Gujarat High Court wrongly applies Muslim Personal Law to marriage of a...

Gujarat High Court wrongly applies Muslim Personal Law to marriage of a minor girl

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In a recent case decided on 2 December 2014, Gujarat High Court has 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 (Note: this judgment of the High Court is reproduced at the end of this article). In this case, the High Court 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.” On the basis mainly of this statement, the High Court wrongly quashed an FIR for offences under the Prohibition of Child Marriage Act. While doing so, unfortunately, the High Court did not take into consideration the relevant provisions of the aforesaid Prohibition of Child Marriage Act that came into effect from 11 January 2007, which create certain offences with regard to the marriage of a child, irrespective of the religion.

Prohibition of Child Marriage Act, 2006

As per the aforesaid Act, “child marriage” has been defined in Section 2(b) as under:

“(b) “child marriage” means a marriage to which either of the contracting parties is a child;”

And, the word “child” has been defined in Section 2(a) in the said Act as under:

“(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;”

Thus, a male person who has not completed 21 years of age, and a female person who has not completed 18 years of age, are considered as “child”. If one of the contracting parties to a marriage is a child, defined as above, then such marriage is called “child marriage”.

Now, under the above law, “child marriage” has been declared as an offence under certain circumstances as mentioned below:

9. Punishment for male adult marrying a child.—Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

10. Punishment for solemnising a child marriage.—Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

11. Punishment for promoting or permitting solemnisation of child marriages.—(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees :

Provided that no woman shall be punishable with imprisonment.

(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.”

It may be pointed out that even though the punishment for these offences is not severe, all these offences have been specifically declared to be cognizable and non-bailable as per the provisions of Section 15 of this Act. This shows the kind of seriousness which was attached to these offences by the Parliament by enacting the said law.

It is pertinent to point out that these provisions of the Prohibition of Child Marriage Act, 2006, are irrespective of the religion of the contracting parties to a marriage. In fact, Section 1(2) of the said Act specifically lays down that this Act “…extends to the whole of India except the State of Jammu and Kashmir; and it applies also to all citizens of India without and beyond India”. Of course, it may be noted that the Proviso to Section 1(2) states that this Act shall not apply to the Renoncants of the Union territory of Pondicherry. But, there are no other exceptions other than what is mentioned above. Thus, this Act applies to ALL INDIAN CITIZENS residing within India and even outside India (excepting the State of Jammu and Kashmir and the Renoncants of the Union territory of Pondicherry).

It is true that various Muslim organizations in India have long argued that laws passed by Parliament, such as the aforesaid Prohibition of Child Marriage Act, 2006, do not apply to Muslims on the ground that marriage is a personal law subject. However, this argument has been rejected by the courts. For example, a Division Bench of the Delhi High Court in the case of Jitender Kumar Sharma v. State [W.P.(Crl.) 1003/2010 decided on 11.08.2010] held that the Prohibition of Child Marriage Act is a secular law. This finding was upheld by a full bench of the Delhi High Court in the case of Court On Its Own Motion (Lajja Devi) [W.P. (Crl.) No. 338/2008, decided on 27 July 2012] holding that the Prohibition of Child Marriage Act is a secular law (see here). Likewise, the decision of a full bench of Madras High Court in the case of T. Sivakumar v. The Inspector of Police [H.C.P. No. 907 of 2011, decided on 3 October 2011], has also accepted the same position (see here); by observing as under:

“…By declaring that the Prohibition of Child Marriage Act shall apply to all citizens, the parliament has intended to allow the Prohibition of Child Marriage Act to override the provisions of the Hindu Marriage Act to the extent of inconsistencies between these two enactments. …”.

Thus, it is clear that the provisions of the Prohibition of Child Marriage Act would override provisions of personal laws applicable to various communities. Also, this law is equally applicable to persons belonging to all religions. Therefore, it is unequivocally clear that the provisions of this Act definitely apply to Muslims who live anywhere in India excluding Jammu and Kashmir.

It is true that under this Act, a child marriage is not void, but as per the provisions of Section 3 of the said Act it is voidable at the option of the contracting party who was a child at the time of the marriage. And, of course, this provision is applicable to every child marriage, irrespective of the religion of the child. At the same time, in so far as offences under the said Act are concerned, these offences are made out even if such child does not exercise his or her option of the voidable marriage. There is no provision in the said Act to condone the offences committed thereunder even if such child fails to or refuses to exercise his or her option of the voidable marriage.

Moreover, there is specific no provision in the said Act that allows marriage of a Muslim girl who has not completed 18 years of age. The above law has been passed by the Parliament in public interest for the protection and safety of the children. This law supersedes personal laws of all religions, to the extent they are contrary to the provisions of this law.

