IMPORTANT POINT
Prohibition of Child Marriage Act, 2006 supersedes Muslim personal law.

ORDER

Kerala is known for its 100% literacy. But, it is sad to hear that, even after the enactment of the Prohibition of Child Marriage Act decades ago, there are allegations of Child Marriage in Kerala. The saddest thing is that the petitioners herein are trying to justify the alleged child marriage stating that as per Mohammedan Law, 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.

2. The prosecution case as per Annexure-I final report and Annexure-II FIR is like this : Integrated Child Development Scheme Officer (ICDS Officer), Vadakkencherry submitted a complaint to the Circle Inspector of Police, Vadakkencherry informing that a child marriage happened within the jurisdiction of ICDS Alathur Additional. The ICDS Officer relied on a complaint submitted by one K.Syed Muhammed in which it is stated that a child marriage happened on 30.12.2012. Based on this information and complaint, Crime No. 490/2014 was registered by the Vadakkencherry Police Station alleging offences punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006 (for short ‘Act 2006’). Annexure-II is the FIR. After investigation, Annexure-I final report is filed by the investigating officer against five accused, who are the petitioners in this Crl.M.C, alleging offences punishable under Sections 10 and 11 of the Prohibition Act, 2006. The prosecution case is that on 30.12.2012, the 1st accused 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. Therefore, it is alleged that all the accused committed the offences. The petitioners who are the accused in Annexure-I final report submitted that even if the entire allegations are accepted, no offence under Sections 10 and 11 of the Prohibition Act, 2006 is attracted and therefore, the continuation of the proceedings is an abuse of process of court. Hence, this Crl.M.C. is filed.

3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.

4. Considering the importance of the question to be decided in this case, this Court appointed Adv. K.M.Firoz as Amicus Curiae and requested him to address argument on the legal issue.

5. The counsel for the petitioners raised two contentions. The 1st contention is that the parties involved in the above case are following Islamic faiths. Accordingly, a marriage below the age of 18 is not a void marriage. It is submitted that a Muslim girl enjoys a religious right known as ‘Khiyar-ul-bulugh’ or ‘Option of Puberty’. According to the petitioners, the Mohammedan Law recognises and accepts such marriages leaving the marriage voidable at the instance of married girl on her attaining majority. It is submitted that every child marriage, whether solemnized before or after the commencement of the Act 2006, is voidable only at the option of the married girl. It is also submitted that even as per the secular law, such marriages are not void ab initio, but only voidable at the option of contracting parties. 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. Hence, it is submitted that, when the Muslim personal law permit a girl to marry on attaining puberty, Act 2006 curtail that right and prescribe punishment for the same. According to the petitioners, the same is illegal and Muslim personal law prevail over Act 2006. Therefore, it is submitted that the offence alleged against the petitioners is unsustainable. It is also submitted that there is a delay in filing the complaint and that shows that, it was filed with malafide intention. Therefore