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‘Muslim girl above 16 is competent to marry any person of choice’: Punjab and Haryana HC cites Sharia to justify child marriage

"As per Article 195 from the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla, the girl being over 16 years of age is competent to enter into a contract of marriage with a person of her choice. The boy is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law,” the court noted.

On Monday (June 20), the Punjab and Haryana High Court ruled that a Muslim girl above the age of 16 years is competent to marry any person of her choice.

The matter was heard by a single-judge Bench of Justice Jasjit Singh Bedi. A Muslim couple from Pathankot, aged 16 and 21 years, approached the court to seek protection from their family members.

The duo informed the court that their marriage was solemnised on June 8 this year in accordance with Islamic rites and ceremonies. They claimed to have received threats from their family members, who disapprove of their marriage.

The counsel for the Muslim couple argued that under Muslim personal law, majority and puberty are considered the same. He added that it is presumed that a Muslim attains ‘majority’ at the age of 15 and contended that such an individual is free to marry anyone of his/her choice.

The petitioner couple had contended that in Muslim law, puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years.

The Muslim couple alleged that despite requests to the Senior Superintendent of Police (Pathankot), they were not provided with any protection.

Observations made by the Punjab and Haryana High Court

The Court ruled that a Muslim marriage is governed by the Muslim personal law, which allows marriage above the age of 16 years (otherwise barred under The Prohibition of Child Marriage Act, 2006).

The Judge noted, “As per Article 195 from the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla, the girl being over 16 years of age is competent to enter into a contract of marriage with a person of her choice. The boy is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law.”

The Punjab and Haryana High Court also granted protection to the couple by directing the SSP Pathankot to arrange for proper security measures. “Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of their fundamental rights as envisaged in the Constitution of India,” it ruled.

The Juge further noted that the Court could shut its eyes to the apprehension of the petitioners about their safety.

Punjab & Haryana High Court allows minor Muslim girl to marry Hindu man 

In December last year, the Punjab and Haryana High Court ordered the police to provide protection to a 17-year-old Muslim girl who had married a Hindu boy against the wishes of her family and relatives.

The court, in its order, noted that being a Muslim girl, she was at liberty to marry anyone of her choice once she attained puberty, implying that the minimum age law for marriage did not apply to Muslims in the country. The court further added that the guardian had no right to interfere.

It is noteworthy that the Parliament had earlier introduced the Prohibition of Child Marriage (Amendment) Bill 2021 to increase the marriageable age of girls to 21, equal to that of boys. Furthermore, while introducing the bill, the government said that it would be applicable to every girl irrespective of religion.

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OpIndia Staff
OpIndia Staffhttps://www.opindia.com
Staff reporter at OpIndia

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