Can a Muslim minor marry? Court ruling reignites personal law vs child protection debate
The Punjab and Haryana High Court has observed that under Muslim personal law, a person who has attained puberty is presumed to be competent to marry a person of their choice. The observation came while the court heard a petition by a Muslim couple seeking protection of their life and liberty after their marriage against the wishes of the woman’s family.
The case involved a 26-year-old Muslim man and a 17-year-and-eight-month-old Muslim woman. They said they had performed nikah after the woman’s father opposed their relationship. Justice Vikram Aggarwal noted that 'as per Muslim Personal Laws, a boy or girl who has attained the age of puberty, which happens to be 15 years, is at liberty to marry anyone of his or her liking'.
The ruling brings into focus a long-standing legal question: how personal laws interact with statutory child-protection laws such as the Prohibition of Child Marriage Act, 2006 (PCMA) and the Protection of Children from Sexual Offences Act, 2012 (POCSO). Under the PCMA, a 'child' is a male who has not completed 21 years of age or a female who has not completed 18 years of age. A 'child marriage' is a marriage where either contracting party is a child.
Muslim personal law, as referred to by the High Court, is drawn from Article 195 of Sir Dinshah Fardunji Mulla’s Principles of Mohammedan Law. It recognises a Muslim of sound mind who has attained puberty as competent to enter into a marriage contract. In the absence of evidence showing earlier or later puberty, the legal presumption applies from the age of 15. The court also relied on its earlier decision in Kammu v. State of Haryana (2010), which held that a Muslim boy or girl who has attained puberty may marry a person of their choice, and that a guardian cannot interfere when the requirements of the applicable law are met.
Courts have taken differing views over the years. In Mohd. Samim v. State of Haryana (2018), the Punjab and Haryana High Court examined the marriage of a man and a 16-year-old girl. The petitioner argued that the marriage was valid under Muslim personal law and that the PCMA did not apply. The court concluded that the marriage was valid under Muslim law because the girl had attained puberty and was considered a major under that personal law. It directed her release from a safe house so that she could live with her husband.
The Karnataka High Court, however, has taken a different position. In Rahul v. State of Karnataka (2021), it noted that the POCSO Act would have an overriding effect on Muslim personal law. The issue was considered again in Aleem Pasha v. State of Karnataka (2022). The Karnataka High Court observed that the POCSO Act is a special law to protect children from sexual offences and therefore overrides personal law. It said a person would be guilty of penetrative sexual assault under the POCSO Act if the wife is under 18, even if the sexual act took place within marriage.
In that case, the petitioner sought bail and argued that since the girl had reached puberty, and Mohammedan law treats reaching puberty at 15 as a consideration for marriage, there had been no violation. The High Court disagreed strongly, stating that the POCSO Act overrides personal law and that the age for engaging in sexual activity is 18 years.
The original report also noted that in October 2022, the Supreme Court issued notice on a plea by the National Commission for Protection of Child Rights (NCPCR). The legal question, therefore, remains contested and is being examined by different courts. The debate involves balancing religious personal law, statutory child protection, and the constitutional rights of individuals. While some courts have upheld marriages under Muslim personal law when the parties have attained puberty, others have held that the PCMA and POCSO Act must prevail to protect children. The issue is likely to require a definitive ruling from the Supreme Court.
