New Delhi: Assam Police crackdown on child marriage in the state Arrested In the last two weeks, 3,047 people registered 4,235 cases and identified 6,707 accused.
Assam Chief Minister Himanta Biswa Sarma said in a tweet on Friday, “Child marriage is a social curse and we are determined to ensure that this evil practice is stopped.”
Child marriage is a social curse and we are determined to ensure that this evil practice is stopped. The arrests in Assam involve those accused and convicted of this crime and have not been made after verifying their religious affiliation. #AssamAgainstChildMarriage pic.twitter.com/jDLSqRFjUM
– Himanta Biswa Sarma (@himantabiswa) February 17, 2023
The statewide crackdown began on February 3 and those arrested have been booked under the Protection of Children from Sexual Offenses Act, 2012, (POCSO) and the Prohibition of Child Marriage Act, 2006 (PCMA).
According to reports, the state cabinet has Solved To book men who marry girls below the age of 14 under the POCSO Act and those who marry girls in the age group of 14-18 under the PCMA.
critics have alleged The action has a “communal design” and is directed against “religious minorities”.
This has reignited the debate on the uncertainty surrounding the legal age of marriage for Muslim women.
While the PCMA fixes the legal age of marriage at 18 years for girls and 21 years for boys, and the POCSO Act puts the legal age of consent at 18 years, Muslim personal law allows marriage if the boy and girl have attained puberty. Are. Puberty is considered at the age of 15.
The PCMA does not mention whether it bars all underage marriages that are otherwise permitted by any religious law. While High Courts have given conflicting judgments on the issue in the past, the Supreme Court is set to look into whether the age limit for marriage under the PCMA is higher than the age limit under the Muslim Personal Law.
What does Muslim law say about the age of marriage, and who sets the age of puberty? Does Child Marriage Protection Act apply to Muslim marriages? And what have the courts said about this?
ThePrint explains.
Read also: Humane approach should be adopted to deal with child marriage: Experts from Assam
What does the law say?
Prohibition of Child Marriage Act, 2006 Makes it an offense to promote or permit child marriage. Therefore, it is an offense if a parent or guardian promotes or permits a child marriage or negligently fails to prevent, or attends or participates in, a child marriage.
As per law, a child or minor is a girl child below the age of 18 years and a boy below the age of 21 years.
If a child marriage takes place, the law allows a petition to declare the marriage void when the child becomes an adult. But such a petition must be filed within two years of the child attaining majority.
The law provides for two years’ imprisonment for an adult male who marries a child, and for any parent or guardian who permits or officiates or participates in a child marriage.
Section 11 of the PCMA states that where a minor child is married, it shall be presumed that “the person in charge of such minor child has negligently failed to prevent the marriage”, and the accused must prove the presumption wrong.
The POCSO Act was enacted to protect children from the offenses of sexual assault, sexual harassment and pornography. The law criminalises all sexual acts between people under the age of 18, whether or not consent is present.
In other words, the law defines a child as a person below the age of 18 years and does not recognize their consent as valid.
Sexual assault is a non-bailable and cognizable offense under the POCSO Act – which means the police can arrest without a warrant.
What is the age of marriage for Muslims?
When ruling on the legal marriageable age for Muslim women, courts have traditionally referred to Muslim personal law. Book principles of muslim law What is generally considered to be an authoritative commentary on it by Sir Dinshah Fardoonji Mulla.
Article 195 The book talks about the potential for marriage and lists the various conditions that Muslim men and women need to satisfy in order to be able to marry each other.
According to the book, “every Muslim of sound mind who has attained puberty” can marry. It also states that even lunatics and minors, who have not yet attained puberty, “may be validly contracted in marriage by their respective guardians”.
Explanation attached to Article 195 says that when there is no proof, “puberty is deemed to be … on attaining the age of 15 years”. However, the marriage is considered void if it is solemnized without the consent of a Muslim of sound mind who has attained puberty.
Therefore, Muslims above the age of 15 can enter into a legal marriage according to their personal law.
