The Delhi High Court has observed that as per Mohammedan Law, a minor girl who had attained the age of puberty can marry without the consent of her parents and has a right to reside with her husband even when she is less than 18 years of age.

Muslim Law is constructed upon The Quran. The Quran contains references to law forming the basis of Sharia. The Quran is not legal, and therefore Sunnat and Hadis are considered the resources of the law.

Justice Jasmeet Singh observed while granting protection to a Muslim couple who got married in March this year as per Muslim rites and rituals. The plea was moved by the couple seeking directions to ensure that nobody separates them.

The parents of the girl opposed the marriage and registered an FIR under sec. 363 of IPC against the husband. Subsequently sec. 376 and sec. 6 POCSO were added.

According to the girl, she was regularly beaten by her parents and had eloped and married out of her own free will.

As per the status report filed by the State, the date of birth of the girl was August 2, 2006, which showed that she was only 15 years and 5 months on the date of the marriage.

The girl was recovered in April this year from the custody of her husband and her medical examination was conducted at Deen Dayal Upadhyay Hospital (DDU), Delhi.

The petitioner's counsel stated that the woman is pregnant and the couple is expecting a child together.

After the submissions, the court further referred to various judgments and observed that the object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect children below the age of 18 years from sexual abuse.

In the present case, it is not a case of exploitation but a case where the petitioners were in love, got married according to the Muslim laws, and thereafter, had physical relationships, the court observed.

It is also clear from the status report that the parties were living with each other as husband and wife. There is no averment that they had sexual intercourse prior to thebeforeage, it held.

Granting protection to the couple, the Court observed:

"It is thus clear that as per Mohammedan Law girl who had attained the age of puberty could marry without the consent of her parents and had the right to reside with her husband even when she was less than 18 years of age and thus otherwise minor girl."

The Court was of the view that the POCSO Act will not be attracted to the present case as it is not a case of sexual exploitation but a case where the couple was in love, got married according to the Muslim laws, and thereafter, had physical relationships.

"The object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect the children below the age of 18 years from sexual abuse."

It was thus observed that the couple being lawfully wedded to each other cannot be denied the company of each other which is the essence of the marriage.

"If the petitioners are separated, it will only cause more trauma to the petitioner no.1 and her unborn child. The aim of the state here is to protect the best interest of Petitioner no.1," the Court said.

It added "If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter the private space of the petitioner and separate the couple. The doing of the same will tantamount to the encroachment of personal space by the state."

The Court directed that if the girl desired, she will be at liberty to join the company of her husband.

"The petitioners are entitled to stay together and the respondent Nos. 1 to 3 are directed to ensure the personal safety and protection of the petitioners," the Court ordered.

The plea was accordingly allowed.

Case Title: FIJA & ANR. v. State

Punjab and Haryana HC cites Sharia to justify child marriage

Interestingly, this is not the first case where a court has held the marriage of a minor Muslim girl legal. Recently, Punjab And Haryana High Court also justified child marriage by granting protection to a 16-year-old Muslim Girl who married a 21-year-old Muslim boy while noting that she is of Marriageable Age under Muslim Personal Law.

Last year too, the same verdict was passed by Justice Alka Sarin of the Punjab and Haryana High Court. While hearing the plea filed by a 36-year-old man and a 17-year-old girl, she gave the verdict relying on various court rulings and article 195 in ‘Principles of Mohammedan Law’, an authoritative textbook by Muslim personal law jurist Sir Dinshah Fardunji Mulla, that states: “Every Muslim with a mature mind who has attained puberty can contract marriage. Minors who have not attained puberty can be validly contracted in marriage by their parents.”

It is noteworthy that the Parliament had earlier introduced the Prohibition of Child Marriage (Amendment) Bill 2021 to increase the marriageable age of girls to 21, equal to that of boys. Furthermore, while introducing the bill, the government said that it would be applicablapplyrl irrespective of religion.

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