September 29, 2018 11:44:17 pm
Directing the Nuh district’s Protection Home to release a 16-year-old Muslim girl from custody, the Punjab and Haryana High Court has allowed her to stay with her husband and said the Muslim couple’s marriage cannot be said to be invalid, while referring to the Muslim law.
“As per the Text Book of Mohammedan Law by Aqil Ahmad, ‘Puberty and majority’ in the Muslim law are one and the same thing…,” the judgment passed by Justice Daya Chaudhary on September 26 reads.
The judgment further reads, “A boy or girl, who has attained puberty, is at liberty to marry anyone he or she likes and the guardian has no right to interfere.”
The girl was more than 15 years of age at the time of her marriage in June 2018 and “strongly objected” when the court had asked her whether she wants to stay with her parents.
“The detenue is entitled to remain with the petitioner, being his wife. In-charge, Safe House (Protection Home) at Nuh, District Nuh, is directed to complete all formalities and
release the detenue,” reads the order.
Her husband had filed a habeas corpus plea in the High Court in June after he was not allowed to meet her in the Safe House.
The couple had also approached the High Court in June for police protection after the marriage. They were residing in Nuh Protection Home until the husband was taken into custody by the police on June 12 in the case registered against him by the girl’s family for kidnapping a minor.
He was not allowed to meet her after being released on bail by the trial court and approached the High Court regarding it.
His counsel argued before the court that their marriage was governed by Muslim law and provisions of Prohibition of Child Marriage Act, 2006 are not applicable on them.
“The Muslim Personal Law (Shariat) Application Act, 1937 is a special Act, whereas, the Prohibition of Child Marriage Act, 2006, is a general Act. The general provisions would yield to specific provisions. This is a well-settled proposition of law. The special Act would have predominance over the general Act,” the judgment passed by the High Court reads.
Justice Chaudhary, in the judgment, further said that the girl is 16 years of age and marriage without consent of father “cannot be said to be invalid or otherwise” as consent of father is necessary in cases where the girl is less than 15 years of age.
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