However, the difference between Muslim personal law and laws such as the POCSO Act and the PCMA setting an 18-year cut-off date for marriage and sexual activity has led to confusion and uncertainty over the validity of marriage under Muslim personal law .
What have the courts said?
There have been conflicting judgments by various High Courts on the interplay between Muslim Personal Law and the PCMA.
For example, Karnataka High Court And this Gujarat High Court has held that in the case of minor Muslim girls, the 2006 Act will prevail over the provisions of the Muslim Personal Law.
The Gujarat High Court ruled in 2015 that the 2006 law was a “special Act” and would override provisions of the Muslim Personal Law, the Hindu Marriage Act, 1955, or any other personal law.
In November last year, the Kerala High Court also Government That “marriage under personal law among Muslims is not excluded from the purview of the POCSO Act”. The court emphasized that “if one of the parties involved in the marriage is a minor, irrespective of the validity of the marriage or otherwise, the offenses under the POCSO Act would be applicable”.
However, the Punjab and Haryana High Court Government 2018 that the provisions of the Muslim Personal Law will prevail over the provisions of the PCMA. It argued that puberty and majority are the same in Muslim law, and that “a boy or girl, who has attained puberty, is free to marry whomever he or she likes and the guardian has no right to interfere.” Not there”.
In another judgment dated February 2021, the Punjab and Haryana High Court had provided protection Marriage of a 17 year old Muslim girl to a 36 year old Muslim boy.
The court was hearing a petition filed by a Muslim couple, Shaukat Hussain and Fauzia, who tied the knot on January 21, 2021. The couple had approached the court saying that the girl’s family had objections to the marriage. This was, their lawyers said, “due to the difference in caste and the difference in age between the two”.
Giving protection to both, Justice Alka Sarin cited Muslim personal law to say that both the girl and the boy were of marriageable age under the personal law.
The Gujarat High Court also recognized the Muslim Personal Law. 2014 order and added: “According to the personal law of the Muslims, a girl is competent to marry as soon as she attains puberty or completes 15 years, whichever is earlier, without the consent of her parents”.
Supreme Court settle the case
Case after case has now reached the Supreme Court Order The pass was challenged by the National Commission for Protection of Child Rights (NCPCR) by the Punjab and Haryana High Court in September 2022.
The high court was hearing a habeas corpus petition filed by a 26-year-old man against the detention of his 16-year-old wife at a children’s home in Panchkula. The High Court had directed his release on the basis of Muslim Personal Law. The children’s home was directed to hand over her custody to her husband.
last month the Supreme Court said The decision of the High Court should not be treated as a precedent in any other case.
A bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha passed the interim order while issuing a notice on the NCPCR’s plea alleging that the High Court’s judgment goes against the POCSO Act, which provides for sexual consent. Sets the age at 18.
NCPCR has challenged a similar petition in the apex court one more order Passed by the Punjab and Haryana High Court in June last year, providing protection to a 16-year-old girl and a 21-year-old boy. Both were married according to Muslim customs.
The apex court had issued notice on this petition in October last year, whereas Appointment Senior advocate Rajasekhar Rao appointed as amicus curiae
Similar petitions have also been filed by the National Commission for Women. A total of five such pleas have been put together and will be heard by the Supreme Court.
‘Havoc in people’s personal lives’
Gauhati High Court on 14 February questioned In one such case, the POCSO Act was invoked in child marriage cases in Assam, granting anticipatory bail.
“What is POCSO (charge) here? Just because POCSO has been added, does it mean that the judge will not see what is in it? We are not exonerating anyone here. Nobody is stopping you from investigating,” Justice Suman Shyam was quoted as saying,
Several similar cases came up before the court on the same day. In another such case, the court said that “these are not cases for custodial interrogation”, and added “it is creating havoc in the private lives of people, be it children, family members and old people”. .
In another case, the court noted that section 376 (rape) of the Indian Penal Code was added to the FIR. The court termed the allegations as “strange”. Asked: “Is there an allegation of rape here?”
(Editing by Nida Fatima Siddiqui)
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