Noting that there are some matters which should be left to the “ultimate wisdom of the Parliament”, the Supreme Court on Monday dismissed a petition seeking to enhance the minimum age of marriage of women from 18 years to 21 years, on par with men.
“We should not perceive that we are the exclusive custodians of the Constitution. The Parliament is equally the custodian of the Constitution. Parliament can amend the law to provide uniform marriage age. However desirable it is, the power to do so lies with the Parliament. There are some things which only the Parliament can amend and legislate… We cannot enact the law here,” Chief Justice of India D.Y. Chandrachud addressed petitioner-advocate Ashwini Upadhyay.
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Mr. Upadhyay had sought the court to strike down 18 years as the minimum age of marriage in statutory laws governing Christians, Parsis, Hindus and in the Special Marriage Act and Prohibition of Child Marriage Act.
But the court reasoned that if it struck down 18 years, then it cannot follow it up by legislating or amending the laws to make 21 years as the minimum uniform marriage.
“But 18 years is arbitrary,” Mr. Upadhyay said.
“So, then we strike it down. But can we legislate after that? That is for the Parliament to do,” Chief Justice Chandrachud, heading a three-judge Bench, responded.
Besides, striking down 18 years without being armed with the power to enhance the age of marriage to 21 years would prove counter-productive as it would inadvertently throw open the doors for allowing marriage of women less than 18 years of age, and even child marriage, which is a penal offence.
“Mere striking down of the provisions by which the age of marriage is fixed at 18 years will not serve the purpose since the striking down of the provisions will only result in there being no age of marriage for women,” the court reasoned in its order.
Mr. Upadhyay pointed out that Sharia law allowed age of puberty as the age of marriage, and hence there should be a uniform age of marriage across faiths.
“The petitioner seeks a legislative amendment to increase the minimum age of marriage to 21 years… It is trite law that this court in its exercise of Article 32 (writ jurisdiction) of the Constitution cannot issue a mandamus to the Parliament to legislate nor can it legislate in a matter entrusted to the Parliament or the State Legislatures to exercise power,” the court said in the order.
“If you strike down 18 years as the age of marriage, it will automatically become 21 years,” Mr. Upadhyay claimed.
However, he could not show any Sections of any law which backed this claim when the court asked him to do so.
“Do not make a mockery of Article 32,” Chief Justice Chandrachud told him.
Mr. Upadhyay, in a disgruntled manner, said the apex court had transferred the case from the Delhi High Court and now had got it dismissed.
“We are here to do our duty under the Constitution. We are not here to please you nor are we here to please any sections of the polity. Please understand that. So don’t give us these gratuitous comments on what you feel about us. This is not a political forum,” Chief Justice Chandrachud lashed out at him.
