Gauhati High Court
Mujibur Rahman vs The State Of Assam And 6 Ors on 22 May, 2023
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GAHC010057762023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1514/2023
MUJIBUR RAHMAN
S/O LATE ABDUL MATIN, VILL-ALAMKHANI, P.O.-NILAM BAZAR, P.S.-
NILAM BAZAR, DIST-KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS
TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, REVENUE AND DISASTER MANAGEMENT
(REGN) DEPARTMENT, DISPUR, GHY-06
2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GHY-6
3:THE DIRECTOR GENERAL OF POLICE
ASSAM POLICE HEADQUARTER
ULUBARI
GUWAHATI-7
4:THE SUPERINTENDENT OF POLICE
KARIMGANJ
ASSAM
5:THE INSPECTOR GENERAL OF REGISTRATION
ASSAM
RUPNAGAR
GHY-32
6:THE DEPUTY COMMISSIONER CUM DISTRICT REGISTRAR
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KARIMGANJ
ASSAM
7:THE OFFICER-IN-CHARGE OF NILAMBAZAR POLICE STATION
NILAMBAZAR
DIST-KARIMGANJ
ASSA
Advocate for the Petitioner : MR A R BHUYAN
Advocate for the Respondent : SC, REVENUE
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 22.05.2023
Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Mr.
D. Mazumdar, learned Additional Advocate General, assisted by Ms. S. Sarma,
learned Govt. Advocate.
2. It appears that the matter has been listed quite a few occasions.
However, notice of motion was not issued.
3. Accordingly, the Court is inclined to issue notice of motion
returnable forthwith without requiring the petitioner to take fresh steps.
4. Requisite extra copies of the writ petition be furnished to the
learned Govt. Advocate assisting the learned Additional Advocate General for
the State in course of the day.
5. The learned Additional Advocate General has submitted that the
provisions of section 42A of the POCSO Act, 2012 will have an overriding affect
on the conduct and registration of marriage by a Kazi under the Assam Moslem
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Marriages and Divorces Registration Act, 1935 and rules framed thereunder.
6. It is submitted that in a recent judgment of the Kerala High Court in
the case of Khaledur Rahman v. The State of Kerala, BA 8216/2022, decided on
18.11.2022, reported in (2022) 0 Supreme (Ker) 819 , an elaborate discussion
has been made in the issue of marriages performed under the personal laws
and it has been held that marriages made in respect of a minor mohamedian
girl cannot be saved and the concerned parties who have conducted the
marriage or have married or participated in the marriage could all be prosecuted
under POCSO Act.
7. It appears from the provision of Rule 26(1) of the Assam Moslem
Marriages and Divorces Registration Rules, 1935, the duty prescribed for a
Moslem Registrar is that before registering a marriage, he is required to
examine the parties to the marriage, or, if either or both are minor, their lawful
guardians.
8. Therefore, insofar as the Moslem Marriage Registrar and Kazi is
concerned, the Court finds that if he exercises power in accordance with Rule
26(1) of the said 1935 Rules, the same being within the prescription of law, the
question arises as to whether Kazi could be held liable for abetment.
9. The second issue which arises in the matter would be that in light of
prescription of the Assam Moslem Marriages and Divorces Registration Act, 1935
and Rules framed thereunder, whether without declaring the State law to have
been expressly overridden by the POCSO Act, 2012, whether there can be
deemed repugnancy of the State law and Rules in light of the prescription of the
Prohibition of Child Marriage Act, 2006.
10. Another question may arise in this matter as to whether the rigours
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of POCSO Act would prevail over the 1935 Assam Act and Rules framed
thereunder.
11. As agreed to by both sides, list on 31.05.2023.
12. Interim order passed earlier stands extended till the next date of
listing.
JUDGE
Comparing Assistant
