SC notice to Centre on plea to raise marriageable age of Muslim girls

The Supreme Court on Friday issued notice to Centre on a plea by National Commission for Women to make the marriageable age of girls of all communities as 18 years, irrespective of their religion.

A bench presided over by Chief Justice D Y Chandrachud sought a response from the Union government on the plea, filed through advocate Nitin Saluja.

The plea sought a direction on the equal application of the Protection of Children from Sexual Offences (POCSO) Act, IPC, and Prohibition of Child Marriage (PCM) Act, irrespective of religion or personal laws.

The plea said sought the enforcement of the fundamental rights of minor Muslim women, guaranteed under Articles 14, 15 and 21 of the Constitution, by equal application of the penal laws in cases where Muslim women, who have contracted a marriage before attaining the age of majority, whether consensually or otherwise.

The National Commission for the Protection of Child Rights had earlier separately questioned the validity of a Punjab and Haryana High Court's recent judgement validating marriage of a 16-year-old minor girl under the Muslim Personal Laws. The top court had issued notice in the matter.

In its plea, the NCW sought a direction to increase of 'marriageable age' under the Muslim personal law to bring it in consonance with the penal laws.

“The 'minimum age of marriage' under various personal laws, other than the Muslim personal law, is consistent and in consonance with other prevailing penal laws. Under the Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and Hindu Marriage Act, 1955, the 'minimum age of marriage' for a man is 21 years and for a woman is 18 years," the plea said.

Under the Muslim personal law in India, which continues to remain uncodified and unconsolidated, persons who have attained puberty are eligible to get married i.e., on attaining the age of 15 years (in absence of evidence), while they are still minor.

“The same is not only arbitrary, irrational and discriminatory but also violative of the provisions of penal laws. The Protection of Children from Sexual Offences Act, 2012, has been enacted to protect children (below 18 years), particularly women, from offences of sexual assault, sexual harassment, etc”, it added.

The plea contended that as per Section 375 of the Indian Penal Code, 1860, which defines the offence of "rape", the consent of a women below the age of 18 years is not a valid consent in the eyes of the law and any sexual activity, as defined therein, with a minor, with or without consent, is a punishable offence.

“Solemnization of a marriage of man below the age of 21 years and of a woman below the age of 18 years is a punishable offence under the Prohibition of Child Marriage Act, 2006. Thus, the Muslim personal law, which permits children to get married on attaining puberty i.e., at the age of 15 years, is in the teeth of the penal provisions," the plea said.