The Delhi High Court recently comprising of a bench of Justice Jasmeet Singh said that as per Mohammedan Law, a girl who has attained the age of puberty could marry without consent of her parents and has a right to reside with her husband even when she is less than 18 years of age and thus, otherwise a minor. (FIJA & ANR. v. State)
The bench also said in such cases, the Protection of Children from Sexual Offences Act would not be attracted if the sexual intercourse has taken place after the marriage.
Facts of the case
The bench made the remarks while hearing a petition by a Muslim minor girl and a Muslim man who eloped to get married as per religious customs in Bihar.
The couple sought protection from the court as well as directions to ensure that nobody separates them from each other stating that the parents of the girl, who are opposed to the marriage, have registered a case of kidnapping against the man.
The bench took note of a status report filed by the prosecution where it stated that the couple were living with each other as husband and wife and that the girl was now pregnant.
The status report further said that the girl was 15 years and five months on the date of the marriage on March 3, 2022. On April 27, the girl was found by the police and as per the directions of the Child Welfare Committee (CWC), she has been kept at Nirmal Chhaya Complex in Hari Nagar.
Court's observations and order
The High Court, while directing the authorities to ensure safety & protection of the married couple where the wife is pregnant noted, “It is thus clear that as per Mohammedan Law girl who had attained the age of puberty could marry without consent of her parents & had right to reside with her husband even when she was less than 18 years of age & thus otherwise minor girl."
The High Court said the aim of the state is to protect the best interest of the female petitioner who was fifteen years of age at the time of marriage & was allegedly regularly beaten up by her parents at home while being forced to marry someone else.
The bench said, “If the petitioners are separated, it will only cause more trauma to the petitioner no.1 & her unborn child."
The Court also pointed out that the Pocso Act was enacted to “secure the tender age of the children & ensure they are not abused & their childhood & youth are protected against exploitation”. However, it pointed out that in the current case, there was no element of exploitation or sex on false promise of marriage. It is a case where the couple were in love, got married according to the Muslim laws, & only then had physical relationships, the HC highlighted.
It added that the status report given by the police showed that the parties were living with each other as husband & wife & didn’t have sex prior to their marriage which could attract law against child sexual abuse.
It added "If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter private space of the petitioner and separate the couple. The doing of the same will tantamount to encroachment of personal space by the state."
The Court directed that if the girl desired, she would be at liberty to join the company of her husband.
The Court allowing the appeal remarked, "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."
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(With input from news agency language)
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