In a significant development, the Gujarat High Court has ruled that in cases of minor Muslim girls, the Prohibition of Child Marriage Act, 2006, will prevail over the provisions of Muslim personal laws. The court, while quashing an FIR of rape and abduction of a minor girl by the petitioner who married her, ordered the police to probe the case under the provisions of Child Marriage Act. The single-bench of justice J B Pardiwala held that Child Marriage Act was a “Special Act” and it will override the provisions of Muslim Personal Law, Hindu Marriage Act or any personal law. The order states that the religion of the contracting party does not matter.
The verdict came when the court was hearing the case of a 17-year-old Muslim girl, who married a man 12 years older than her. Justice Pardiwala observed, “This, in my view, is nothing, but the lack of maturity, understanding and education on the part of the girl. Sixteen years is not an age for a girl to get married..Keeping this in mind, those who have not allowed to change the Muslim Personal Law, have done a great disservice to the community. At the same time, it is also true that as the social condition in the nation and throughout the world continues to change, the reality of life is that even without a code of personal law of Muslim insofar as marriage is concerned, child marriage is going into oblivion.”
The order add, “Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realised the evil consequences of getting a Muslim girl married at a tender age of 16 or 17 years.”
The court was hearing a petition filed by the accused, who is the husband, praying for quashing of an FIR filed against him under Section 366 (kidnapping, abducting or inducing woman to compel her marriage, etc.) and Section 363 (punishment for kidnapping).
He was also charged with an offence under Section 18 of the Prevention of Children from Sexual Offences Act, 2012. The FIR had alleged that the accused had kidnapped the 16-year-old daughter of the informant. It stated that the two were in love and that the accused kidnapped her from her lawful guardians.
The accused, on the other hand, had argued that the girl had left her parental home on her own volition and had decided to get married to the accused. Accordingly, nikah was performed and the duo started staying together as lawfully wedded husband and wife. The court, however, ruled that the case of kidnapping or rape would not hold because the girl had not “received a promise or assurance or any tempting offer from the applicant by virtue of which she was forced to leave her parental home.”
It directed the police to investigate it as a case under provisions of the Prohibition of Child Marriage Act, 2006, and file an appropriate report before the trial court to add Prohibition of Child Marriage Act, 2006, provisions in the FIR.
“After filing such report, the police shall proceed further in accordance with law and complete the investigation. The police, while investigating the FIR shall keep in mind Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006.
In the course of the investigation, if it is found out that a particular person had performed, conducted, directed or abetted the marriage (nikah), then according to Section 10, such a person would be an accused,” the order said.
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