Published On: Fri, Jan 13th, 2023

SC directs not to treat Pun & Har HC judgment allowing minor Muslim girl to marry as precedent

New Delhi: The Supreme Court on Friday said that the judgment of the Punjab and Haryana High Court, which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law, should not be relied upon as a precedent in any other case. The top court made these remarks while issuing notice in a special leave petition filed by the National Commission for the Protection of Child Rights challenging the judgment.

Mehta expressed concerns about using personal law as a defence for crimes under the protection of Children from Sexual Offenses

The petition was filed on the ground that it goes against the Protection of Children from Sexual Offences Act which prescribes 18 years as the age for sexual consent. A bench comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha passed the interim order.

Solicitor General of India Tushar Mehta appeared for the NCPCR. Mehta expressed concerns about using personal law as a defence for crimes under the protection of Children from Sexual Offenses (POCSO) Act.

“Girls who are 14,15,16 are getting married. Can there be a defence of personal law? Can you plead custom or personal law for a criminal offence?”, the SG submitted. “We are on the question if the marriage will be valid at all in the face of criminal law existing and the POCSO Act,” The Solicitor general said.

CJI Chandrachud agreed to issue a notice in the matter and tag it along with the earlier similar petitions filed by the NCPCR against other High Court judgments which have taken the same view. The SG requested the bench to stay the judgment in the meanwhile.

“We are inclined to entertain these writ petitions. Issue notice. Pending further orders, impugned judgment (of HC) shall not be relied upon as precedent,” the bench stated.

All petitions have been tagged with the petition in which SC is examining the plea filed by NCPCR for Uniform marital age for Muslim women. The apex court had recently issued notice to the Centre on a plea filed by National Commission for Women seeking uniform marital age for Muslim women.

Notably, last year on October, the High Court has passed the order hearing a habeas corpus petition. The plea was filed by a 26-year-old man against the detention of his 16-year-old wife in a children’s home in Panchkula. As per personal laws in Islam, the age of attaining puberty is 15 years.

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