SC to examine plea against HC verdict that minor Muslim girl can marry person of choice — what's the case?

While hearing the case in 2021, the Punjab and Haryana High Court had said a Muslim girl is free to marry anyone of her choice once she attains puberty.

"The law is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book, ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, Petitioner No.1 (girl) being 17 years of age, is competent to enter into a contract of marriage with a person of her choice...Thus, Petitioner No. 1 is of marriageable age as envisaged by Muslim Personal Law," the court had said in a statement, as per reports.

The judge observed that merely because the petitioners got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution.

The high court had said the issue for consideration in the case was not with regard to the validity of the marriage but to address the apprehension raised by the petitioners of danger to their life and liberty.

It had directed the Senior Superintendent of Police, Pathankot, to decide the representation of the petitioners and take the necessary action as per law. "The court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed," it said.

This verdict was challenged by the National Commission for Protection of Child Rights (NCPCR) before the Supreme Court. As per an Economic Times report, the apex child rights body said the ruling was violative of not just the Prohibition of Child Marriage Act, 2006, but also the Protection of Children from Sexual Offences (POCSO).

"The ruling is indirectly affirming a child marriage and not only violating existing laws," the NCPCR was quoted as saying.

Meanwhile, in August 2022, the Delhi High Court had also ruled that as per the Muslim Personal Law, a minor girl who has attained puberty can marry without her parents' consent and has the right to reside with her husband, India Today reported.

The Delhi High Court had reportedly rejected arguments that the POCSO Act might be applied in such cases and said the act's objective is to ensure that children are protected against exploitation.

"It had further ruled that in such cases when physical intercourse happens only after the wedlock, offences under the Protection of Children from Sexual Offences Act (POCSO Act) will not be attracted," Bar and Bench said.

Solicitor General Tushar Mehta, appearing for the NCPCR, submitted that this is a "serious issue" and sought a stay of the observations in the judgment. The Supreme Court said it will examine the issue and posted the matter for hearing on November 7.