Legal experts have condemned a recent circular issued by Local Administration Principal Secretary directing civic bodies to register marriages of Muslim men below 21 years and women below 18 years but over 16 years.
The circular was issued in view of a slew of complaints from various parts of the State that marriage registrars under the Kerala Registration of Marriage Rules in local bodies were refusing to issue marriage certificates to Muslim women and men who had not attained 18 years and 21 years respectively.
Kaleeswaram Raj, High Court lawyer and legal commentator, said the circular was issued “to woo the orthodox section of the Muslim community”.
He said the effect of Prohibition of Child Marriage Act, 2006 on Muslim Personal Law was “a grey area where different High Courts have taken different views”. Karnataka and Bombay High Courts had said the 2006 enactment would override the Muslim Personal Law. This means that if a Muslim woman below 18 years gets married, it would be against the provisions of the enactment. However, the Delhi High Court in the Tahra Begum vs State of Delhi case had held that a Muslim girl who had attained puberty could marry and “such a marriage will not be void, but only voidable”. “The matter requires to be clarified either by the Supreme Court or by the Parliament,” he said.
Mr. Raj said the government ought not to have issued the circular with a view to “institutionalise child marriage in any community”. “The secular government should try to discourage it. Unfortunately, the circular is an incentive to the orthodox practice which no egalitarian society can endorse,” he added.
Sivan Madathil, High Court lawyer, said the circular went against the provisions of the Prohibition of Child Marriage Act.
He said the Muslim Marriage Act did not allow marriage of men and women below 21 years and 18 years respectively. The Constitution allowed citizens to follow their own customs, personal laws and religious beliefs, but this did not mean that these customary rights or personal laws should override other statutory rights. The present circular was issued to appease a section of the Mulsim community. Mr. Madathil said youths belonging to the community did not approve of such steps.
He added that a personal law or a community law could not override the statutory law especially regarding the marriage of a minor girl. The Prevention of Child Marriage Act was applicable to all communities, including Muslims, he said. He also pointed out that the circular violated the provisions of the Special Marriage Act, 1954.
