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‘Won’t be relied upon as precedent’: SC on HC judgment allowing minor Muslim to marry

New Delhi: The Supreme Court on Friday issued notice on a plea by National Commission for Protection of Child Rights against the Punjab and Haryana High Court order that a Muslim girl can marry a person of her choice after attaining puberty.

A bench, headed by Chief Justice D.Y. Chandrachud and comprising Justice P.S. Narasimha said: “We are inclined to entertain these writ petitions. Issue notice.”

Solicitor General Tushar Mehta contended that Muslim girls who are 14, 15, 16 years old are getting married. “Can there be a defence of personal law? Can you plead custom or personal law as a defence against a criminal offence?” he said.

Mehta emphasised that the age of attaining puberty is 15 years according to applicable personal laws in Islam.

The bench said the high court judgment – which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law – should not be relied on as a precedent in any other case. “Pending further orders, impugned judgment (of the high court) shall not be relied upon as precedent,” it said.

During the hearing, the top court was urged to stay the high court judgment, but pointed out that if the judgment is stayed, the girl might be restored to her parents against her wishes.

It said that her parents wanted her to marry her maternal uncle and what will happen is, the moment the high court judgment is stayed, she will be restored to her parents, which she does not want.

The top court said it will issue notice to decide upon the question of law and add that the judgment may not be used as precedent.

The bench issued notices to the Haryana government and others and appointed senior advocate Rajshekhar Rao as amicus curiae in the matter to assist the court.A

The National Commission for Protection of Child Rights, in its plea, said the high court erred in ignoring the fact that sexual intercourse with a minor girl below the age of 18 years, is sexual assault as per Protection of Children from Sexual Offences (POCSO) Act and this legal position cannot be changed due to marital status of the child and that whether on the facts and in the circumstances of the case and in law.

It added, “the high court was justified in upholding that a minor girl, after attaining puberty after the age of 15, on her own willingness and consent, can enter into a marriage of her own choice while not considering the validity of a marriage with a minor all the while glossing over the fact that the impugned judgment would lead to endorsing child marriage which is illegal in India because POCSO Act applies to everyone”.

The high court’s order came on a habeas corpus petition filed by a 26-year-old man against the detention of his 16-year-old wife in a children’s home in Panchkula. The high court noted that such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.

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