Ban on child marriage applies to all religions; overrides Muslim personal law: Kerala High Court

In a significant ruling, the Kerala High Court has held that child marriage is prohibited by law for all, regardless of the religion they follow [Moidutty Musliyar & Ors. v. Sub Inspector Vadakkencherry Police Station & Ors.]..Justice PV Kunhikrishnan noted that as per Section 1(2) of the Prohibition of Child Marriage Act, the ban on the marriage of minors is applicable to all citizens of India even those who live beyond its borders."A person should be a citizen of India first, and thereafter only his religion comes. Religion is secondary and citizenship should come first. Therefore, I am of the considered opinion that, irrespective of religion, whether a person is Hindu, 3 Muslim, Christian, Parsi etc., Act 2006 is applicable to all", the Court held.The Court also held that the Act overrides the Majority Act of 1875 to the extent that it says that attaining the age of majority which is 18 years shall not affect the capacity of any person to act in matters of marriage, dower, divorce, adoption and religious rites. "The Majority Act is enacted in the year 1875. Act 2006 come into force on 01.11.2007. I am of the considered opinion that the Act 2006 will override the provisions of the Majority Act as far as child marriage is concerned," the Court said. Pertinently, the Court ruled that the Act also supersedes Muslim personal law which allows Muslims who have attained puberty to marry. "This is because of the importance of Act 2006 and also because it is a special Act enacted with a great object...When the Act 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion," the Court's July 15 ruling stated..The Court proceeded to record its disagreement with certain decisions of the Patna High Court, Punjab and Haryana High Court and the Delhi High Court which held that the Act does not apply to Muslims. "When Act 2006 prohibits child marriage, the same is applicable to all, irrespective of religion, whether the parties are Hindus, Muslims, Christians, Parsi, etc.," the Court emphasised. .Notably, the Court highlighted the detrimental effects of child marriage on children, especially girls who are often forced to drop out of school and bear children at young ages all while being in a vulnerable stage of life. "In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, of course with the blessings of their parents. When they attain majority and decided that a partner is necessary in their life, let it happen at the appropriate stage so that child marriage can be eradicated from the society," the Court advised. .In the modern society, there cannot be any compulsion for marriage.Kerala High Court.It added that all citizens, especially Child Marriage Prohibition Officers and Judicial First Class Magistrates, must be alert and take necessary action in accordance with the law to ensure that child marriage is eradicated. The Court urged print and visual media as well to play a proactive role in spreading awareness of the ills of child marriage..The judgment was passed on a case where a minor Muslim girl's marriage was allegedly conducted while she was under the age of 18 years. The girl's father, husband, the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee, as well as a witness to the wedding, were arrayed as accused in a crime registered under the provisions of the 2006 Child Marriage Prohibition Act.They moved the High Court seeking to quash the proceedings arguing that since they are Muslims, the marriage of the minor cannot be considered void since Muslim girls enjoy a religious right known as 'Khiyar-ul-bulugh' or 'Option of Puberty'. They argued that Mohammedan law recognises and accepts such marriages and that such marriages can be declared void only at the insistence of the married girl once she attains majority. .The Court disagreed with the petitioners and held that the provisions of the 2006 Act supersedes all personal law, including Muslim personal law. The Court also recorded its disappointment with the fact that child marriages seem to be prevalent in a State like Kerala that boasts of 100 per cent literacy."Kerala is known for its 100% literacy. But, it is sad to hear that, even after the enactment of the Prohibition of Child Marriage Act decades ago, there are allegations of Child Marriage in Kerala. The saddest thing is that the petitioners herein are trying to justify the alleged child marriage stating that as per Mohammedan Law, a Muslim girl enjoys a religious right to marry after attaining puberty irrespective of age, even though the Prohibition of Child Marriage Act apply to all the citizens of India without and beyond India," the Court said.However, the Court made a note to appreciate the fact that the criminal case against the petitioners was registered by a man who belongs to the Muslim community itself "One Mr. Syed Muhammed submitted a complaint to the Child Development Project Officer, Alathur based on which the officer concerned submitted a complaint to the police and subsequently, Annexure-II FIR was registered. That shows that even the members of the Muslim community are coming forward against child marriage in their community and that is a proud moment to every citizens of India because, to uphold an Act of parliament, religion or personal laws of religions are not at all a consideration for them," the Court said..Even the members of the Muslim community are coming forward against child marriage in their community and that is a proud moment to every citizen of India.Kerala High Court.The Court ultimately declined to quash the criminal case against the petitioners and dismissed the petition. .The petitioners were represented by advocates RO Muhammed Shemeem and Naseeha Beegum PS.Advocate KM Firoz assisted the Court as amicus curiae. Senior Public Prosecutor Renjith TR appeared for the State. .[Read Judgment]