The Delhi High Court has said that a girl on attaining puberty “could marry without consent of her parents” under the Muslim laws and has the right to reside with her husband even when she is otherwise minor.
Justice Jasmeet Singh made the observation in the case of a Muslim couple who married on March 11 against the wishes of the girl’s parents. While the man is 25 years old, the girl as per her family and police, was 15 years old in March. As per the Aadhaar card produced before the court by her counsel, she is over 19 years old.
“It is thus clear that as per Mohammedan Law, the girl who had attained the age of puberty could marry without consent of her parents and had the right to reside with her husband even when she was less than 18 years of age and thus otherwise (is a) minor girl,” said Justice Singh in an order dated August 17, the full copy of which was released on Monday evening.
While making the observation, the bench relied upon a Punjab and Haryana High Court order in which the court had made a reference to the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’.
Justice Singh further said that if the girl has wilfully consented to the marriage and is happy, the state is no one to enter her private space and separate the couple. “The doing of the same will tantamount to encroachment of personal space by the state,” said the court in the order.
The couple had approached the court in April seeking police protection and a direction to ensure that nobody separates them from each other. The parents of the girl, on March 5, registered a case with the police in Dwarka district alleging that the minor was kidnapped. Section 376 (rape) of the IPC and section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (Pocso) Act were added to the case later.
However, the girl told the court that she was regularly beaten by her parents at home and they forcibly tried to marry her to someone else. The police “recovered” the girl from the custody of the man on April 27 and produced her before the Child Welfare Committee (CWC). On the directions of the CWC, she was kept at Nirmal Chhaya Complex in Hari Nagar. The counsel representing the girl also told the court that she is pregnant and had eloped with the man out of her own free will and consent.
Justice Singh, in the order, said that the facts of this case are different from an earlier ruling in which it had been held that POCSO is an Act for the protection of children below 18 years from sexual abuse and will apply to Muslim law. In that case, the court said, there was no marriage between the victim and the accused, and sexual relationship was established prior to marriage. Post establishing the physical relationship, the accused had refused to marry the prosecutrix, the court said about the other case.
“On the other hand, in the present case, it is not a case of exploitation but a case where the petitioners were in love, got married according to the Muslim laws, and thereafter, had physical relationships,” said the court, adding that the couple was living together as husband and wife and there was no allegation that they had sexual intercourse prior to the marriage.
The court further said that the petitioners being lawfully wedded to each other cannot be denied the company of each other as it is the “essence of the marriage” and if they are separated, it will only cause more trauma to the girl and her unborn child. “It must also be kept in mind that in the present case, the environment in the house of petitioner no.1 (girl) is hostile towards her and her husband,” the order said.
Allowing the petition and directing the police to ensure the protection of the couple, the court said that the girl will be at liberty to join the company of her husband. “The petitioners are entitled to stay together and the respondent nos. 1 to 3 (Delhi government and police) are directed to ensure the personal safety and protection of the petitioners,” said Justice Singh.