NEW DELHI: The Supreme Court on Monday decided to consider a plea by National Commission for the Protection of Child Rights, questioning the validity of a Punjab and Haryana High Court's judgement that allowed a 16-year-old Muslim girl to enter into a valid marriage under the Muslim Personal Laws.
The HC had held a Muslim girl after obtaining puberty or of being 15-year of age can contract marriage.
Appearing for the child rights panel, Solicitor General Tushar Mehta submitted before a bench led by Justice Sanjay Kishan Kaul and also comprising Justice Abhay S Oka, it is an important issue as to whether the court pass an order against the penal provisions.
The top court said it would issue notice to the state and the others. It also appointed senior advocate Rajshekar Rao as amicus curiae in the matter.
Mehta also said he was against the protection granted to the Muslim couple.
It was submitted before the top court that the HC's judgment would have serious repercussions on the ban of child marriages and also the POCSO Act.
"How will anybody follow this judgement when we are saying we will examine the issue. Let us hear the amicus," the bench said.
Mehta also sought stay of the two paragraphs of the HC's order.
The bench, however, said it would hear the matter and posted it for consideration on November 7.
The NCPCR approached the top court against June 13 order by a single judge bench of Jasjit Singh Bedi, which said the marriage of a Muslim girl is governed by the personal law of the Muslims.
The plea claimed the order essentially allowed a child marriage in violation of the Prohibition of Child Marriage Act, 2006. The Protection of Children from Sexual Offences Act stated a gril below 18 year of age cannot give consent.
"As per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage, and puberty is presumed, in the absence of evidence, on completion of the age of fifteen years," the HC had said.
"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," it had said.
In its plea, the NCPCR through advocate Swarupama Chaturvedi said the High Court has erred in ignoring the fact that sexual intercourse with a minor girl below the age of 18 years, is sexual assault as per POCSO Act ancl this legal position cannot be change due to marital status of the child.
The HC's judgement leads to endorsing the child marriage, which is illegal in India because POCSO Act applies to everyone, it contended.
"There are differences of opinion in between among High Courts on the issue of legality of the marriage of the 16 years of the age and the applicability of the POCSO Act and therefore, indulgence of this court is necessary to settle the law to prohibit the child sexual abuse under a secular law," it said.
"The High Courl was not justified in adjudicating upon the matter partially and without considering other statutory laws applicable on the same facts and circuntstances as the Respondent No. 2 (the 16-year-old) was a minor girl child. It is respectfutly submitted that even if the Muslim personal law considers that the someone attaining puberty makes them eligible for marriage. The High Court has sidestepped the issue of the validity of the marriage completely," it added.
[Read Punjab & Haryana High Courts impugned order]
