The Supreme Court issued a notice on Monday, October 17 on a petition by the National Commission for the Protection of Child Rights (NCPCR) and agreed to examine an order of the Punjab and Haryana High Court that allowed a minor Muslim girl to marry a person of her choice.
A Bench of Justices S K Kaul and Abhay S Oka also appointed senior advocate Rajshekhar Rao as amicus curiae in the matter to assist the court. The Punjab and Haryana High court order under scrutiny here allowed a marriage between a 16 year old Muslim girl and a 21 year old adult boy from the same community.
Now, let’s delve into what makes this matter complicated. Simply put, there are opposing and contradictory laws in place which have led the Supreme Court to examine the age for marriage for Muslim women. These laws clashing are namely the Muslim Personal Law and The Prevention of Child Marriages Act, 2006 paired with the Protection of Children from Sexual Offences Act, 2012.
The Muslim Personal Law was the basis on which the June High Court order was set where Justice J S Bedi found the petitioners, the 16 year old and the 21 year old to be of marriageable age as envisaged by Muslim Personal Law. The NCPCR found the order to be violating the provisions of The Prevention of Child Marriages Act, 2006 and thus argued that the high court had allowed child marriage reportedly.
The legal age for marriage is uniform across communities where the minimum age for the bride and groom is set at 18 years and 21 years respectively except for the Muslims where the criterion for a marriage between the bride and the groom is the attainment of puberty which is assumed to be attained when they turn 15. This is where things get murky because as per the Prevention of Child Marriages Act, 2006 those below 18 cannot be deemed to have given consent for their marriage.
If we go by history there have been occasions where the judiciary has given priority to one law over the other. In February 2021, the Punjab and Haryana High court recognised the marriage of a pair with a wide age difference where the girl was 17 and she was married to a man aged 36. Clearly, the personal law here superseded the opposing law. In 2017, however, the Supreme Court declared the practice of instant triple talaq as unconstitutional in “Shayara Bano v Union of India”. The Karnataka and Gujarat High Courts in some cases also held that the 2006 special law would prevail over the personal laws and have sent the minor girl to a care facility.
The centre has been in support of the Uniform Civil Code (UCC) for the entire country but the “ek desh ek kanun” has its own set of challenges.