The Supreme Court on Monday issued notice on a plea by National Commission for the Protection of Child Rights (NCPCR) challenging a verdict by the Punjab and Haryana High Court, in which the court allowed a 16-year-old Muslim girl to enter into a valid marriage under the Muslim Personal Law.
Solicitor General Tushar Mehta, on his part, submitted before a bench headed by Justice Sanjay Kishan Kaul this is an important issue, and he is not against the protection granted. Mehta said, but can the court pass an order against the penal provisions?
The bench said this matter will have to be considered. The top court appointed senior advocate Rajshekar Rao as amicus curiae in the matter.
The top court was informed that the high court judgment would impact on the ban of child marriages and also the POCSO Act. The bench said will any court follow the judgment when the Supreme Court is considering the issue. “How will anybody follow this? We are saying we will examine the issue. Let us hear the amicus…,” said the bench, also comprising Justice Abhay S. Oka. The high court had granted protection to a Muslim couple.
Mehta urged the court to stay the two paragraphs of the impugned order. Justice Kaul said the matter will be heard and it is keeping it open for now. The top court scheduled the matter for further hearing on November 7.
The NCPCR moved the apex court challenging the June 13 order delivered by the bench of Jasjit Singh Bedi. The plea argued that the order is essentially allowing a child marriage and this violative of the Prohibition of Child Marriage Act, 2006.
The High Court, in its order, said, the marriage of a Muslim girl is governed by the personal law of the Muslims.
“As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage, and puberty is presumed, in the absence of evidence, on completion of the age of fifteen years,” the high court 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,” it said.