Today we will talk about Legal Status of Child Marriage with their Conflict between Child Marriage Act, 2006 and Muslim Personal Law. Even today in the 21st century girls as young as five to six years of age are married of on the name of protection of traditions and rituals.
With Coronavirus pandemic creating a havoc in the country, several evils and crimes against women have increased to a great extent. So is the case of child marriages, with the pandemic forcing the government to shut schools and colleges several students, especially girls have dropped out of school. Girls being considered as a burden on family are married of at an early age in order to get rid of them. Poor parents have seen this as an opportunity to get their underage daughters married off during this pandemic. Whether pandemic or not girls are often married of before attaining 18 years as decided by the government and enforced as per The Prohibition of Child Marriage Act, 2006. As per the study on ‘Status and Decadal Trends of Child Marriage in India’ by released by ‘International Day of the Girl Child‘ on October 11, stated that 17.26 million children and adolescents within the age group of 10-19 years were married in India.
Some of the reasons of child marriage include poverty, son preference, gender inequality, and many more, however, son preference being the premier reason. In India male child is preferred over girl child, thus several families couples conceive multiple times in hope of a son. Families who can afford and bear the expenses of the girls raise their daughters, however, poor families and families that cannot afford the expenses of girl child get rid of their daughter as soon as possible by getting her married the moment she attains puberty or in some cases even prior to that.
MARRIAGEABLE AGE AND PRACTICE OF CHILD MARRIAGE AS PER MUSLIM PERSONAL LAW
India is a country where different religions, cultures and traditions are practiced. However, different religions have their different set of laws in terms of marriage, divorce, succession known as the personal laws. According to the Muslim personal law’s girls can be married off after attaining puberty that is after attaining 15 years of age. A Muslim can marry upon attaining puberty, or as a minor with the consent of the guardian.
Marriage of a minor is valid upon the consent of guardian, however, the any of the party on attaining puberty may repudiate the marriage with the consent of a guardian, provided marriage is not consummated.
If at the time of marriage both the parties are minor and the marriage is solemnized with the consent of the guardian then the female spouse can divorce the male spouse under Section 2 (vii) of Dissolution of Muslim Marriage Act, 1939, provided marriage is not consummated
India despite being a secular country has different set of laws for different religions, despite The Prohibition of Child Marriage Act, 2006, being secular, it is not applicable to Muslim personal laws. Although as per The Prohibition of Child Marriage Act, 2006, the marriageable age is 18 for girls and 21 for boys, on the contrary as per Muslim personal laws the marriageable age is 15, as it is considered that the person attains puberty by then. In the name of personal laws and protection of communal values the practice of child marriage is very much followed.
In Nawab Sadiq Ali Khan vs. Jaya Kishori, the Privy Council held that girl child attains the age of majority at 9 years. The Patna High Court in Md. Idris vs. State of Bihar and Ors., stated that the age of attaining puberty for a girl is 15 years. In Mrs. Tahra Begum vs. State of Delhi & Ors, the petitioner had filed a writ of habeas corpus to produce his minor 15-year-old daughter. It was alleged that Shumaila (petitioner’s minor daughter) was kidnapped by Mehtab. The Delhi High Court referred to Article 251 of Mulla’s Principles of Muhammadan Law which states that, “every Muhammadan of sound mind, who has attained puberty, may enter into a contract of marriage.” Thus, a girl who has attained puberty is free to marry without the consent of parents or guardian and can live with her husband. With reference to this case the Delhi High Court made the following observations
Marriage after attaining the age of puberty.
Attaining of the age of puberty is an essential condition for solemnization of marriage.
It is upon the girl to decide whether she wants to reside at her husband’s place.
The girl can marry without the consent of the parents or guardian on attaining puberty and marriage will be valid.
Although the as per Muhammadan Law the marriageable age is when the girl attains puberty, that is, 15 years very often the various High Courts of India have preferred The Prohibition of Child Marriage Act, 2006, over the Muhammadan Law. In Mohammed Nihal vs. State, the petitioner a Muslim husband filed a habeas corpus petition to seek the custody of his Muslim wife. The petitioner was married to Mst Afsana in Delhi. The Delhi High Court in this case held that The Prohibition of Child Marriage Act, 2006, was applicable to Muslims as well. In Ms. Seema Begum vs. State of Karnataka, the petitioner a minor Muslim girl aged 16 years sought relief of declaration that the provisions of The Prohibition of Child Marriage Act, 2006, were not applicable to her, since the Muhammadan Law allowed marriage after attaining puberty, that is, after 15 years, without the consent of the parents or guardian. However, the Karnataka High Court took a contrary approach in this case. It stated that the provisions of The Prohibition of Child Marriage Act, 2006, were applicable in this case and rejected the petition filed by the petitioner. The court held that
- The marriageable age of 18 years as decided by The Prohibition of Child Marriage Act, 2006, cannot be called upon simply because the girl belongs to Muslim community. The court has the power and is duty bound to prevent child marriage, and that that the court cannot pass any such order by virtue of which small girls would become brides.
- The statutory law of The Prohibition of Child Marriage Act, 2006, would prevail over the uncodified personal laws
- The Prohibition of Child Marriage Act, 2006, is applicable to all the citizens of India irrespective of their religion.
Despite a legislation to prevent and punish the practice of child marriage, The Prohibition of Child Marriage Act, 2006, being enacted by the parliament the practice of child marriage continues even today in the name of religion or maintenance of values and traditions. The marriageable age under Muhammadan law being as low as 15 years and against the marriageable age of 18 years as provided in The Prohibition of Child Marriage Act, 2006, is a consistent threat on the childhood of young girls who are often married of as soon as they attain puberty. The lacunae in the law, the justification of traditional practices in the name of caste and religion, the inability of the victims to protest, as well as lack of awareness keep this shameful practice of child marriage going.
- The New Indian Express, 17.26 million married children and adolescents in 10-19 age group present in India: CRY, October 9, 2020, 23:13:00+05:30 , https://www.newindianexpress.com/nation/2020/oct/09/1726-million-married-children-and-adolescents-in-10-19-age-group-present-in-india-cry-2208200.html
- Shruti Rajagopalan, The economics of India’s high prevalence of child brides, October 26, 2020, 22:04:41+05:30,https://www.livemint.com/opinion/online-views/the-economics-of-india-s-high-prevalence-of-child-brides-11603727733091.html
- Diva Rai, Child Marriage and the Laws Pertaining to it, July 26, 2019, 18:43:53+00:00, https://blog.ipleaders.in/child-marriage-and-the-laws-pertaining-to it/#Child_Marriage_in_Muslim_Personal_Law_MPL
- Tahra Begum vs. State of Delhi & Ors, W.P. (CRL) 446/2012, Crl. M.A. 3701/2012
- Mohammed Nihal vs. State, 2008 4 Crimes (Del) 650
- Seema Begum vs. State of Karnataka, W.P. No. 75889 of 2013
Pravin Gandhi College of Law, Mumbai