On July 15 2024, a significant judgment was delivered by the Kerala High Court through which the bench of Justice P. V. Kunhikrishnan ruled that the Prohibition of Child Marriage Act, 2006 will supersede the Muslim Personal Law (Shariat) Application Act, 1937. In its order, the bench expressed its displeasure at justification of child marriages were being put forth by evoking the Muslim Law by stating that a Muslim girl enjoys a religious right to marry after attaining puberty irrespective of age, even though the Prohibition of Child Marriage Act apply to all the citizens of India without and beyond India. Rejecting the same contention, the Court upheld that every Indian citizen regardless of their religion and location is bound to adhere to the law prohibiting child marriage.
“Every Indian is a citizen of the country first and thereafter only he becomes a member of the religion. When the Act 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion.” (Para 23)
Thus, through this judgment, the bench of Justice P. V. Kunhikrishnan held that a person’s primary standing as a citizen of the nation supersedes their religious beliefs. The Court declared that religion comes second and citizenship first. The Court so observed that the Prohibition of Child Marriage Act applies to as well as binds all citizens, irrespective of their religious affiliation—Hindu, Muslim, Christian, Parsi, or any other.
In the said 37-paged judgment of the Court, the bench also mentioned to the psychological impact that marriage has on the child, impacting their education, career and lives, making child brides are more vulnerable to domestic violence and abuse. As per the judgement, marrying a child invoking religious texts and norms denies the child the enjoyment of their basic and fundamental rights. The judgment further emphasised upon the duty of every citizen to see that there is no child marriage.
Background of the case:
An FIR had been filed against the petitioners on the complaint made by Integrated Child Development Scheme Officer (ICDS Officer), Vadakkencherry to the Circle Inspector of Police, Vadakkencherry, in which it had been mentioned that a child marriage happened within the jurisdiction of ICDS Alathur Additional on December 30, 2012. The FIR had been registered at the Vadakkencherry Police Station alleging offences punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006.
As per the FIR, the 1st accused had conducted the marriage of his minor daughter with the 2nd accused as per the religious tenets and rites in Islam. Accused Nos. 3 and 4 are the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee. The 5th accused is the witness who signed the record regarding the conduct of the marriage. As per the FIR, all the accused were guilty of committing an offence under Sections 10 and 11 of the Prohibition Act.
The present case had reached the Kerala High Court as the petitioners urged the Court to quash proceedings against them for allegedly committing the offence of child marriage punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act.
Arguments submitted to the Court:
By the petitioners (accused in the FIR) – The petitioners put forth two major arguments. Their first submission was that under Islamic law, a Muslim girl has the ‘Khiyar-ul-bulugh’ or ‘Option of Puberty,’ granting her the right to marry upon reaching puberty, typically at 15 years old. They claimed that the marriage of a minor girl is not considered void, it is voidable at her discretion once she attains puberty. It is stated that Muslim personal law prevails over the Prohibition of Child Marriage Act, and any marriages solemnised before or after the said Act is voidable only at the option of the married girl. Therefore, it is contended that a Muslim girl, who has attained puberty, that is 15 years, could marry and such a marriage would not be a void marriage.
The other argument raised by the petitioners was that the birth date of the minor girl in question had been incorrectly noted by the school authorities. Since the parents of the girl were illiterate and came from a very remote and economically backward village, the mistake was not rectified. It was submitted by the petitioners that the 1st petitioner’s wife delivered his daughter on November 27, 1994, however, the child did not join the school at an appropriate age. Based on the abovementioned circumstances, the petitioners stated that the girl was admitted to the primary school by giving an incorrect date of birth by the school authorities, and therefore, the wrong entry of the date of birth in the school records occurred.
Lastly, the petitioners also highlighted the issue of there being a delay in filing the complaint, which showed that the same was filed with malafide intention. Based on these submissions, the petitioners urged the Court to quash the case against the petitioners.
By the Amicus Curiae- The Amicus Curiae filed a paper book containing the relevant provisions and also all the decisions of different courts, including the Apex Court on this issue of child marriage permitted under personal laws. The crux of the submission of the Amicus Curiae is that when the Act 2006 is in force, the same will override the personal law of the parties. The Public Prosecutor had also supported the argument of the Amicus Curiae and submitted that there is nothing to interfere with the final report.
Observations of the Court:
The bench discussed the objective and provisions of the Prohibition of Child Marriage Act in detail. Including the important provisions from the 2006 Act, the bench highlighted that the special legislation was brought in response to the mounting calls for strengthening the provisions of the erstwhile Child Marriage Restraint Act 1929 by making it more effective and for making the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriage in the country.
The bench highlighted that as per Section 1(2) of the Act, the application of the said legislation extends to all citizens of India without and beyond India. Based on this, the bench provided that that the 2006 Act has extra territorial jurisdiction and is applicable to Indian citizens living abroad, regardless of their location. As per the bench, this further clarified that the Act is also applicable to all citizens irrespective of their religion.
“Section 1 (2) of Act 2006 says that, it extends to the whole of India and it applies also to all citizens of India without and beyond India. From the above provision itself it is clear that if a person is a citizen of India, Act 2006 is applicable irrespective of his religion, whether he is a Hindu, Muslim, Parsi, Christian etc. Therefore, from Section 1(2) of Act 2006, it is clear that it extends to the whole of India and it applies also to all citizens of India without and beyond India.” (Para 9)
The Court noted that every citizen, non-governmental organization etc. must inform the Child Marriage Prohibition Officer or Court about any information regarding child marriage.
