Citing Muslim Personal Law Delhi Court Justifies Marriage Of A 15-Yr-Old Girl
March 22nd, 2017
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A Delhi special court has acquitted an 18-year-old boy who married a 15-year-old girl.
The case was the product of an FIR filed under sections of Prevention Of Children From Sexual Offences (POCSO) Act. The FIR was based on a complaint from the girl’s mother, who alleged that the man enticed her daughter into marriage. The man was charged with rape, kidnapping, and sexual assault. Both the boy and the girl are Muslim and the verdict was delivered by Additional Sessions Judge Vinod Yadav last week.
The court acquitted the man on grounds that “[the minor girl’s] personal law clearly authorizes her to go ahead and get married at that age.” On the issue of enticement, the court stated: “It appears that prosecutrix was willing and consenting party and it seems that everything had happened with her sweet will.” However, the judge noted that though the “child [was] not capable of giving consent for her marriage and consummation thereof” but “her personal law clearly authorizes her to go ahead and get married at that age.”
The judgement highlights the conflict between Indian civil law and personal laws – both of which are legal and prevalent in the country. With regard to the conflict between Muslim Personal Law and the POCSO Act, the court stated, “It is a fact that under the Muslim Personal law with which the accused and prosecutrix are governed permits them to contract a valid marriage provided the prosecutrix had attained the age of puberty.”
The Protection of Children from Sexual Offences Act (POCSO)
The Protection of Children from Sexual Offences Act, 2012 (POCSO) was passed to effectively address sexual abuse and sexual exploitation of children in India.
The Act defines a child as any person below eighteen years of age. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
The Act also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible. The Act also provides for mandatory reporting of sexual offences.
Marriageable age in India
Marriageable age (or marriage age) is the minimum age at which a person is allowed by law to marry, either as a right or subject to parental or other forms of consent. In India, the marriageable age for men is 21 while the same for women is 18.
However, these limits have been strained, debated or plainly not followed. While the Law Commission has proposed to equalize the marriage age for males and females to 16, the Delhi High Court declared in 2012 that a Muslim woman can marry at 15 “once she attains puberty”. Additionally, child marriage continues to be a big problem in India, especially in rural areas.
The Uniform Civil Code debate
Unlike most democracies in the world, India does not have a uniform civil code. Personal laws (family laws) are still legal in India. Family laws in India are different and varied, prescribing Hindu law for Hindus and Islamic law for Muslims. Since independence, efforts have been made to modernise various aspects of personal laws and bring about uniformity among various religions. Recent reform has affected custody and guardianship laws, adoption laws, succession law, and laws concerning domestic violence and child marriage.
The question of whether India should adopt a Uniform Civil Code (UCC) is a hot topic in the country. Religious leaders protest that a UCC would decimate the role of religion in public life while secularists argue for a UCC precisely because it would decimate the role of religion in public life.
The debate surrounding the UCC dates back to the colonial era. While the British applied a common criminal code for all, personal religious laws were allowed in case of personal matters. The latter laws were to be applied by the local courts when dealing with personal disputes between people of the same religion. Even amongst the Hindus, different rules were used in different regions and for different castes. The Shariat law of 1937 was passed to govern the personal matters of all Indian Muslims would be governed by Islamic laws.
Personal laws in India
At the time of drafting our constitution, there were extensive debates regarding these personal laws. For some, they were too divisive. They argued that a UCC would help in constructing a national identity and curb discrimination based on caste and religion. But the proposal was also resisted on the grounds that it would destroy the cultural identity of religious denominations.
Subsequently, a compromise was reached. The UCC was placed under the Directive Principles, which the state shall endeavor to achieve but which is non-binding. Quite similarly, during the debates over the Hindu Code Bills (a set of common laws governing personal matters for all Hindus), large segments of the Hindu population protested and held rallies against them. They argued that practices such as divorce were prohibited by Hinduism and that for a Hindu the institution of marriage is holy and incontrovertible. They were also against granting equal property rights to women, fearing the concept of a joint family might crumble because of it. These people saw themselves being singled out as the only religious community whose laws were to be reformed.
However, Prime Minister Nehru saw such codification as necessary to unify the Hindu community, which he saw as a first step towards unifying the nation. Nehru split the Code Bill into four parts: the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act. These were met with significantly less opposition and were passed in the mid-1950s.
Indian Christians (except in the state of Goa) are governed by the Indian Christian Marriage Act 1872 and their divorce-related matters fall under the Indian Divorce Act of 1869.
The Logical Indian take
In the case that is the subject of this article, the judge in question rightly said, “A clear conflict is apparent between the Muslim Personal Law and the provisions of the Act with regard to the marriage of a Muslim girl. The Act treats her as a child not capable of giving consent for her marriage and consummation thereof whereas her personal law clearly authorizes her to go ahead and get married at that age. The Parliament probably did not foresee the aforesaid issue.”
The law cannot be highly ambiguous or applicable only to certain sections of the country. Moreover, if the application of a law is determined by religion, that would beat the very essence of secularism.
The issue of a Uniform Civil Code is highly controversial and partisan. It doesn’t have to be so. The prevalence of personal laws has made a court see justifiable reason for validating the marriage of two minors – of two children. The law clearly states that no girl below 18 and no boy below 21 can get married. If there is any law that is in direct contradiction of this, it is an unjust law. And an unjust law is no law at all.
The UCC debate has been raging since independence. It has been raging for long enough. It is high time that we resolved it and adopted a progressive UCC so as to ensure that all Indians are subject to the same civil law