Andhra Pradesh High Court - Amravati
Saniya Taj Saniya Taz vs The State Of Andhra Pradesh on 16 February, 2024
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
W.P.No.2237 OF 2024
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of
India:
"to issue a Writ Order or direction more particularly one in the
nature of Writ of Mandamus declaring highhanded action of the
Respondent Nos.2 to 6 in not considering the petitioner representation
dated 15.01.2024 to provide Police Protection to us and enable the
petitioner to celebrate our Nikha peacefully at the house of the
petitioner would be, according to Muslim Customs and Rites prevailing
in Muslim Community and render justice to the Petitioner as illegal,
irregular, unjust and violation of the Articles 14, 19, 21 and 300-A of
the Constitution of India and consequently direct the Respondent No.6
to conduct enquiry and provide police protection to the Petitioner and
the Petitioner would be family members to celebrate our Nikha
peacefully at the house of the Petitioner would be, according to
Muslim Customs and Rites prevailing in Muslim Community in the
interest of justice and pass order or orders.".
2. The contention of the petitioner briefly as follows:
3. The petitioner is a resident of Bangalore South, Bangalore, Karnataka
and fell in love with Mr. I. Akram S/o. Syed Ibraheem, a resident of K.P.
Mitta Village, Chittoor District. The 7th respondent is the mother of the
petitioner. The 7th respondent is working in Kuwait. She has two female
children and one male child. The petitioner is the eldest one. The father of
BSB,J
the petitioner abandoned her mother and settled in Kerala State. The
petitioner decided to celebrate her marriage with I. Akram according to
muslim customs and rites on 19.12.2023, since both the parties belonged to
the muslim community and she came to him at his parent‟s house in K.P.
Mitta Village. As per the muslim law, a girl on attaining puberty has
capacity to enter into marriage. The petitioner attained puberty as she
completed 17 years of age being born on 13.09.2006. I. Akram is aged of 24
years. Majority is presumed among Hanafis and Shias on completion of 15
years of age, in case of both male and female as per the muslim law. On
09.01.2024, when the petitioner intended to marry I. Akram by informing
the same to her mother and the meternal uncles at Bangalore, the mother
and the meternal uncle of the petitioner came to K.P. Mitta Village along
with 25 members agreeing to celebrate the marriage (Nikha). But, started
abusing and beating the petitioner by threatening her with dire
consequences unless she fallows them and attempted to take the petitioner
back to Bangalore by force. However, she was rescued by the elders of
their community. Then the mother of the petitioner challenged that she
would never allow the petitioner to marry I. Akram. Since then, the mother
and meternal uncle of the petitioner have been threatening her. So, the
petitioner is apprehending danger to her life in their hands. Then, the
petitioner submitted a representation to the respondents No.2 to 6 to
provide police protection to enable the petitioner to celebrate her
BSB,J
marriage. But, till date, there is no response from them. Hence, this
petition is filed.
4. The learned counsel for the petitioner submitted that as per the
muslim law, since the petitioner crossed the age of puberty and entitled to
marry, she must be given protection by the police when she performs her
marriage.
5. On the other hand, the learned Assistant Government Pleader for
Home representing the respondent Nos.1 to 6 opposed the petition and
submitted that the petitioner has not crossed the age of 18 years and she is
still minor and not entitled to enter into marriage.
6. Though the muslim women, as per the personal law of the muslims is
entitled to marry on attaining puberty, under Section 1 (2) of the
Prohibition of Child Marriage Act, 2006, (hereafter called as "the Act,
2006") which is applicable to all citizens of India except Renonkants of the
Union Territory of Pondicherry, a person who is a „child‟ within the
definition of Section 2 (a) of the Act, 2006 i.e., female who has not
completed the age of 18 years, if she marries, such marriage being „child
marriage‟ within the definition of Section 2 (b) of the Act, 2006 is voidable
at the option of the contracting party as per Section 3 (1) therein.
However, such a „child marriage‟ has penal consequences provided under
the Act 2006 itself viz., Section 9 which provides punishment for a male
adult marrying a child with rigorous imprisonment which may extend to two
BSB,J
years or with fine which may extend to one lakh rupees or with both,
Section 10 which punishes the persons whoever performs, conducts, directs
or abets any child marriage with rigorous imprisonment which may extend to
two years and shall be liable to fine which may extend to one lakh rupees
unless he proves that he had reasons to believe that the marriage was not a
child marriage and further Section 11 which provides punishment for
promoting or permitting solemnization of child marriages.
7. Recently, the High Court of Panjab and Haryana at Chandigarh vide
its order dated 30.09.2022 in CRWP-7426-2022 (O&M) decided that the case
where muslim minor girl was 16 years of age and the muslim man was of 26
years of age who entered into marriage and the husband sought custody of
his wife claiming that his wife wishes to reside with him and their marriage
is valid as per the principles of Mohammedan Law. After considering the
principles of Mohammedan Law and the judgments of the coordinate
Benches of the same High Court in Mohd. Samim vs. State of Haryana and
Others1 and in Kammu vs.State of Haryana and Others2, the petition was
allowed.
8. The National Commission for Protection of Child Rites (NCPCR) went
in appeal to the Supreme Court challenging the said order vide order dated
13.01.2023 vide Special Leave Petition (Criminal) Diary No.35376/2022. The
Supreme Court was inclined to entertain the said SLP and ordered notice.
2019 (1) R.C. R.(Criminal) 685
2010 (4) R.C.R. (Civil) 716
BSB,J
Pending further orders, the Supreme Court directed that the impugned
judgment of the High Court of Panjab and Haryana dated 30.09.2022 shall
not be relied on as a precedent in any other case. The matter stands posted
to 21.03.2024 as can be seen from the case status available on the website
of the Supreme Court of India. The petitioner also raises the same ground as
relied by the High Court of Panjab and Haryana referred supra.
9. The contention of the petitioner cannot be examined only from the
point of legality of the marriage under the personal law, but its relevance
under the provisions of the other enactments shall also be considered.
Under the Act, 2006, though the child marriage is not expressly declared
invalid or illegal nor is it expressly prohibited, the penal provisions are
incorporated irrespective of the validity of the child marriage which is only
voidable.
10. Since the matter is already before the Supreme Court in the above
said case for final adjudication, any authority bound by law shall act in the
matter of child marriage, irrespective of the religion, strictly in accordance
with law, which means not just a personal law applicable to the child, but
the other provisions as well which are already discussed above.
11. The learned counsel for the petitioner submitted that after filing of
the petition, the petitioner fixed the date of performance of the marriage
on 18.02.2024. Yesterday i.e., 15.02.2024, on the direction of this Court,
BSB,J
the petitioner‟s counsel sent a notice to the 7th respondent through
whatsapp and proof is also filed today.
12. The learned Assistant Government Pleader for Home represented
that, after receiving the request of the petitioner, though she was called for
enquiry, she had not come to the police station stating some reasons to
escape the enquiry and that the 6th respondent/SHO telephonically
approached the mother of the petitioner i.e., 7th respondent, who stated
that she had given compliant in the police station at Bangalore about
missing of her daughter and further stated that she would settle the issue in
Karnataka itself.
13. Since the representation given by the petitioner without mentioning
time and place is still pending with the police and it was also represented by
the learned Assistant Government Pleader for Home that the petitioner has
not approached the police for it, the respondent-police shall dispose of the
representation strictly as per law discussed above. As such, this Writ
Petition is disposed of. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________
B.S.BHANUMATHI, J
16th February, 2024
PGT
BSB,J
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
BSB,J
W.P.No.2237 OF 2024
16th February, 2024
PGT
