The Punjab and Haryana High Court recently granted protection to a Muslim couple who had married against the wishes of their family in the case titled Shoukat Hussain & Anr. Versus The State of Punjab & Ors.
By: Shannia Yesenia, LLB, Prima University
The Punjab & Haryana High Court granted protection to a 17-year-old Muslim girl who married a 36-year-old Muslim man, claiming that both are at legal age to marry according to the Muslim law which presumes that a person who attains puberty is considered competent into a marriage
Both parties had fallen in love two years ago and decided to marry, and so they solemnized their marriage on 21st January 2021 as per Muslim rites and ceremonies.
Learned counsel for the petitioners argued that this is the first marriage of both the petitioners. He has relied upon the decisions by this Court in several cases such as ‘Kammu vs. State of Haryana &Ors.’, ‘Yunus Khan vs. State of Haryana &Ors.’ and ‘Mohd. Samim vs. State of Haryana &Ors.’ to contend that in Muslim law puberty and majority are the same and that there is a presumption that a person attains majority at the age of 15 years. It is further contended that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.
Furthermore, it also states that the life and liberty of the petitioners are in grave danger at the hands of respondent Nos.4 to 14 and they submitted a representation to the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2), however, no action was taken thereon
Lastly, it was prayed that directions be issued for deciding the said representation in a time-bound manner following the law.
The court took note of the judgments cited on behalf of the petitioners and also the fact that the girl is aged more than 17 years. The court also observed that in Yunus Khan (Supra) it has been held that that the marriage of a Muslim girl is governed by the personal law of the Muslims.
Further, the court also referred to Dinshah Fardunji Mulla’s book – Principles of Mohammedan Law to note that “as per Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, the petitioner No.2 being over 17 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 36 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law.”
The court also noted that just because the petitioners have got married against the wishes of their family members, they cannot be deprived of their fundamental rights. It was said that“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.”
Thus, given the above discussion, the petition was disposed of with a direction to the Senior Superintendent of Police, S.A.S. Nagar, Mohali (respondent No.2) to decide the representation of the petitioners dated 21.01.2021 (Annexure P-4) and take the necessary action as per law.