Minor Muslim Girl Can Marry Without Consent Of Parents On Attaining Puberty– Delhi High Court
While adjudicating upon a Writ Petition filed by a Muslim couple who were married as per Muslim customs and traditions against the will of their parents, the Delhi High Court has observed that as per the Mohammedan law, a Muslim girl on attaining the age of puberty can marry without the consent of her parents.
Justice Jasmeet Singh held that Petitioner No. 1, a young Muslim girl aged 15 years has a right to marry without the consent of her parents on attaining puberty and has a right to live with her husband.
The Muslim couple – Petitioners had moved the High Court and sought protection. The couple got married in the month of March 2022 in accordance with Muslim rites and rituals in Bihar.
As per the Petition, they took the decision to get married out of their own free will and consent. However, the girl's parents opposed the marriage and registered an FIR against Petitioner No. 2 – Husband of the girl under Section 363 IPC and later Section 376 IPC and Section 6 of POCSO Act were also added.
The Petitioner had informed the Court that she was regularly beaten by her parents and tried to marry her with someone else forcibly.
The Respondent – State had filed a status report before the Court as per which the date of birth of the girl was August 2nd 2006 i.e., the Petitioner was only 15 years and 5 months as on the date of marriage.
Upon medical examination of the girl, it was also found that both the Petitioners had sexual intercourse.
Counsel Arvind Singh appearing for the Petitioners contended before the Court that the girl was pregnant and expecting a child.
The Court placed reliance on the judgment of the Punjab and Haryana High Court rendered in the case of Gulam Deen and another vs. State of Punjab and others where the Punjab and Haryana High Court had noted that the marriage of a Muslim girl is governed by the personal law of the Muslims.
The High Court had also referred to Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla' has also been reproduced in the said decision which Article reads as under:
"195. Capacity for marriage – (1) Every Mohomedan of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (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."
Thus, the Court held, "It is thus clear that as per Mohammedan Law girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise minor girl."
Regarding the applicability of POCSO Act to the case, the Court held that the object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect the children below the children below the age of 18 years from sexual abuse.
"Hence, the petitioners being lawfully wedded to each other cannot be denied the company of the each other which is the essence of the marriage. If the petitioners are separated, it will only cause more trauma to the petitioner no.1 and her unborn child. The aim of the state here is to protect the best interest of Petitioner no.1. If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter private space of the petitioner and separate the couple. The doing of the same will tantamount to encroachment of personal space by the state," the Court added.
The Court also observed that the environment in the house of the Petitioner No. 1 is hostile towards her and her husband. There are allegations of physical abuse against the girl, in this context, the Court further placed reliance on the judgment of Vivek Kumar @ Sanju v. The State, (2007) 1 DLT (Cri) 902.
Thus, the Court allowed the Petition and directed that Respondent Nos. 1 to 3 shall ensure safety and protection of the petitioners.
The Court also directed that if Petitioner No.1 so desires, she can join the company of Petitioner No.2. The Court also held that the Petitioners are entitled to stay together.
Cause Title – Fija & Anr. v. State Govt. of NCT Delhi & Ors.