A Muslim girl can marry anyone, even if she is under 18 years of age, but has attained puberty, ruled Punjab and Haryana High Court. The High Court bench gave the verdict last month while granting protection to a 17-year-old Muslim girl and her 36-year-old husband.
Even though the girl has not completed 18 years of age, the marriage is considered to be legal as both are of Marriageable Age under Muslim Personal Law, observed the bench of Justice Alka Sarin
The petitioning couple put forth the argument that, “In Muslim law puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years.”
The petitioners further mentioned that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere. Hence, the majority of the argument was based on the assumption that the Muslim law of Puberty and Majority is one and the same.
The bench heard the petition and considered the case to go under the Muslim Personal Law. The court stated, “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 of India.”
In India, the legal age of marriage for a girl is 18 years and for a boy, it is 21 years, as mentioned in the Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006.
The Muslim law, which, recognises the right of adults to marry by their own free will, has the following conditions for a valid Muslim marriage:
- Both the individuals must profess Islam
- Both should be of the age of puberty
- There has to be an offer and acceptance and two witnesses must be present
- Dower and Mehar is paid to the wife
- Absence of a prohibited degree of relationship.
Punjab and Haryana HC also recently ruled that a Muslim man can marry another woman without divorcing the first wife. However, a Muslim woman needs to divorce her husband first, to be able to marry again.
“A Muslim lady has to divorce her first husband, either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939, before contracting a second marriage. In fact, the alleged marriage itself between petitioner no.1 and petitioner no.2 would be illegal in as much as this marriage has been contracted without the petitioner no.1 being legally divorced,” said Justice Sarin in her ruling. Read more on that here.
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