The Punjab and Haryana High Court has held that a 16-year-old girl is of marriageable age under the Muslim Personal Law and granted protection to a Muslim girl who had married a boy from her community.
A single-judge bench of Justice Jasjit Singh Bedi passed this order while hearing a petition filed by Gulam Deen and another.
This is a criminal writ petition under Article 226/227 of the Constitution for issuing a writ in the nature of mandamus directing respondents to protect the life and liberty of the petitioners at the hands of private respondents.
In this case, both the petitioners are Muslims. They fell in love some time ago and decided to marry. The date of birth of petitioner No1 (boy) is 14.05.2001 and that of petitioner No 2 (girl) is 01.01.2006 as per their Aadhaar Cards. Both the petitioners have solemnized their marriage on 08.06.2022 as per Muslim rites and ceremonies.
The counsel for the petitioners said this is the first marriage of the petitioners. The counsel further contended 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.
The counsel also said the life and liberty of the petitioners is in grave danger at the hands of respondents. The counsel said the petitioners have also moved a representation dated 09.06.2022 to the Senior Superintendent of Police, Pathankot. However, no action has been taken thereon. The counsel submitted that he limits his prayer in the petition and would be satisfied at this stage if directions are issued for deciding the said representation in a time-bound manner in accordance with law.
The Court has taken note of the judgements cited on behalf of the petitioners and also the fact that the girl in the case i.e petitioner No 2 is aged more than 16 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 Muslims, the Court noted.
The Court held,
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 16 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 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law.
In any event, the issue in hand is 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 at the hands of the private respondents and to provide them protection as envisaged under Article 21 of the Constitution of India. Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her life and personal liberty except as per the procedure established by law.
The Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. 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, the Court said.
In view of the above discussion and without expressing any opinion with regard to the veracity of the contents of the petition and the submissions made by the counsel for the petitioners, the Court disposed of the petition with a direction to the SSP, Pathankot (respondent No 2) to decide the representation of the petitioners dated 09.06.2022 and take necessary action as per law. It is, however, made clear that the order shall have no effect on any other civil or criminal proceedings, if any, instituted/pending against either of the parties.
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