NCW moves Supreme Court to make minimum age for marriage for Muslims same as that of other communities

The Supreme Court on Friday sought the response of the Central government on a public interest litigation (PIL) petition filed by the National Commission for Women (NCW) to make minimum age of marriage for Muslims same as that of persons belonging to other religions [NCW vs Union of India and ors].

A bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha issued notice, returnable in four weeks, on the plea filed through advocate Nitin Saluja.

Senior Advocate Geeta Luthra with advocates Shivani Luthra Lohiya and Asmita Narula appeared for the NCW.

The petitioner stated that the PIL is being filed for the enforcement of the fundamental rights of minor Muslim women, so as to bring Islamic personal law in consonance with the penal laws applicable for other religions.

The minimum age for marriage in India is currently 18 for women and 21 for men. A bill to make uniform the two is pending scrutiny before a parliamentary committee.

However, the minimum marriage age for Muslim women is when they attain puberty and 15 years is presumed to be that age. Hence, marriage with Muslim women above 15 years is treated as valid.

The NCW argued in the plea that allowing Muslims to marry at the age of puberty (around 15) is arbitrary, irrational, discriminatory, and violative of penal laws.

"A person who has attained puberty may be biologically capable of reproduction, however, the same does not imply that the said person is mentally and psychologically mature enough to get married and physically mature to engage in sexual acts and consequently, bear children," the plea stated.

It was also contended that allowing the practice will enable forcible marriage of young Muslim girls, and make them subject to sexual abuse, harassment and exploitation at their husband's behest in the name of consent.

Even the Protection of Children from Sexual Offences Act (POCSO) does not provide for those under 18 to consent for sex, it was pointed out.

"Merely because child marriages have been performed as a part of a tradition does not mean necessarily mean that the tradition is an acceptable one nor should it be sanctified as such," the plea said.

Accordingly, the PIL also prayed that the POCSO and Prevention of Child Marriage Acts as well as the Indian Penal Code be given effect over personal law of all religions in this regard.

The issue raised in the present PIL of a conflict between penal laws and Muslim Personal Law, has come up before several High Court in the recent past.

The Punjab and Haryana High Court in Javed v. State of Haryana and the Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi &Ors had held that a Muslim girl on attaining 15 years is entitled to marry a person of her choice and sex by the husband with such a minor girl he married would not attract the rigours of POCSO Act.

The Karnataka High Court in Mohammad Waseem Ahamad v. State had also quashed the criminal case against the accused, who had married a 17-year-old girl as per Mahomedan law.

Interestingly, the same High Court, in Aleem Pasha v State of Karnataka held that the POCSO Act overrides Muslim personal law with respect to the age of consent for sex and hence, sex after marriage with minor Muslim girl would not be exempted from POCSO.

Most recently, the Kerala High Court in Khaledur Rahman v State of Kerala concurred with the latter decision of the Karnataka High Court and held that regardless of the validity of a marriage under personal law , if one of the parties is a minor, the offences under the POCSO Act would stand.

The Supreme Court is currently seized of a batch of appeals against the Punjab and Haryana High Court's judgment.

[Read order]