Child Marriage v.

Punjab and Haryana High Court on Muslim

Girl Marriage With Above 15 Years

Citation: CRWP-7426-2022

Decided on: 30.09.2022

Coram: Hon’ble Mr.Justice Vikas Bhal

Main Issue: In the case of Javed v.State of Haryana and others,2022 the Punjab and
Haryana High Court has held the marriage of a Muslim girl below the age of 18 but
above 15 years of age, upon attaining puberty according to the Muslim Personal Law is
valid, provided that her consent is free.

Facts of the case: A criminal writ petition was filed under article 226/227 of the
Constitution of India for issuance of a writ in nature of Habeas corpus for the release of
the detenu who was under the custody of Ashiana,Sector16, Panchkula.

Both the petitioner and the detenu belongs to Muslim religion and they got married as
per the rules of Muslim Personal Law and at the time of marriage the petitioner
contends to be of 26 years of age and the detenu was of 16 years of age. With
reference to the statement made under Section 164 it’s evident that both got married
under free will with absence of any pressure of any kind.The detenu has stated that she
was fond of the petitioner and planned on marrying him which made them elope
together from her house.

The counsel for the petitioner seeks precedent from the case of Yunus Khan v. State of
Haryana & Ors to support his argument for release of the custody of the detenu and that
she must be handed over to the petitioner.

On the other hand the opposing counsel has objected to the request of the petitioner
stating that the detenu was a minor who did not attain the age of majority of 18 years
while she got married to the petitioner and thus the custody of the detenu must be
rightfully retained back in Ashiana Home,Panchkula and therefore requested the
Hon’ble Court to dismiss the fellow counsel’s petition.

Referring to the judgement of Yunus Khan’s case the court observed that Muslim
marriage is governed by the personal law of Muslim and relied upon the Principles of
Mohammedan Law and hence the marriage of a muslim girl above the age of 15 years
who has attained puberty and by her own will and consent can marry a person of her
choice and such marriage would not be void in terms of Section 12 of the Prohibition of
Child Marriage Act, 2006. As per the findings of this case if the detenu who was a
muslim girl below the age of 18 years but above 15 years and has attained puberty
wishes to accompany the petitioner with whom she got married with her free consent
must be allowed to do the same.

Judgement : As established in the case of Yunus Khan the judgement would apply to
the facts of the present case. Thus, the petitioner was granted his request and the
incharge of Ashiana,Sector16, Panchkula was directed to hand over the custody of the
detenu to the petitioner.

Observation: The judegment passed in this case in question is considered controversial

as it directly contradicts the provision of the Prohibition of Child Marriage Act, 2006
under section 12 which provides that where a child below 18years is enticed out of the
keeping of the legal guardian,or is forced, compelled or deceived or is trafficked or used
for immoral purpose and such child is made to solemnize a child marriage, such a
marriage shall be void ab initio.

The National Commission for Protection of Child Rights(NCPCR) had moved to the
Supreme Court challenging the ruling made by the Punjab and Haryana High Court in
reference to the case in question and argued that the Prohibition of Child Marriage
Act,2006 is a secular legislation and would apply to all religions, overriding all personal
laws.

The Supreme Court too restrained all courts in the country from treating the judgement
of the case of Javed v. State of Haryana and ors given by the Hon’ble High Court of
Punjab and Haryana as a precedent which held that Muslim girls become legally
competent to marry after attaining puberty at the age of 15 years.

In addition to this in 2021, the Centre Introduced a Bill to increase the age of marriage
for women, and ensure harmony in the age limit across religions to 21 years as
provisioned in the Prohibition of Child Marriage Amendment Bill,2021 which would come
into effect 2 years after the bill is notified following its passage in Parliament.

To conclude,in the context of child marriage implementation of the Uniform civil code
could potentially have a positive impact as it would mean that a uniform set of laws
would apply to all citizens irrespective of their religion.
Written by-
PRISNITA CHALIHA
University Law College,Gauhati University.
Contact no.- 6000805149
Email id- prisnitachaliha18@gmail.com