The Supreme Court on Tuesday agreed for an early hearing of a plea by the National Commission for Protection of Child Rights (NCPCR) whether Muslim personal law allows marriage of a girl after attaining puberty while she is still a minor, would it prevail over the Prohibition of Child Marriage Act 2006.
As the matter could not be taken up today for the hearing, Solicitor General Tushar Mehta requested that the matter be heard and resolved at the earliest, as the different High Courts were giving contrary judgments. The Solicitor General had contended that Muslim girls who are 14, 15, 16 years old are getting married.
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Heading a bench also comprising Justice J.B. Pardiwala and Justice Manoj Misra, Chief Justice D.Y. Chandrachud said, “We have to settle the matter at once” and the matter will be listed soon.
The National Commission for Protection of Child Rights has approached the top court challenging an order of the Punjab and Haryana High Court which said a Muslim girl after attaining puberty is competent to enter into a contract of marriage with a person of her choice under the Muslim Personal Law.
Issuing notice on MCPCR plea, the top court has directed that the order of the Punjab and Haryana High Court, which held that a Muslim girl aged 15 years can enter into legal and valid marriage as per personal law, should not be relied on as a precedent in any other case.
Earlier, the National Commission for Women (NCW) had approached the top court to make the minimum age of marriage for Muslims girls the same as that of persons belonging to other religions.
The minimum age for marriage in India is currently 18 for women and 21 for men. However, the minimum marriage age for Muslim women is when they attain puberty and 15 years is presumed to be that age.
The NCW had said that allowing Muslims to marry at the age of puberty (around 15) is arbitrary, irrational, discriminatory, and violative of penal laws.
The plea had said even the Protection of Children from Sexual Offences Act (POCSO) does not provide for those under 18 to consent for sex.
It had said the PIL was filed for enforcement of the fundamental rights of minor Muslim women to bring Muslim personal law in consonance with the penal laws applicable for other religions.
The High Court in June 2023 in its order had cited the provisions of the Muslim Personal Law on marriage to rule that a 15-year-old Muslim girl was competent to enter into a contract of marriage with a person of her choice.
The NCPCR had sought to ensure proper implementation of statutory laws that are specifically in place to protect children below the age of 18 years.
The Commission highlighted the provisions of the Prohibition of Child Marriage Act (PCMA) 2006 and the Protection of Children from Sexual Offences Act (POCSO) to put forth its reasons for challenging the High Court ruling.
NCPCR has said that the High Court order was violative of Prohibition of Child Marriage Act which is a secular law that is applicable to all.
It further said that the provisions of POCSO says no child below the age of 18 years can give a valid consent.
