2011(1) Crimes 276 (P&H)
SHORT NOTE
PUNJAB & HARYANA HIGH COURT
Nirmaljit Kaur, J.
Kammu —Petitioner
versus
State of Haryana & Ors. —Respondents
Cri. Writ Petition No. 623 of 2009
Decided on 16-2-2010

IMPORTANT POINT
Under the Mohammedan Law, a Muslim girl at the age of 15 years can marry without the consent of her natural guardian.

Headnote:Constitution of India—Article 226—Writ of Habeas Corpus—Prohibition of Child Marriage Act, 2006—Section 12(a)—Muslim Personal Law (Shariat) Application Act, 1937—Section 2—Muslim girl just above 15 years of age entered into marriage with respondent No. 5—Writ petition by uncle of girl to recover the detenue alleged to be a minor from custody of respondent No. 5—Marriage was stated to be without consent of wali i.e. father—Puberty and majority in Muslim Law are one and the same and presumption is that a person attains majority at the age of 15 years—A boy or girl who attained puberty was at liberty to marry any one he or she liked and guardian had no right to interfere if the match be equal—Girl had expressed her desire to accompany respondent No. 5 and wished to stay with him—Respondent could not be said to have kept girl in illegal custody—Girl was at liberty to decide her own fate, she being more than 15 years.

       Held: In the present case, Sarjeena is admittedly more than 15 years at the time of filing of the petition and is 16 years of age as on today. The mother of the girl was allowed to meet her in the Chamber. However, the girl refused to even talk to her mother. The girl was asked whether she would like to go with her parents but she strongly projected her denial and refused to go with them. Admittedly, respondent No. 5 and Sarjeena are living together after marrying each other. The said marriage is stated to have solemnized on 19-04-2009. In the objections to the report of the District Judge, it has been mentioned that she is pregnant. However, without deciding the factum whether the said averment is true or not, it is apparent that the girl is now more than 15 years of age and is capable of expressing her wish and desire. As per the Mohammedan Law, as on date, she has attained the age of puberty. Thus, as on date, she can marry without the consent of her guardian.

       As per the Text Book of Mohammedan Law by Aqil Ahmad, “Puberty and majority are in the Muslim law one and the same. The presumption is that a person attains majority at the age of 15 years. It should be noted that marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere if the match be equal.”

       Thus, the girl who is now more than 15 years of age has the option under the Muslim law to ratify or enter into the contract of marriage afresh.

       As per the judgment of Delhi High Court as Mohd. Nihal v. State 2008(4) RCR (Criminal) 477, it is held “when a Court is called upon to determine the welfare of a minor so far as appointing a guardian of his person or property or both is concerned, this exercise will have to be determined in consonance with Shariat Law in disputes between persons adhering to the Muslim faith” and in fact, went on to hold that Section 2 of the Majority Act indicates that its provisions do not impact on matters of marriage, dower, divorce and adoption and finally recorded the finding that “in this analysis, it is our opinion that a Muslim girl who has reached puberty or is presumed to have reached puberty on attaining the age of fifteen, is competent to enter into matrimony even if this partakes of a contract simplicitor.” In the case of Mohd. Nihal (supra), a muslim husband Mohd. Nihal, who was seeking the custody of his muslim wife by way of filing habeas corpus petition, was no doubt dismissed by relying on the judgment of Ayub Khan v. Mst. Akhtari AIR 1963 All 525 by holding that marriage before the age of 15 years entered into without the consent of Wali, was void. Irrespective of her consent but nevertheless allowed Mst. Afsana to decide her own fate and the future.

       The present case is a case of habeas corpus. No doubt, she was less than 15 years of age at the time of marriage but today she is almost 16 years of age. As per the Muslim Law, she has attained the age of puberty being 15 years. Thus, the uncle on behalf of the parents is seeking the custody of Sarjeena who is aged 16 years. The girl and boy are admitting their marriage. On the date of filing of the petition for protection of life and liberty, she was more than 15 years of age. Under the Mohammedan Law a Muslim girl at the date i.e. at age of 15 years she has expressed her desire to accompany respondent No. 5 and wishes to voluntarily stay with him. Thus, it cannot be said that he is keeping her in the illegal custody. The girl does not want to go with her parents. Accordingly and in view of the above discussion, the petition is dismissed with liberty to the girl. Who is today more than 15 years, to decide her own fate. (Paras 19 to 23)