The Delhi HC ruling giving girls below 18 the right to decide on marriage needs deeper analysis
By Geeta Ramaseshan
The recent Delhi High Court judgment where the court upheld the marriage of a 16-year-old girl has sparked off a debate amongst lawyers and women’s rights activists in India.
I have few concerns about the judgment and do not consider it as a great victory of the right to choice of a teenaged minor girl. The judgment does not lay down any new law as all systems do not make a difference between arranged marriages and marriages of choice. Individual judgments have however chosen to make it an issue.
It is the inter play of IPC and personal laws and their use in controlling and persecuting sexual autonomy against minors (and adults) that is problematic.
The situation is not unique to Muslim law alone even though the judgment has discussed the right to choice on option of puberty – which is that Islam gives women right to choice if they have attained puberty.
As a lawyer, I have come across cases in the Madras High Court of Hindu marriages where the HC permitted minor girls to rejoin their husbands instead of sending them to “protective custody” as is the normal practice. But what I find disturbing in this particular case is that there are no facts detailed in the judgment. For example, there is nothing to indicate in the judgment about the 16-year-old’s husband’s age, employment, background – nothing to indicate whether the HC sought an assurance from him, nothing to indicate whether the court was convinced about her decision, whether her consent was really free and so on.
These are all relevant factors in determining habeas corpus even in the cases cited in the judgment. Instead by pushing the “observation” of the girl to the child welfare committee under the Juvenile Justice Act, whose mandate is to address the rights of children in need of care and protection, the court has complicated the issue further. It is also important for us to ask the question, would the court have taken the same position if the girl expressed her intention to live with her partner and not marry him? In any event the criminal case of kidnapping and theft filed by the mother would still be pending.
Again the language of the judgment in using the term “ Mohammedan law “, which is a colonial construct instead of Islamic law, and the reliance on Mullah in judgments, which has been critiqued by many Islamic jurists, is a problem. The Dissolution of Muslim Marriages Act of 1939 makes the “option of puberty” a ground for divorce if exercised before eighteen years – if the girl was married before fifteen years provided the marriage was not consummated (a ground that is found in the Hindu Marriage Act without the stipulation on consummation)
So the judgment only reiterates what even statutory law recognises as an age of valid marriage. Nevertheless, to address the validity of Muslim marriages of minors and permit it as a matter of choice requires a lot of analysis, which is lacking in the judgment. However, as Flavia Agnes points out, the provocative posturing discussions on the judgment, in relation to Muslims, are indeed a matter of great concern.
Under all personal laws, except under the Special Marriage Act, child marriages are legal. A minor married girl is not completely independent under the law, as again under all personal laws, the husband becomes her guardian on marriage. Under Islamic Law and under the Indian Christian Marriage Act, a minor can marry with the permission of the guardian. Some judgments have even looked into the Guardian and Wards Act of 1890 and The Hindu Minority and Guardianship Act of 1956 to consider the “guardianship” of a married minor.
In the 60’s, the Supreme Court in S Varadarajan vs State of Madras (AIR 1965 SC 942) took note of the educational background of a woman college student who was seventeen years when she left the home and went to the sub registrar’s office to marry her partner. This led to a criminal case being filed against her partner and friends on charges of kidnapping from lawful guardianship by her father.
The observations of the court – “When the minor leaves her father’s protection knowing and having the capacity to know the full import of what she is doing and voluntarily joins the accused person, the accused cannot be said to have taken her away from keeping of her lawful guardian” – is a progressive precedent that actually decriminalised the right to choice, with reference to the offence of kidnapping from lawful guardianship, in cases where the evidence showed that the woman was able to make a calculated and clear judgement. This judgment is not frequently used to quash proceedings even though it is a binding precedent.
I mention this because there are many complex situations. There are situations where the offence of kidnapping against lawful guardianship is used as a tool to harass, when a girl makes a choice especially in inter caste/inter-religious relationships. This has been used even on adult women who have been unable to prove their age. There are also situations where a young girl could be trafficked on sham marriages.
In the context of the judgment we have to be cautious not to advocate early marriages or even marriages on the instance of the minor or their guardian. What is required is addressing behaviour among young people in various appropriate ways and to break the whole silence around intimacy and sexuality. Criminal law cannot really address complex social relationships and it is important to discuss all these concerns in a more nuanced fashion in the context of age.
Geeta Ramaseshan is an advocate practising in Chennai and a legal scholar. She is a guest faculty at the Asian College of Journalism, Chennai where she teaches Media, Law and Society.