A girl who has attained the age of puberty could marry without consent of her parents and has the right to reside with her husband even when she was less than 18 years of age as per Mohammedan Law, the Delhi High Court has said.
Justice Jasmeet Singh made the remarks while hearing a petition by a Muslim minor girl and a Muslim man who eloped to get married as per religious customs in Bihar.
The couple sought protection from the court as well as directions to ensure that nobody separates them from each other stating that the parents of the girl, who are opposed to the marriage, have registered a case of kidnapping against the man.
Justice Singh took note of a status report filed by the prosecution where it stated that the couple were living with each other as husband and wife and that the girl was now pregnant.
The status report further said that the girl was 15 years and five months on the date of the marriage on March 3, 2022. On April 27, the girl was found by the police and as per the directions of the Child Welfare Committee (CWC), she has been kept at Nirmal Chhaya Complex in Hari Nagar.
July 6 order
Justice Singh drew the attention to a July 6 order passed by the judge himself in a separate case in which he held that the Protection of Children from Sexual Offences (POCSO) is an Act for protection of children below 18 years from sexual abuse and exploitation and will apply to Muslim law.
Justice Singh said the facts of the previous case was different from this one. He said in the previous case there was no marriage between the girl and the accused.
“In fact, in that case the sexual relationship was established prior to marriage. Post establishing the physical relationship, the accused had refused to marry the prosecutrix. It was on this basis that POCSO had been applied to the facts of that case.,” the judge said.
Justice Singh said that the physical relationship in the previous case was made on the pretext of marriage, and hence, it was a case of sexual exploitation of a child below 18 years.
“On the other hand, in the present case, it is not a case of exploitation but a case where the petitioners were in love, got married according to the Muslim law, and thereafter, had physical relationships,” the court noted.
“Hence, the petitioners being lawfully wedded to each other cannot be denied the company of each other which is the essence of the marriage. If the petitioners are separated, it will only cause more trauma to the petitioner No. 1 [gir] and her unborn child,” the court said while allowing the girl to return back to her husband’s company if she so desires.
“The aim of the state here is to protect the best interest of petitioner no.1. If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter private space of the petitioner and separate the couple. The doing of the same will tantamount to encroachment of personal space by the state,” the court said.