SC: Don't use as precedent HC order approving Muslim minor girl's marriage based on religious law
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New Delhi: The Supreme Court on Friday directed that a judgment issued by the Punjab and Haryana High Court approving the marriage of minor Muslim girls on attaining puberty as per Islamic law, should not be taken as a precedent.
Through this the apex court decreed that no fresh cases shall be decided based on the Punjab & Haryana HC verdict in the case Javed v. State of Haryana & Others. The verdict of that case had upheld the contention that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law., legal news portal Livelaw has reported.
A bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha passed this interim order while issuing notice in a special leave petition filed by the National Commission for the Protection of Child Rights challenging the judgment on the ground that it goes against the Protection of Children from Sexual Offences Act which prescribes 18 years as the age for sexual consent.
Solicitor General of India Tushar Mehta, appearing for the NCPCR, expressed concerns about using personal law as a defence for crimes under POCSO.
"Girls who are 14,15,16 are getting married. Can there be a defence of personal law? Can you plead custom or personal law for a criminal offence?", the SG submitted. "We are on the question if the marriage will be valid at all in the face of criminal law existing and the POCSO Act", the law officer of the Union stated
CJI Chandrachud however declined to stay the P&H HC order saying that if the judgment is stayed, the girl will have to be restored to her parents against her wishes. "Her parents wanted her to marry her maternal uncle. What will happen is, the moment we stay is she will be restored to her parents, which she does not want".
CJI agreed to issue notice in the matter and tag it along with the earlier similar petitions filed by the NCPCR against other High Court judgments which have taken the same view.
"Pending further orders, impugned judgment shall not be relied upon as precedent", the bench recorded in the order while issuing notice in the NCPCR plea to settle the question of law.
Noting that the Senior Advocate Rajashekhar Rao was appointed as an amicus in a previous petition filed by the NCPCR on the same issue(NCPCR vs Gulam Deen), the bench asked him to give assistance in the instant matter as well. Rao informed the bench that he has filed a written submission.
It may be noted that the Kerala High Court in a recent decision held that marriages as per the Muslim personal law are not excluded from POCSO Act and if one of the parties to such a marriage is a minor, the criminal offence under POCSO will be attracted, regardless of the validity of the marriage under the personal law.