Can a Muslim girl child marry when she is below 18?
Marriage of a Muslim girl can be contracted when she attains puberty under the Muslim Personal Law (Shariat) Application Act, 1937.
The Section 2 of the Prevention of Child Marriage Act, 2006 (PCMA) defines any girl below the age of 18 as a child. The Section 3 of the act states that a marriage involving a child is voidable and can be made void by filing a petition at her option within two years after she becomes a major. If the girl does not file a petition for a decree of nullity, her marriage will remain legally valid.
In such a marriage there is lack of legal clarity regarding the consequences of the joint application of the PCMA and the Protection of Child from Sexual Offences Act, 2012 (POCSO Act).
Child marriage punishable under PCMA & POCSO
The Sections 9 of PCMA lays out the provision for punishing the person who contracts a child marriage. The Section 10 of PCMA provides for punishing a person who solemnises a child marriage. The Section 11 of PCMA provides for punishment for promoting or permitting a child marriage.
The Sections 3 of the POCSO Act lays out the what is penetrative sexual assault and its punishment. The Section 5 of the act describes the aggravated penetrative sexual assault and its punishment. Therefore, a man who has sexual intercourse with his minor wife is committing an offence and is liable to be punished.
No clarity on whether secular law overrides personal laws
There is no clarity as to whether these secular laws override personal laws. No law specifies it. Some court judgments consider the POCSO Act as a special legislation which can override personal laws. However, other judgments have held the contrary view.
The Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 says that Muslim personal law will govern the question of marriage when the parties are Muslims.
However, Section 42A of the POCSO Act stipulates that in case any of the provision of the act is inconsistent with any other law, the POCSO Act would prevail as it overrides any other law then in force.
Applicability of POCSO Act in child marriage
The Supreme Court in January 2023 stated that the judgment of the Punjab and Haryana High Court in the case Javed v State of Haryana and Others would not be taken as a binding precedent. The High Court, in a controversial judgement, held in September 2022 that the marriage of a Muslim girl would be governed by Muslim personal law and if a girl above the age of 15 years, on her own willingness, marries a person of her choice, the marriage would not be void under the PCMA.
The Kerala High Court in Khaledur Rahman v State of Kerala holds that marriage is not a reason to ignore the applicability of the POCSO Act. In this case the Muslim girl below the age of 18 years was impregnated by her husband. The girl was a native of West Bengal and was brought to Kerala after marriage. There were allegations that the girl was abducted from West Bengal by the husband. The court therefore concluded that the POCSO Act, being a special law, would prevail over the personal law, and the marriage would not be considered legally valid.
the Delhi High Court in case of Fija v State Govt of NCT of Delhi granted protection to the petitioners (minor girl and her husband) from the girl’s family as they had legally married under their personal law and engaged in consensual sexual intercourse with each other.
The Karnataka High Court while considering a similar situation in Mohammad Waseem Ahamad v State found that it was an arranged marriage, validly performed according to Muslim traditions. The girl who was a minor during the marriage had become pregnant while being a minor. A joint affidavit, showing the settlement of the dispute by the husband and the wife, led to the court holding that continuing the criminal proceedings would have been an abuse of the process of law as the victim may turn hostile during the trial. Hence, charges under the Indian Penal Code, the POCSO Act and the PCMA against the husband and his family were quashed.
The Madhya Pradesh High Court, in Mohd. Ansar v The State of Madhya Pradesh, denied relief to an accused under the POCSO Act who sought the concession of bail on the ground that the victim was a Muslim girl, who, though minor, had attained the age of puberty and the consent given by her is valid in law.
Assam continues large scale arrests
The State government of Assam, in a crackdown on child marriage, is taking strict action against those involved in child marriage. The government proceeds with jailing the men who married girls under the age of 18 years and others who facilitated such marriages, under the PCMA and the POCSO Act. Over 3,000 men have been arrested as part of the drive.
SC agrees to hear the issue
The Supreme Court (SC) has agreed, in October 2022, to examine the petition filed by the National Commission for Women challenging a Punjab and Haryana high court judgement and seeking equal application of the POCSO Act, irrespective of religion and personal laws.
The SC issued notice to the Union Government and the Law Commission of India, calling their responses to the petition.
CJM asks Parliament clear this legal issue
A day after issuing notice on the petition, the Chief Justice of India ( CJM) while speaking at the annual stakeholder’s consultation on the POCSO Act, appealed to Parliament to have a relook at the issue of the age of consent under the POCSO Act as it poses difficulties for judges examining cases of consensual sex involving adolescents.
A perfect balance is needed
In fact the issue is a delicate one. There cannot be a straight-jacket formula either to penalise every man who has married a minor girl or to reduce the age of consent without considering the capacity to consent.
Therefore, an imminent amendment in law is needed so that children are not left more vulnerable in the wake of POCSO Act for exercising their autonomy in decision making before attaining the legal age of majority.
