The marriage of a Muslim girl is governed by Muslim Personal Law, and the competence to marry is determined based on the age of puberty. The court emphasized the protection of fundamental rights as per the Constitution of India.

JUDGMENT :

DEEPAK GUPTA, J.

Shameem and Salma, the petitioners in CRWP-11190-2023 are Muslims by religion. Petitioner- Shameem is 23 years of age, whereas petitioner- Salma, with her date of birth being 03.05.2007, is more than 16 years 06 months of age. They wanted to perform marriage, to which their family members did not agree. They then entered into a matrimonial bondage in a Masjid at Zirakpur as per Muslim Rites and Ceremonies on 08.11.2023. Since marriage was performed against the wishes of the family members, they felt threat to their life and liberty and so, approached this Court by filing this petition i.e., CRWP-11190-2023 under Article 226 of Constitution of India for issuing the writ in the nature of mandamus to direct the official respondents to protect their life and liberty at the hands of private respondent Nos.4 to 6, who are the father, brother and uncle of the girl Salma.

2. On the other hand, the parents of the girl Iqbal and Rashida filed separate petition bearing No. CRWP-11123-2023 praying this Court to issue a writ in the nature of habeas corpus and to direct the official respondent Nos.1 to 3 to produce their minor daughter Salma from the illegal custody of respondent No.4 Shameem (petitioner No.1 of CRWP-11123-2023). It was contended by them that their daughter was a minor, who had been abducted by respondent No.4- Shameem, regarding which FIR No.227 dated 07.11.2023 had been registered at Police Station Partap Nagar (Khizrabad), District Yamuna Nagar, for commission of offences under Sections 363 & 366-A of the IPC. It was further contended that despite lapse of more than a week from the date of registration of the FIR, the investigating agency had failed to trace the whereabouts of the detenue nor had taken any action against respondent No.4. Prayer was accordingly made to issue the writ of habeas corpus to produce Salma from the illegal custody of respondent No.4 and to hand over her custody to the petitioners.

3. Respondent No.4 in CRWP-11123-2023 i.e. Shameem opposed the petition and filed reply, wherein he referred to Section 2 of the Majority Act besides Section 2 of The Prohibition of Child Marriage Act, 2006 and contended that a Muslim girl after attaining the age of puberty, cannot be treated as minor under The Prohibition of Child Marriage Act, 2006 and as respondent No.4-Shameem had contracted Nikaah with the daughter of the petitioners Salma i.e., alleged detenue, so he (respondent N:4 Shameem) was the natural guardian of his wife and therefore, petitioner deserves to be dismissed. He also referred about CRWP-11190-2023 filed by him along with his wife Salma for seeking protection to their life and liberty.

4. Counsels for all the sides have been heard and their contentions considered. Paper book also perused.

5. The sole question, in the facts and circumstances of the case, is that whether Shameem and Salma, the petitioners in CRWP-11190-2023 deserve to be given necessary protection qua their life and liberty; and further, whether the custody of petitioner Salma should be handed over to her parents Iqbal and Rashida i.e., petitioners of CRWP-11123-2023.

6. It is an undisputed fact that the Petitioner- Shameem is 23 years of age, whereas petitioner- Salma, with her date of birth being 03.05.2007, is more than 16 years 06 months of age. Since Nikaah (marriage) was performed by them on 08.11.2023, it means that on that date, Salma was above 15 years of age. As already observed that both the petitioners belong to Muslim religion and have performed marriage as per Muslim Rites and Customs.

7. Prohibition of Child Marriage Act, 2006 was enacted to provide for the prohibition of solemnisation of child marriages. Section 2 of this Act provides definitions of some of the relevant and important terms, as under:

“(a) "child" means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) "child marriage" means a marriage to which either