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Muslim Girl Marrying Upon Reaching Puberty: Personal Laws Cannot Prevail Over Criminal Laws

By Sunil Garodia
First publised on 2021-02-10 03:31:09

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

In a strange judgment, the Punjab & Haryana HC today said that a Muslim girl can marry upon reaching puberty, even before reaching the legal marriage age of 18 years, as per Muslim personal law. This goes against the Prohibition of Child Marriage Act (PCMA), 2006 and judicial precedents where courts have always held that whenever there is a conflict between personal laws and criminal laws, the latter will always prevail. Since it is a crime in India for a girl to marry, or be married off, before completing 18 years of age, this order is clearly not correct, will not stand judicial scrutiny and will be set aside if challenged.

The Madras High Court, in Adbul Khader versus K. Pechiammal, had observed PCMA "is secular in nature which has crossed all barriers of personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are prohibited." The court also said that "in the instant case what is claimed is a right to practice that which the personal law allows i.e., marriage of Muslim girl upon attaining puberty, on the premise that it has obtained legislative sanction under the Shariat Act, 1937. Rightly, such right is not claimed as a matter of religious faith. The practice would run counter to the social objective of the provisions of the Prohibition of Child Marriage Act, 2006 aimed to prevent the evil practice of solemnization of child marriages in the country towards enhancing the health of child and the status of women." The court also relied upon the judgment of a division bench of the Delhi HC judgment in Mohammed Nihal versus State where it was held that PCMA was applicable to Muslims.

It is strange and regrettable that even though a strong body of judicial precedent exists, judges are still confused over the primacy of criminal laws over personal laws. If people were allowed to take the shelter of personal laws while contravening provisions of an Indian criminal law, very soon no laws will be followed. Judges have to keep in mind that whatever case comes up before them has to be decided according to their reading of statutes and not based on personal laws of any religion. The issue of Muslim girls marrying upon reaching puberty has become a recurring one. Perhaps the time has come for the Supreme Court to issue strict guidelines that Indian criminal laws will always prevail over personal laws so that judges in lower courts do not issue such conflicting orders. 

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