Marriage of a Muslim Minor Girl

Guest post by Pallavi Mohan

Recent judgements passed by two different high courts have given rise to doubts about whether a Muslim girl between the ages of 15 to 18 years can marry. To read more on Muslim Marriage and Child Marriage, please refer to our explainer here and here.

What does the Indian law say about Child Marriage?

Child marriage, i.e. marriage of boys below the age of 21 years and girls below the age of 18 years, are prohibited in India under the Prohibition of Child Marriage Act, 2006. However, if a marriage of a child takes place, it does not become automatically void. The child has the option to cancel the marriage or remain married. 

Does Muslim personal law create an exception to the Prohibition of Child Marriage Act?

Under Muslim personal law, a minor can get married if he/she has attained puberty (usually 15 years). Minors who have not attained puberty can only get married if their guardian contracts the marriage on their behalf. Any marriage, without the consent of the person getting married, is considered void. Therefore, it can be said that the Muslim personal law creates an exception in the prohibition of marriages of children above the age of 15 years. 

What were the contradictory observations of the two High Courts about the marriage of minor Muslim girls?

The Punjab and Haryana High Court was hearing a habeas corpus petition filed by a husband, seeking custody of his 16-year-old Muslim wife. The authorities were keeping her in a children’s home. The Court held that since the girl in question was above the age of puberty, i.e. 15 years, and had willingly entered the marriage, that marriage would not be void under Section 12 of the Prohibition of Child Marriage Act.  

On the other hand, the Kerala High Court was dealing with a criminal case where a complaint under the Protection of Children from Sexual Offences Act, 2012 (POCSO) was being considered. This was a case of a marriage between a Muslim couple where the 17-year-old wife had become pregnant after sexual intercourse. The Court refused to accept the argument that under Muslim personal law marriages of minors who had attained puberty were permitted. The Court observed that the POCSO Act was a special law which would override personal law. Any sexual activity with a minor (below 18 years), even after marriage under Muslim law, would be considered a criminal act in terms of the POCSO Act.

How can this contradictory position be resolved?

When two High Courts take contradictory stands on a legal issue, the Supreme Court has to decide the issue finally. A few months ago, the Supreme Court has issued a notice in an appeal where the argument is that the Prohibition of Child Marriage Act and the POCSO Act are secular acts, which have an overriding effect over all laws including Muslim Personal law. Once the Supreme Court decides these issues one way or the other, similar issues pending in High Courts will have to be decided in the same manner, and in the future, the High Courts would be bound by the ruling of the Supreme Court.