In CRWP-5744-2022-PUNJ HC- 16-yr-old Muslim girl is competent to enter into contract of marriage under Muslim Personal Law: P&H HC Justice Jasjit Singh Bedi [13-06-2022]

Read Order: Gulam Deen and Another v. State of Punjab and Others

Monika Rahar

Chandigarh, June 17, 2022: While dealing with a protection plea of a married Muslim couple (aged 21 and 16 years), the Punjab and Haryana High Court has held that as per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, the girl being over 16 years of age was competent to enter into a contract of marriage with a person of her choice.

Also, the Bench of Justice Jasjit Singh Bedi noted that the boy was stated to be more than 21 years of age and thus both the petitioners were of marriageable age as envisaged by Muslim Personal Law. 

While addressing concerns surrounding threat to the life and liberty of the petitioners at the hands of their relatives, the Bench held, “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 of India.”

The Court was dealing with a Criminal Writ Petition under Article 226/227 of the Constitution of India for issuing a writ in the nature of mandamus directing the respondent-authorities to protect the life and liberty of the petitioners at the hands of private respondents. 

Essentially, both the petitioners, born in May 2001 and January 2005 respectively, fell in love and performed their marriage in June 2022 as per Muslim rites and ceremonies (since both the petitioners belonged to the Muslim community). 

The Counsel for the petitioners, while submitting that this was the first marriage of both the petitioners, contended that in Muslim law puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years. 

It was further contented that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere.

Further, it was the case of the counsel that the life and liberty of the petitioners was at risk at the hands of the private respondents and therefore, he made a limited prayer of seeking protection for the petitioners. The Counsel added that they had made representations before the SSP, Pathankot but no action was taken as of then, and therefore, he prayered for directions to address the same (representation) in a time-bound manner. 

After considering these submissions, the Court opined at the very outset that the marriage of a Muslim girl is governed by the Muslim Personal Law. Justice Bedi added that as per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, the second petitioner (girl) being over 16 years of age was competent to enter into a contract of marriage with a person of her choice.

Also, the Court was of the opinion that the first Petitioner (boy) was stated to be more than 21 years of age and thus, both the petitioners were held by the Court to be of marriageable age as envisaged by Muslim Personal Law.

Further, considering the fact 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 of India, the Court opined, 

“Article 21 of the Constitution of India 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.”

Additionally, Justice Bedi asserted that the Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed and that 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 of India.

Consequently, the Senior Superintendent of Police, Pathankot was directed to decide the representation of the petitioners and take necessary action as per law. 

The Court however clarified, “It is, however, made clear that this order shall have no effect on any other civil or criminal proceedings, if any, instituted/ pending against either of the parties.”