SC pulls up UP Home secy over Muslim man's plea

The Muslim man plead to live with his 16-year-old wife, who remained confined to a shelter home.

The Supreme Court on Thursday pulled up the Uttar Pradesh government for failing to respond to a Muslim man's plea to live with his 16-year-old wife, who remained confined to a shelter home, after the Allahabad High Court declared their marriage as void.

A bench of Justices N V Ramana and Ajay Rastogi summoned the Home Secretary on Monday, September 23 to explain the delay.

"You are taking it very lightly. A girl had been staying in 'Nari Niketan'. It is the future of the girl," the bench told an advocate, representing the UP government.

The court's response came after the counsel, for his part, sought further 15 days' time to file reply by the government.

"No proper instructions has been received, let Secretary, Home to personally appear on Monday," the bench said in its order.

The top court had earlier decided to examine the legal question if a minor girl, who married a man of her choice under the Muslim Law on attaining the age of puberty, can live with her husband.

It had admitted the plea by the man against a Allahabad High Court judgment which had nullified their marriage.

The man challenged validity of the high court's order of July 17 that sent her to the shelter home. A criminal case of abduction and enticing her away for marriage was lodged against the husband by her parents.

Advocate Dushyant Parashar, who represented the man, had contended the high court has committed “serious illegality” in declaring the marriage as void while hearing a habeas corpus petition by the husband.

He had cited the case of Kerala's Shafin Jahan (Hadiya) wherein the apex court held the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable.

The petitioner had said the high court ought to have permitted the girl to lead her matrimonial life. She has attained the age of puberty, and her age has been certified to be of 16 years.

“The case of the petitioner nowhere falls within the ambit of the Juvenile Justice (Care and Protection) Act, 2015. As per the Mohammadan Law, once the female attains the age of puberty i.e. 15 years, thereafter the female is independent to take the decision for her life in as much as, she is competent to marry any one of her own choice and the majority age as defined under Indian Majority Act, 1875, would not apply,” her plea stated.

Under the Muslim law, marriage or 'Nikah' is a contract and the conditions for a valid marriage mandated both the individuals must profess Islam, both should be of the age of puberty, there has to be an offer and acceptance and there must be two witnesses and there must be 'dower' and 'mehar'.

The petitioner also relied upon her statement under Section 164 of the Criminal Procedure Code wherein she stated she had married the person out of her own free will, though her family wanted to tie her knot with someone else who was already married had 3-4 children.