17-yr-old Muslim girl is of marriageable age as envisaged by Muslim Personal Law & competent to enter into contract of marriage: P&H HC

Read Order: Nargis and another v. State of Punjab and others

Tulip Kanth

Chandigarh, December 27, 2021: While referring to Article 195 from the book, ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, the Punjab and Haryana High Court has held that the first petitioner(muslim girl) being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. 

The Bench of Justice Harnaresh Singh Gill observed that the first petitioner is of marriageable age as envisaged by Muslim Personal Law.

The present petition had been filed  under Article 226 of the Constitution for issuance of a writ in the nature of mandamus directing the official respondents to protect the life and liberty of the petitioners at the hands of private respondents.

From the petitioner’s side it was contended that the first petitioner, though minor, and second petitioner, had married with each other against the wishes of the private respondents and had sought protection to their life and liberty. They apprehend danger at the hands of the private respondents.The petitioners had also submitted a representation to Senior Superintendent of Police, Malerkotla, for redressal of their grievance.

The Bench referred to the judgment of the Coordinate Bench of this Court in Kammu vs. State of Haryana & Ors. wherein it was as opined that as per the text Book of Mohammedan Law by Aqil Ahmad, “Puberty and majority” in the Muslim law, are one and the same. The presumption is that a person attains majority at the age of 15 years. 

“As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, petitioner No.1 being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. Petitioner No.2 is stated to be about 33 years of age. Thus, petitioner No.1 is of marriageable age as envisaged by Muslim Personal Law”, said the Bench.

Clarifying that the issue in hand was not with regard to the validity of the marriage but to address the apprehension raised by the petitioners of danger to their life and liberty at the hands of the private respondents and to provide them protection as envisaged under Article 21 of the Constitution, the Bench observed tha Article 21 provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her life and personal liberty except as per the procedure established by law. 

The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution, noted Justice Gill.

Thus, without entering upon an exercise to evaluate the evidentiary value of the documents placed on the file,present petition was disposed of with a direction to the Senior Superintendent of Police, Malerkotla, to decide the representation moved by the petitioners, and grant protection to them, if any threat to their life and liberty is perceived.