A Punjab and Haryana High Court Bench comprising Justice Harnaresh Singh Gill while dealing with a Plea filed by interfaith married couple granted protection to a Muslim Girl (17 Year Old) who married a Hindu Man (33 Year Old) while noting that she is of Marriageable Age under Muslim Personal Law.
Background
17 years old Nargis and her 33 Years old husband sought protection from the High Court submitting 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. This petition had been filed under Article 226 of the Constitution for issuance of a writ in the nature of mandamus directing respondents to protect the life and liberty of the petitioners at the hands of respondents.
Submissions
Learned counsel for the petitioners submits that petitioners though have married with each other against the wishes of respondents No. 4 to 6 and have sought protection to their life and liberty. They apprehend danger at the hands of respondents.
Learned counsel for the petitioners further submitted that this was the first marriage of both the petitioners. He contended 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. It was further contended that a Muslim boy or Muslim girl who had attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.
Order of the Court
The Court ordered that,
"This Court had taken note of the judgements cited on behalf of the petitioners and also the fact that the girl in the instant case i.e. petitioner was aged about 17 years. In the case of Yunus Khan(supra), it had been noticed that the marriage of a Muslim girl is governed by the personal law of the Muslims. Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ had also been reproduced in the said decision."
The article states that:
“195. Capacity for marriage: (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.
(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”
A Coordinate Bench in Kammu v. State of Haryana & Ors. 2010(4) RCR (Civil) 716 held in para No. 20 that as per the text Book of Mohammedan Law by Aqil Ahmad,
"Puberty and majority in the Muslim law, are one and the same. The presumption was that a person attains majority at the age of 15 years. It should be noted that the marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of the majority. A boy or girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere if the match is equal."
The court said that,
"In view of the decisions cited above, the law 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’, petitioner No.1 being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. Petitioner No.2 is stated to be about 33 years of age. Thus, petitioner No.1 is of marriageable age as envisaged by Muslim Personal Law. In any event, the issue in hand was 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. Article 21 of the Constitution provides for the protection of life and personal liberty and further laid 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."
At last, Court concluded that,
"In view of the above discussion, but without entering upon an exercise to evaluate the evidentiary value of the documents placed on the file, I dispose of the present petition with a direction to respondent No.2- Senior Superintendent of Police, Malerkotla, to decide the representation dated 16.12.2021 moved by the petitioners, and grant protection to them, if any threat to their life and liberty is perceived. It is made clear that this order shall not be taken to protect the petitioners from legal action for violation of law, if any, committed by them. "
Case Details
Case Name: Nargis and another v. State of Punjab and Others
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