February 11, 2021 10:09:31 am
While disposing of a plea for protection of a Muslim couple, wherein the man is aged 36 and woman is 17, the Punjab and Haryana High Court has held that the woman, being over 17 years of age, is competent to enter into a contract of marriage with a person of her choice.
The petitioner couple, stated in their plea that they fell in love about two years ago and decided to marry. Both petitioners solemnised their marriage on January 21, 2021, as per Muslim rites and ceremonies.
Advocate Jyotika Panesar, and Karan Singh Rana, counsels for the petitioner contended that this is the first marriage of both petitioners. While relying upon decisions by the HC in ‘Kammu versus State of Haryana and others’ in 2010, ‘Yunus Khan versus State of Haryana and Others’ in 2014, and ‘Mohd. Samim versus State of Haryana and Others’ in 2019, the counsels contended that in Muslim law, puberty and majority are one and the same and there is a presumption that a person attains majority at the age of 15 years. It was further contented that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere.
It was thus further contended that the life and liberty of the petitioners is in grave danger at the hands of respondent, family members of the petitioner, and for which they have also moved a representation to the SSP, Mohali, but no action has been taken.
The bench of Justice Alka Sarin, after hearing the arguments, held, “This court has taken note of the judgments cited on behalf of the petitioners and also the fact that the girl in the instant case i.e. petitioner no. 2 is aged more than 17 years. In the case of Yunus Khan (supra), it has been noted that the marriage of a Muslim girl is governed by the personal law of the Muslims.”
“The law, as laid down in various judgments cited above, 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’, the petitioner no. 2 being over 17 years of age, was competent to enter into a contract of marriage with a person of her choice. Petitioner no. 1 is stated to be more than 36 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law,” said Justice Sarin.
Thus the bench stated that merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution. While disposing of the petition, the bench directed to the SSP Mohali to decide the representation of the petitioners and take necessary action as per law.
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