The Supreme Court on Monday issued notice on the petition filed by the National Commission for the Protection of Child Rights (NCPCR) challenging a recent judgement of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage. A bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka appointed Senior Advocate R Rajasekhar Rao as an amicus-curiae for assistance on the issue.
Solicitor General of India Tushar Mehta, appearing for the NCPCR, requested for stay of the observations in the judgment. “Please stay these two paragraphs of the impugned order”, the SG said. SG Tushar Mehta said that it is a “serious issue” in view of the impact on the ban of child marriages and also the POCSO Act.
The bench inquired whether any court would follow the judgement while the Supreme Court deliberated on the matter. “How will anyone follow this? We’re saying we’ll look into it. Let us hear the amicus, and then we will hear the case “, the bench stated while deferring the case to November 7.
The High Court granted protection to a Muslim couple, observing that a girl who has reached puberty is of Marriageable Age under Muslim Personal Law. According to precedent, the marriage of a Muslim girl is controlled by Muslim Personal Law.
The High Court had noted that as per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage, and Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. In the current case, petitioner No.2 being over 16 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law and therefore were granted protection by the High Court.
According to the NCPCR’s appeal, the High Court’s order effectively permits child marriage, which is a violation of the Prohibition of Child Marriage Act of 2006. According to the petition, the Act’s provisions are secular and apply to all religions. Aside from that, the judgement violates the spirit of the Prevention of Children from Sexual Offenses Act of 2012 (POCSO), which is also a secular statute. According to the law, no child under the age of 18 can offer legitimate consent. The petition also contended that child protection laws cannot be seen in isolation from Article 21 of the Constitution, which guarantees the right to life and liberty.