012. Under the Child Marriage Prevention Act, any marriage below the prescribed age is illegal and the perpetrators of forced child marriage can be punished.

But the Prohibition of Child Marriage Act does not have any provision that says the law would override any other laws on the issue. So, there is a discrepancy between the Prohibition of Child Marriage Act and the Muslim personal law on the minimum age of marriage, and there is no clarity on what law supersedes the other.

Then what usually happens in such cases?

There have been differing interpretations.

In February 2021, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man), holding that theirs was a legal marriage under personal law. The HC said since the special law does not override personal laws, Muslim personal law will prevail.

But personal laws have been overridden as well. In 1996, the Supreme Court agreed with the Kerala High Court that although the Ecclesiastical Court can grant a divorce or nullify a Christian marriage, the Church cannot solemnise the second marriage of a party till the marriage is dissolved by a court.

More recently in ‘Shayara Bano v Union of India’ (2017), the Supreme Court declared the practice of instant triple talaq as unconstitutional, although it is provided for under Muslim law.

In some cases, the Karnataka and Gujarat High Courts have held that the 2006 special law would override personal laws and have sent the minor girl to a care facility.