The Court held that though as per Muslim Personal law, a valid marriage can be contracted between the parties upon attaining the age of puberty, there is no such special treatment under the Prohibition of Child Marriage Act.
By: Nidhi N. Anand, Ramaiah College of Law, (Bangalore)
The origin of child marriage was commonly believed in and practiced worldwide before the 19th century. Girls were required to be married off as soon as they attained puberty. A reference is found in the Dharmasastra as well. Similarly, before a boy attained the age of 16 years, he was also required to be married off.
As per Indian law, a boy before the age of 21 and a girl before 18 are not considered eligible to marry. Any such disobedience is regarded as unlawful and is a punishable offense and considered as child marriage. However, the law is relatively new of terming child marriage as a punishable offense, coming into existence just a few years before India gained its independence from British rule. Previously, child marriage was an accepted social practice prevalent in almost all parts of the country.
Recently, in the case of Jaspreet Kaur v. the State of Punjab, the Punjab & Haryana High Court held that the Prohibition of Child Marriage Act, 2006 does not differentiate based on religion as regards commission of any offenses punishable under the Act.
“As per the Muslim Personal law a valid marriage can be contracted between the parties upon attaining the age of puberty; however, it is to be further noticed that the Prohibition of Child Marriage Act, 2006, does not differentiate based on religion, as regards the commission of any offenses punishable under the provisions of that Act,” the order stated.
However, as per the judgment of the Supreme Court in Hardev Singh vs. Harpreet Kaur [2020 (1) RCR (Criminal)], if a girl/woman is above marriageable age in terms of that Act (above 18 years), no offense is punishable under the provisions of that Act would be made out, the Court clarified.
It, therefore, ordered that protection should be provided to an interfaith couple, the girl being above the marriageable age of 18 as per the Act though the boy was below the marriageable age.
One of the petitioners, Azim Khan was admittedly below the legally marriageable age in terms of the Act of 2006. The petitioners stated that neither were they in any prohibited relationship to each other nor was either of them married earlier.
Justice Amol Rattan Singh directed the Senior Superintendent of Police, Fatehgarh Sahib, and the Station House Officer Police Station Mandi Gobindgarh, District Fatehgarh Sahib, to ensure that the lives and liberty of the petitioners are not put to any harm or threat at the hands of their family, since the protection of life and liberty is a fundamental right of every citizen under Article 21 of the Constitution of India.
However, the Court added that if upon verification of the certificates, the age of petitioner Jaspreet is found to be actually below 18 years of age, this order would not prohibit proceedings under the provisions of the Act.
Further, it was made clear that if any of the averments made in the petition are found to be incorrect, specifically concerning either the petitioners being in any prohibited relationship to each other or as regards their previous marital status, the shall not be construed to be a bar on proceedings initiated as per law.