SLP Challenging Punjab & Haryana High Court’s Order Regarding Marriage of Minor Muslim Girls Filed by NCPCR

On 4^th November, 2022 National Commission for Protection of Child Rights (NCPCR) filed Special Leave Petition (SLP) challenging the order of Punjab & Haryana High Court regarding marriage of minor Muslim girls.

The Punjab & Haryana High Court in its verdict dated 30.09.2022 had held that Muslim girls over 15 years of age can marry, and such marriages wouldn’t violate Prohibition of Child Marriage Act, 2006.

The Case in question is: Javed (Petitioner) vs. State of Haryana and Other (Respondents), 2022

A criminal writ petition was filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus directing to release the detenue (minor girl), who is stated to be in the custody of Ashiana, Sector 16 , Panchkula.

Learned Counsel for the Petitioner:

• The age of petitioner is 26 years (born on 10.06.1996).
• Date of birth of the detenue is 15.03.2006 and thus, she is more than 16 years of age.
• It is stated that at the time of marriage, the said detenue was more than 16 years of age and the marriage was performed by the petitioner, and the detenue out of their free will and without any pressure (also Statement recorded under Section 164 of Cr.P.C.).
• Both the petitioner and the detenue belong to the Muslim religion and they have performed Nikah on 27.07.2022 in a Mosque situated at Manimajra.

The Learned for the petitioner relied on Yunus Khan vs. State of Haryana & Ors. 2014(3) RCR (Criminal) 518 praying that custody of the detenue be handed over to the petitioner.

Learned Counsel for the State:

Counsel for the State opposed the present petition and submitted that the date of birth of the detenue has been found to be as 15.03.2006 and thus, she is a minor as she is less than 18 years of age and therefore, she is being rightly kept in Ashiana Home, Sector 16, Panchkula, and has prayed that the present petition be dismissed.

Observations:

In the case of Yunus Khan vs. State of Haryana, it was observed that:

“33. As such, the marriage of a Muslim girl continues to be governed by the personal law of Muslims. In this regard, it would be useful to reproduce what is stated in the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, in Article 195 thereof. (10th Edition of 1933):

195. Capacity for marriage (1) Every Mahomedan of sound mind, who has attained puberty may enter into a contract of marriage.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.

Explanation: Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. (This Article is shown as Article 251 in Mullas’ Principles of Mahomedan Law, 19th Edition, by M.Hidayatullah. The same principle is also reproduced in Article 27 of Muslim Law by Faiz Badruddin Tyabji).

The Court considering the above Judgement observed that, “A perusal of the above said judgment would show that a coordinate Bench of this Court in the above said judgment had observed that the marriage of a Muslim girl continues to be governed by the personal law of Muslims and has relied upon the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla moreso Article 195 thereof, and after considering the same, it has been observed that 15 years is the age of puberty of a Muslim female, and on her own willingness and consent, after attaining puberty (15 years of age) can marry a person of her choice and such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.”

Keeping in view above facts and circumstances, and cases discussed above, The Hon’ble High Court allowed the present petition, and directed to handover the custody of detenue to the petitioner.

Relevant Cases cited in the Judgement:

• Mohd. Samim vs. State of Haryana and others (2019)
• Kammu vs. State of Haryana and Others (2010)

CORAM: HON’BLE MR.JUSTICE VIKAS BAHL

Date of Judgement: September 30, 2022