Last month, a Muslim girl (17 years old) who married a Muslim man (36 years old) was granted protection by the Punjab & Haryana High Court, noting that Under Muslim Personal Law, the two are of marriageable age.
A security plea filed by the Muslim Husband-Wife (Petitioners) who solemnized their marriage on 21 January 2021, according to Muslim rituals and ceremonies, was heard by the Bench of Justice Alka Sarin.
Although the date of birth of petitioner No.1 (husband) is 01 April 1984, 10 January 2004 is the date of birth of petitioner No.2 (wife).
Argument,
The petitioner’s lawyer cited the Punjab & Haryana High Court’s rulings to argue that puberty and plurality are one and the same in Muslim law and that there is an assumption that a person at 15 years of age achieves a majority.
It was also pleased that a Muslim boy or girl who has reached puberty is free to marry whoever he or she wants, and that the guardian has no right to intervene.
It has also been argued that puberty and plurality are one and the same under Muslim law and that there is an assumption that a person achieves a majority at the age of 15.
It was also reported that the life and liberty of the petitioners were in extreme danger at the hands of respondent Nos.4 to 14 and that the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2) was sent to the Senior Superintendent of Police, but no action was taken on this.
Finally, it was demanded that directives be given in compliance with the legislation to determine the said representation in a time-bound manner.
Courts observation,
The Court has taken notice of the decisions quoted on behalf of the petitioners and of the fact that, in the present case, the girl is Petitioner No.2. More than 17 years of age. In the case of Yuns Khan vs. State of Haryana & Ors, the Court also found that.’ [2014(3) RCR (Criminal) 518, in which it was observed that the marriage of a Muslim girl is regulated by the Muslims’ personal rules.
Referring to Article 195 of the book ‘Sir Dinshah Fardunji Mulla’s Principles of Mohammedan Law,’ the Court ruled, “The petitioner No.2 being over 17 years of age was competent to enter into a contract of marriage with a person of her choice.”
It may be noted that, according to Article 195 of Sir Dinshah Fardunji Mulla’s book ‘Principles of Mohammedan Law,’ any Mahomedan of sound mind who has attained puberty may enter into a marriage contract and puberty shall be assumed, in the absence of evidence, to have reached the age of fifteen years.
In view of the aforementioned debate, the petition was then disposed of in a manner directed to the Senior Police Superintendent, S.A.S. Nagar, Mohali. (respondent No.2) to decide on the representation of the petitioners dated 21.01.2021 and to take the required steps according to the statute.
It should be noted that the legal marriage age in India is 18 years for girls and 21 years for youth. The Special Marriage Act, 1954, and the Ban of Child Marriage Act, 2006 control this.
Under Muslim law, however, marriage, or Nikah, is a contract. The right of individuals to marry on their own free will is recognised by Muslim law. The prerequisites for a legal Muslim marriage are:
- The people both must profess Islam.
- The age of puberty should be both.
- A bid and approval need to be made and two witnesses must be present.
- Mehar, and Dower and Mehar and
- The lack of a forbidden amount of contact.
It is similarly important to remember that the Supreme Court acknowledged in the Hadiya Case (Shafin Jahan v. Asokan K.M. and Ors.) that the validity of the marriage option of an adult woman should not be challenged.
The Supreme Court decided in 2019 to address the issue of whether a Muslim minor girl who has reached puberty is permitted to live with an individual of her choosing.