“So, it is the duty of every citizen of the State to inform the Child Marriage Prohibition Officer if information is received about any child marriage in the State. The citizens of the State should be alert about the above provision and the Child Marriage Prohibition Officers also should be vigilant about their duties and powers as per Act 2006 and Rules 2008.” (Para 15)
The bench further noted that the special law specifies that Judicial Magistrates of the First Class or Metropolitan Magistrates can issue injunctions to prevent child marriages and, under Section 13 of the Act, have suo-moto powers to act on such complaints/information. The Court urged Magistrates to be alert about their powers to take suo moto cognizance on being informed about child marriages.
“Therefore, if any reliable report or information is received about a child marriage, it is the duty of the Judicial Magistrate of First Class/the Metropolitan Magistrate to suo motu take cognizance based on such reliable report or information. There are other procedures also mentioned in Section 13. Therefore, I am of the considered opinion that, all the Magistrate in the State should be vigilant to take cognizance, if any reliable report or information is received about any child marriage.” (Para 18)
The bench additionally pointed to the important role that that print and visual Media can play in spreading awareness regarding the evil of child marriage as well as the laws that exist in India that prohibit child marriages in the country. As per the bench, it is the duty of the print and visual media to publish articles highlighting the evils of child marriage, sharing stories of survivors and victims, creating awareness about the loss and consequences of child marriage, promoting education and empowerment of girls and exposing perpetrators and their actions.
“The visual media should also broadcast documentaries and shows on child marriage, creating public service announcements and awareness campaigns, depicting the negative consequences of child marriage in movies and TV shows, interviewing experts, survivors and activists. The print and visual media should be a platform for voices against child marriage, encouraging public discourse and debate, supporting and amplifying initiatives working towards eradicating child marriage, holding those in power accountable for enforcing laws and policies, educating the public about the physical, emotional and psychological harm caused by child marriage etc.” (Para 19)
Coming to the contentions raised by the petitioners in the present case through which the petitioners have provided that since the personal law of Muslims permits every Mohammedan of sound mind who has attained puberty to enter into a contract of marriage, the provisions of Act 2006 does not apply to Muslims, the Court said that even Mohammedans are not exempted from the applicability of Act 2006.
“I am of the considered opinion that, the provisions of Act 2006, which was subsequently enacted, is applicable to Muslims also as far as child marriage is concerned. This is because of the importance of Act 2006 and also because it is a special Act enacted with a great object. It is true that the Principles of Mahomedan Law by Mulla says that, every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. But, as I observed earlier, every Indian is a citizen of the country first and thereafter only he becomes a member of the religion.” (Para 23)
The bench also clarified that the Prohibition of Child Marriage Act would also override the provisions of the Majority Act of 1875. This is because Section 2 of the Majority Act stipulates that the Act does not affect a person’s capacity to act in matters such as marriage, dower, divorce, adoption, and it also specifies that it does not apply to the religion or religious rites of Indian citizens.
In Para 27 of the judgment, the bench went on to state that it is in disagreement with the decisions of the Patna High Court in Md. Idris v. State of Bihar and Others (1980), Punjab and Haryana High Court in Kammu v. State of Haryana (2010), Delhi High Court in Tahra Begum v. State Of Delhi & Ors. (2012) which held that a Muslim girl can marry upon reaching puberty and that such marriages are not considered void.
In regards to the argument raised by the petitioner on the wrong age of the Muslim girl being mentioned in the school register, the bench provided that the Court cannot accept that version of the petitioners and quash the proceedings at this stage as this is a matter of evidence.
“The petitioners are free to adduce evidence on that before the trial court at the appropriate stage and the court concerned will consider the same in accordance with law based on the evidence adduced by the petitioners.” (Para 28)
The third contention raised by the petitioners was that there was a 1½ years’ delay in filing the complaint after the marriage. Upon this, the bench noted that while it was true that there was some delay in filing the complaint, the bench cannot ignore the purpose of Act 2006 which is to eradicate child marriage. Thus, when a citizen, that also a person belonging to Muslim community, submits a complaint stating that there is a child marriage in his religion, the Court cannot reject the same saying that there is a delay in submitting the complaint. With this, the bench rejected the third contention raised by the petitioner.
The bench underlined the detrimental effects of child marriage, pointing out that it violates fundamental human rights and results in the exploitation of minors. It stated that early marriage and pregnancy create health problems for victims of child marriage. The bench further highlighted that child marriage restricts girls’ access to the workforce, forces them to drop out of school, and keeps them in poverty. It was said that child brides are susceptible to emotional and psychological harm from domestic abuse. The bench continued by saying in its judgment that it is the responsibility of every citizen to stop child marriages.
“Let the children study according to their wishes. Let them travel, let them enjoy life and when they attained maturity, let them decide about their marriage. In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, of course with the blessings of their parents.”
Decision of the Court:
Based on the observations made by the bench as provided herein above, the bench rejected the contentions of the petitioner that their minor daughter can marry upon attaining puberty since she is a Muslim. Accordingly, the Court dismissed the case and stated that the petitioners had not made a case to quash the proceedings.
The complete judgment can be read below:
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