The Top Court’s 2018 judgment on the marriage of Hadiya nee Akhila & Safin Jahan, which recognised attaining of puberty as a condition for a valid Muslim marriage, has resulted in an unintended legal complexity — a 16-year-old Muslim girl has now petitioned the Supreme Court to validate her marriage saying she has attained puberty.
The legal age of marriage in India is 18 years for girls & 21 years for boys, both under the Special Marriage Act, 1954, & the Prohibition of Child Marriage Act, 2006. But the Court in the Shafin Jahan case recognised that a Muslim marriage was valid if the following conditions were met: Both individuals professed Islam; both were of the age of puberty; if there was an offer & acceptance in the presence of two witnesses; giving of ‘mehr’; & absence of a prohibited degree of relationship.
Citing the Top Court’s 2018 judgment in Shafin Jahan vs Asokan K M, the 16-year-old Muslim girl moved the Court through advocate Dushyant Parashar, challenging the Allahabad High Court’s decision to send her to a women’s shelter home terming the marriage invalid because she wasn't 18 years old.
Advocate Dushyant Parashar told the Apex Court that examining the facts of the case on the touchstone of the Shafin Jahan judgment, it would be a valid marriage as both the 16-year-old girl & her 24-year-old husband professed Islam, attained puberty, there was offer & acceptance, giving & taking of ‘Mehr’ & a nikahnama was drawn with the consent of the girl & the boy.
The girl’s father had lodged a police complaint alleging that the man had kidnapped his minor daughter. But the girl recorded her statement under Section 164 of Criminal Procedure Code before a Judge & said she married the man of her own volition without any pressure & that she wanted to live with him.
But on June 24 a court in Bahraich, UP, took note that the girl had not reached the age of marriage & directed her to be lodged in the custody of the Child Welfare Committee, Bahraich, till she attained the age of majority, that is 18 years. The girl’s husband moved a habeas corpus petition before the Lucknow bench of Allahabad HC, which dismissed the petition & said under the Juvenile Justice (Care & Protection) Act, she would be treated as a minor & hence the marriage was void. The High Court agreed with the lower Court’s decision to send her to a women’s shelter home.
Parashar cited the Shafin Jahan judgment in which the Top Court had said that right to choose a life partner was a constitutionally guaranteed right. He said the girl’s father was interfering with her right to live with her life partner, whom she had chosen after attaining puberty & married through a valid nikahnama.
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