NEW DELHI: The Supreme Court on Friday agreed to examine the National Commission for Protection of Child Rights' plea challenging the Punjab and Haryana High Court order that a Muslim girl can marry a person of her choice after attaining puberty.
The top court bench of CJI DY Chandrachud and Justice PS Narasimha held that the high court judgment, which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law, should not be relied on as a precedent in any other case.
The age of attaining puberty is 15 years according to applicable personal laws in Islam.
The order was passed in a batch of pleas by the NCPCR challenging the Punjab and Haryana High Court's ruling.
Apprising the apex court bench of the issue, Solicitor General Tushar Mehta for the apex child rights body asked, "Can there be a defence of personal law? Can you plead custom or personal law as a defence against a criminal offence?"
Contending that other High Courts might also cite the Punjab and Haryana High Court's observations, the SG also sought a stay of the observations.
Considering the SG's submissions, CJI DY Chandrachud said, “What will happen is, the moment we grant a stay - she may be restored to her parents. We’ll issue notice and we will say that in meantime the judgment will not be cited.”
Accordingly, the bench in their order said, “We are inclined to entertain the plea. Issue notice to the respondent. Pending further orders, HCs judgement shall not be relied upon in any other case.”
Earlier, a bench of Justices SK Kaul and AS Oka also appointed Senior Advocate Rajshekhar Rao as an amicus. It had also refused to accede to Solicitor General Tushar Mehta’s request for staying HC’s observation on the ground that other HCs may consider by remarking as to how would it be followed by other HCs when SC was seized of the issue.
The Punjab and Haryana High Court had passed the order while hearing a habeas corpus petition filed by a 26-year-old man against the detention of his 16-year-old wife in a children's home in Panchkula.
It said, “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.”
The High Court had observed that 15 years is the age of puberty of a Muslim female, and she can on her own willingness and consent marry a person of her choice after attaining puberty. Such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006, it said.
(With PTI inputs)