NCPCR challenges marriage of minor girls in Sharia as ‘sexual assault’; Supreme Court ready to examine

Child marriage. Representational Image

New Delhi: The Supreme Court has agreed to examine a petition of the National Commission for Protection of Child Rights (NCPCR) challenging an order of Punjab and Haryana High Court from June this year wherein it had cited Sharia Law and held that a 16-year-old Muslim girl could enter into a valid marriage.

However, NCPCR, in its Special Leave Petition (SLP) has argued that since the order is in violation of the POCSO Act, under which sexual intercourse with a girl younger than 18 years is sexual assault.

What NCPCR says?

“Substantial question of law involved in instant petition is that whether on the facts and in the circumstances of the case and in law the Hon’ble High Court ought to have considered the age of the Respondent No. 2 herein as she is a minor child as per POCSO Act before issuing the writ of Mandamus and that whether on the fact and in the circumstances of the case and in law, the Hon’ble High Court has erred in ignoring the fact that sexual intercourse with a minor girl below the age of 18 years is sexual assault as per POCSO Act,” NCPCR said in the petition.

“It is most respectfully submitted that the impugned order is incorrect on face of it as the same is in total disregard of the statutory provision and principles established by this Hon’ble Court,” NCPCR added.

The apex court issued notice and appointed senior advocate Rajshekhar Rao as amicus curiae for assistance in the matter.

Appearing for the NCPCR, Solicitor General (SG) Tushar Mehta requested the court to stay of the observation in the judgement. He said that it is a “serious issue” in view of the impact on the ban of child marriages and also the POCSO Act.

Posting the matter to November 7, the Supreme Court bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka appointed Senior Advocate R Rajasekhar Rao said, “How will anybody follow this? We are saying we will examine the issue. Let us hear the amicus and we will hear the matter.”

Punjab and Haryana High Court order in question

A Pathankot-based couple — a 16-year-old (minor) Muslim girl and a Muslim man aged 21 years approached the High Court, seeking protection as their families were opposed to the wedding, which had taken place as per religious customs earlier in June this year.

A single-judge Bench of the High Court had granted protection to the Muslim couple and said that the girl, who has attained puberty is of Marriageable Age under Muslim Personal Law. It further observed that the marriage was governed by Muslim Personal Law.

“The court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India,” the Punjab and Haryana High Court said.

The court further said the issue for consideration in the case was not with regard to the validity of the marriage but to address the apprehension highlighted by the petitioners of danger to their life and liberty.

The High Court had even directed the Senior Superintendent of Police, Pathankot, to decide the representation of the petitioners and take appropriate action as per law.

For the unversed, the legal age of marriage is 18 years for a woman and 21 years for a man.

NCPCR petition in Supreme Court

In its argument, NCPCR argued that the Punjab and Haryana High Court’s ruling essentially allowed a child marriage which is violation of the Prohibition of Child Marriage Act, 2006.

“The provisions of the Act are secular and applicable to all religions,” petition stated.

It further said that the judgement is against the spirit of Prevention of Children against sexual offences, 2012 (POCSO), which is also a secular law.

Arguing further, the NCPCR said that as per the law, no child below the age of 18 years can give a valid consent. Child protection laws cannot be seen in isolation with Article 21 of the Constitution guaranteeing the right to life and liberty.

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