SC to study if under-18 Muslim girl can marry on attaining puberty

NEW DELHI: The Supreme Court’s 2018 judgment on the marriage of Hadiya nee Akhila and Safin Jahan, which recognised attaining of puberty as a condition for a valid Muslim marriage, has resulted in an unintended legal complexity — a 16-year-old Muslim girl has now petitioned the apex court to validate her marriage saying she has attained puberty.

In India, the legal age of marriage is 18 years for girls and 21 years for boys, both under the Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006. But the court in the Shafin Jahan case recognised that a Muslim marriage was valid if the following conditions were met: Both individuals professed Islam; both were of the age of puberty; if there was an offer and acceptance in the presence of two witnesses; giving of ‘mehr’; and absence of a prohibited degree of relationship.

Citing the SC’s 2018 judgment in Shafin Jahan vs Asokan K M, the 16-year-old Muslim girl moved the court through advocate Dushyant Parashar, challenging the Allahabad HC’s decision to send her to a women’s shelter home terming the marriage invalid because she was not of legal marriageable age.

A bench of Justices N V Ramana, Indira Banerjee and Ajay Rastogi entertained the petition and issued notice to the UP government and sought its response in two weeks. Parashar told the SC that examining the facts of the case on the touchstone of the Shafin Jahan judgment, it would be a valid marriage as both the 16-year-old girl and her 24-year-old husband professed Islam, attained puberty, there was offer and acceptance, giving and taking of ‘mehr’ and a nikahnama was drawn with the consent of the girl and the boy.
The girl’s father had lodged a police complaint alleging that the man had kidnapped his minor daughter. But the girl recorded her statement under Section 164 of Criminal Procedure Code before a magistrate and said she married the man of her own volition without any pressure and that she wanted to live with him.

But a court in Bahraich, UP, on June 24 took note that the girl had not reached the age of marriage and directed her to be lodged in the custody of the Child Welfare Committee, Bahraich, till she attained the age of majority, that is 18 years. The girl’s husband moved a habeas corpus petition before the Lucknow bench of Allahabad HC, which dismissed the petition and said under the Juvenile Justice (Care and Protection) Act, she would be treated as a minor and hence the marriage was void. The HC agreed with the lower court’s decision to send her to a women’s shelter home.

Advocate Parashar cited the Shafin Jahan judgment in which the SC had said that right to choose a life partner was a constitutionally guaranteed right. He said the girl’s father was interfering with her right to live with her life partner, whom she had chosen after attaining puberty and married through a valid nikahnama.