In view of these reasons, it is respectfully submitted that Gujarat High Court was wrong to apply the provisions of the Muslim Personal Law, as per which “…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”, for quashing the FIR registered for offences under the aforesaid Prohibition of Child Marriage Act. It is submitted that in view of the specific provisions of the aforesaid Act, the above principle of the Muslim Personal Law will become inapplicable.

Now, let us visit the facts of the case before the Gujarat High Court. In that case, an FIR was lodged on the basis of a complaint given by the father of the minor Muslim girl (aged 17 years and 3 months) alleging that his daughter had got married with a Muslim boy who was aged 21  years. In the FIR, it is further stated that the father of the girl had informed that his daughter could not have performed Nikaah (i.e., marriage) with that boy as she was a minor. The FIR was lodged against the said boy and four other persons of the locality for the offences punishable under Sections 9, 10, 11 of the Prohibition of Child Marriage Act, 2006. The provisions of these sections have been reproduced above.

These accused persons thereafter filed a petition before Gujarat High Court under Section 482 of the Cr.P.C. praying for quashing of the aforesaid FIR. After quoting the aforesaid principle from the Muslim Personal Law, the High Court further observed as under:

“This is not a case  where there are any allegation of enticing or taking away so as to constitute the punishment under kidnapping from lawful guardianship under Section 361 of the IPC. It appears that the parents of the girl have also now accepted the marriage.”

On the basis of these reasons, the High Court quashed the above FIR.

It is submitted that, in any case, the FIR was not registered for any offence under the IPC and it was registered only for the offences under the aforesaid provisions of the Prohibition of Child Marriage Act. Moreover, the consent of the parents is irrelevant for the aforesaid offences under the said Act. Therefore, these observations of the High Court are of no consequence.

Let us now see “Statement of Objects and Reasons” for the enactment of the aforesaid Prohibition of Child Marriage Act, 2006:

Statement of Objects and Reasons.—The Child Marriage Restraint Act, 1929 was enacted with a view to restraining solemnisation of child marriages. The Act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of marriage. The Act, though restrains solemnisation of child marriages yet it does not declare them to be void or invalid. The solemnisation of child marriages is punishable under the Act.

2. There has been a growing demand for making the provisions of Act more effective and the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriages in the country. This will enhance the health of children and the status of women. The National Commission for Women in its Annual Report for the year 1995-96 recommended that the Government should appoint Child Marriage Prevention Officers immediately. It further recommended that—(i) the punishment provided under the Act should be made more stringent; (ii) marriages performed in contravention of the Act should be made void; and (iii)the offences under the Act should be made cognizable.

3. The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. The Central Government, after consulting the State Governments and Union territory Administrations on the recommendations of the National Commission for Women and the National Human Rights Commission, has decided to accept almost all the recommendations and give effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929.”

Thus, it is clear that the aforesaid Act has been enacted mainly with a view to “…eradicate or effectively prevent the evil practice of solemnisation of child marriages in the country”, and it was hoped that this “…will enhance the health of children and the status of women”.

It is respectfully submitted that Gujarat High Court, while delivering the aforesaid judgment, appears to have completely ignored these noble objectives of enacting the Prohibition of Child Marriage Act, 2006.

In the above-mentioned case of Court On Its Own Motion (Lajja Devi) [W.P. (Crl.) No. 338/2008, decided on 27 July 2012], the Full Bench of Delhi High Court had held as under (see here):

“…child marriage is such a social evil which has the potentialities of dangers to the life and health of a female child and plays havoc in their lives, who cannot withstand the stress and strains of married life and it leads to early deaths of such minor mothers. It also reflects the chauvinistic attribute of the Indian society.”

In the case of Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, the Supreme Court has made an observation that the Prohibition of Child Marriage Act, 2006, is one of the legislations enacted for the care and protection of children and that these legislations cast an obligation on non-State actors to respect and protect children’s rights and not to impair or destroy the rights guaranteed to children.

This being the position even for non-State actors, it was definitely a duty of the Gujarat High Court to uphold and apply the provisions of the Prohibition of Child Marriage Act in order to respect and protect children’s rights and not to impair or destroy these rights guaranteed to children. Unfortunately, the High Court has not come up to the expectations. It is respectfully submitted that such unfortunate judgments spoil the secular character of laws passed by the Parliament.

The above-mentioned Gujarat High Court judgment is reproduced below:

Gujarat HC Decision on Minor Marriage

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  • ZA Khan

    What problems others have if Muslims are allowed to follow their own laws?