A few months back, I had written a critique of a decision of Gujarat High Court, delivered on 2 December 2014, wherein I had maintained that the High Court had wrongly applied the Muslim Personal Law to the marriage of a minor Muslim girl, while ignoring the provisions of the Prohibition of Child Marriage Act, 2006. I was of the opinion that in that case the Gujarat High Court had wrongly held that: “According to the personal Law of Muslims, the girl no sooner she attains the puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents.” I had opined that the provisions of the Prohibition of Child Marriage Act, 2006, are irrespective of the religion of the contracting parties to a marriage, as they override provisions of personal laws applicable to various communities, including Muslims. Now, my above stand is vindicated by another judgment of the Gujarat High Court itself [Yunusbhai Usmanbhai Shaikh v. State of Gujarat, Criminal Misc. Application No. 8290 of 2015, decided on 23 September 2015], wherein by literally using the same arguments that I had advanced in my above article, the High Court has now held that provisions of the Prohibition of Child Marriage Act, 2006 are secular in nature, that they apply to all communities including Muslim, and that these provisions override the Muslim personal laws. Thus, Gujarat High Court has now held that a Muslim girl below the age of 18 years cannot marry since it is a violation of the provisions of the aforesaid Prohibition of Child Marriage Act, 2006. The court has directed police to investigate a case under the provisions of the Prohibition of Child Marriage Act, 2006, against a Muslim youth who had married a minor Muslim girl of the age of 16 years and 4 months [even though, Muslim Personal Law permits marriage of a Muslim girl above the age of 15 years]. Surprisingly (and, as a coincidence), the decisions in both these cases have been delivered by the same judge, Justice J.B. Pardiwala of Gujarat High Court. Full judgment is reproduced below.
It is further satisfying to note that this new judgment of Gujarat High Court has made use of most of legal submissions made in my above article.
The High Court has now held that:
“The object behind enacting the P.C.M. Act was to curb the menace of child marriages, which is still prevalent in this country and is most common among the Muslim community and in rural areas.”
It is further held that:
“Thus, in my view, the arguments of the learned counsel appearing for the applicant accused that the Personal Law would prevail over the P.C.M. Act, 2006 cannot be countenanced and is rejected.”
Since most of the discussion in the new judgment is on similar lines as I had mentioned in my above article, I’ll not repeat the same here.
The full judgment of the Gujarat High Court has been reproduced below.