The Supreme Court on Monday agreed to examine the question of whether a Muslim girl who has attained the age of 15 years is competent to enter into a contract of marriage with a person of her choice [NCPCR vs Gulaam Deen and ors].
A bench of Justices Sanjay Kishan Kaul and AS Oka also appointed Senior Advocate Rajshekhar Rao as Amicus Curiae in the matter.
The Court was hearing an appeal filed by National Commission for Protection of Child Rights (NCPCR) against a Punjab and Haryana High Court order of June 13 which had ruled that as per Muslim personal law, a Muslim girl over the age of 15 years is competent to enter into a contract of marriage with the person of her choice.
“The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, the petitioner No.2 being over 16 years of age was competent to enter into a contract of marriage with a person of her choice,” the High Court had held.
Senior Advocate Rajshekhar Rao
The High Court, in this regard, had placed reliance on the judgment in Yunus Khan v State of Haryana wherein it was noted that a Muslim girl’s age of marriage was governed by Muslim personal law.
It had also adverted to Article 195 from the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla which states that ‘every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage’.
The explanation to that Article provides that puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.
During the hearing of the appeal on Monday, Solicitor General Tushar Mehta sought a stay on the relevant paragraphs of the order which laid down the law.
The Court proceeded to appoint Amicus to assist it and listed the case for further hearing on November 7.
Recently, the Delhi High Court had also held that according to Muslim law, a minor girl who has attained puberty can marry without the consent of her parents and has the right to reside with her husband.
It had further ruled that in such cases, when physical intercourse happens only after the wedlock, offences under the Protection of Children from Sexual Offences Act (POCO Act) will not be attracted.
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