The Delhi High Court upholds the marriage of a minor Muslim girl and allows her to stay with her husband
By Team FI
The Delhi HC ruling that a minor Muslim girl, if she has attained puberty, can marry as per her choice, has sparked a debate in the community with activists being upset over this reduction in marriageable age of Muslim girls.
The judgment was passed on a case of alleged kidnapping and forced marriage of a 15-year-old Muslim girl. In March 2011, the girl’s mother filed a habeas corpus petition at the Delhi High Court alleging that her minor daughter was kidnapped by a youth and forced into marriage. In her petition she alleged that she had filed an FIR, but the police did not take any action.
However, the girl deposed to the court on April 18th 2012, that she had voluntarily gone with the man of her choice and married him. The girl also told the Court that she did not wish to go back to her parents and wanted to stay with her husband.
Accepting the plea of the 16-year-old, a bench of Justices S S Ravindra Bhat and S P Garg ruled that “This Court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18….”.
The presiding bench citing various Supreme Court judgments on the issue of minor Muslim girls’ marriage said “….a Muslim girl who has attained puberty, i.e. 15 years, can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e 18 years.”
While the All India Muslim Personal Law Board has welcomed the decision, women’s rights activists have begun voicing protests over the ruling.
“This is regressive, why should Muslim women/girl be separate from other women in the eyes of law? The law in India stipulates that the eligible age for marriage for women as 18 and one wonders what is this ruling implicating to? Isn’t it time we have family laws which have nothing to do with any religion?,” asks Sakina Bahora, an activist living in Mumbai. She, however, finds it problematic when parents file cases against their children if the marriage is taken place without parental consent as it happened in this case. “One must not forget that in most cases, it is parents who force their children into early marriage,” says Sakina Bahora.
Noorjehan Safia Niaz of the Bharatiya Muslim Mahila Andolan (BMMA) does not consider this ruling positive either. She states that this ruling only strengthens the BMMA’s demand for a codification of the Muslim Personal Law. “If we have a codified Muslim law set in place, we will not have to deal with these sorts of contradictory interpretations and rulings.”
Ammu Abraham of Women’s Centre, Mumbai, finds it quite arbitrary that the bench has counted the age of puberty as 15 for all Muslim girls in India. “How does anyone fix puberty, on the basis of religion? One can medically fix an average age of puberty for girls, in a country or a region, though it is better to give an age range rather than one fixed year. But can that be fixed on the basis of Sharia?” she questions.
Ammu feels that in this particular case one is sympathetic to the girl who has chosen to rebel against the tradition of parental control and has left her home to be with the man she loves. “Of course, the law does not want her to suffer the humiliation of being deserted after she has eloped with a man. It is hard do justice in such situations, supporting parental power entirely against the will of a young girl goes against my grain”
In India, the practice of child marriage is not exclusively to Muslims. A report (2007-2008) published by UNICEF states that 40% of the world’s child marriages take place in India and 43% percent of women aged 20 to 24 get married before the age of 18. India abolished child marriage in 1929 and as per the Special Marriage Act, 1954, eligible age for marriage is 21 for men and 18 for women.