On upholding the marriage of a minor Muslim girl under personal law by the Punjab and Haryana High Court, the Supreme Court has said that this decision should not be used as a precedent.
oi-Anjan Kumar Chaudhary
The Supreme Court on Friday observed that the ‘marriage of a 15-year-old Muslim girl is legally valid under personal law’, noting that the Punjab and Haryana High Court’s decision should not be taken as a precedent in other cases. Punjab and Haryana gave this decision in the case of Javed Vs. State of Haryana Vs. Others, which is being disputed. A bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha has issued a notice while issuing an interim order in this matter.
NCPCR has challenged the decision of Punjab and Haryana High Court
In fact, the decision of the Punjab and Haryana High Court allowing a minor Muslim girl to marry has been challenged by the National Commission for the Protection of Child Rights (NCPCR) by filing a special leave petition in the Supreme Court. It states that under the Protection of Children from Sexual Offenses Act (POCSO), the age limit for giving sexual consent is 18 years.
‘Can the plea of personal law be raised in defense of an offence?’
According to Live Law, Solicitor General of India Tushar Mehta, appearing for the NCPCR in this case, has expressed deep concern over the attempt to save the crime under POCSO in the name of personal law. He said, ‘Girls who are 14, 15, 16 years old are getting married. Can it be saved in the name of personal law? Can you plead custom or personal law in defense of an offence?’
‘Will the marriage be valid in the light of the existing Criminal Law and the POCSO Act’
The Law Officer of the Central Government said that ‘the question before us is whether the marriage would be valid in the light of the existing Criminal Law and the POCSO Act’. CJI Chandrachud agreed to issue notices in the matter and tag along similar petitions filed by the NCPCR against similar judgments of other High Courts. The Solicitor General requested the bench to stay the judgment till then.
‘Parents wanted her to marry her maternal uncle’
To this, Chief Justice Chandrachud said that if the judgment is stayed, the girl may be sent to her parents against her will. Whereas, ‘while her parents wanted her to get married with her maternal uncle.’ ‘What will happen is that as soon as we put a stop, she will be sent back to her parents, which she doesn’t want.’
The decision will not be taken as a precedent – Supreme Court
The Chief Justice further said that ‘we will issue a notice to decide on the basis of law and say that the judgment cannot be used as a precedent’. On being pointed out by Mehta that similar judgments are being given by the High Court in many other cases, the bench, while issuing notice in the NCPCR petition, said in its order that ‘pending further orders, the impugned judgments Will not be taken as an example.
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Kerala High Court has drawn the line
It is important to mention here that the Kerala High Court has recently given a ruling that the Muslim Personal Law is not outside the purview of the POCSO Act and if one of the parties is a minor then the offense under POCSO would be considered, irrespective of the personal law. Why not be considered valid under
Why did CJI DY Chandrachud term the legal profession as feudal? , Supreme Court | Oneindia Hindi
The Supreme Court has said on the decision of the Punjab and Haryana High Court to justify the marriage of a Muslim minor girl under personal law that it will not be considered as a precedent
Story first published: Friday, January 13, 2023, 17:59 [IST]