Can prohibition of Child Marriage Act, 2006 override Muslim Personal Law?

Satya Prakash

New Delhi, August 6

Can a minor Muslim girl marry a man of her choice on attaining puberty at 15?

The Supreme Court on Tuesday agreed to examine the contentious issue after Solicitor General Tushar Mehta urged a Bench led by Chief Justice of India (CJI) DY Chandrachud to at the earliest in view of divergent views of various high courts which have delivered contrary judgments.

“There are different views taken by different high courts. Whether child marriage is permitted or not in one religion or another religion. We are arguing on constitutional principles. If that can be listed on priority on any Wednesday or Thursday....because new judgements are coming and we are multiplying appeals,” Mehta told the Bench after it could not take up the matter today.

“We have to settle the matter at once,” the CJI assured the Solicitor General and agreed to list the matter at any early date.

Mehta represented the National Commission for Protection of Child Rights (NCPCR), which has challenged a Punjab and Haryana High Court order that said under the Muslim Law, a minor Muslim girl was permitted to marry a man of her choice on attaining puberty at 15.

Acting on a petition filed by NCPCR, challenging the Punjab and Haryana High Court’s order, the top court had on January 13 last year issued notices to the Haryana Government and others and appointed senior advocate Rajshekhar Rao as amicus curiae to assist it in the matter. The high court verdict can’t be treated as a precedent, it had noted.

In its 2022 verdict, the Punjab and Haryana High Court had ruled that a Muslim girl who has attained puberty can enter into a lawful marriage, irrespective of the fact that she has not attained the age of majority i.e. 18 years.

However, the Kerala High Court held that provisions of the Prohibition of Child Marriage Act, 2006 will prevail over personal laws.

Now, the Supreme Court will have to essentially decide if the provisions of the 2006 Act can override the Muslim Personal Law which allows child marriages on attaining the age of puberty.

Section 2 (a) of the Prohibition of Child Marriage Act, 2006 defines “child” as “a person who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age and Section 2(b) of the Act treats any marriage a “child marriage” if either of the contracting parties is a child.

According to Section 9 of the Act, “Whoever, being a male adult above 18 years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.”

Further, Section 10 says, “Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.”