In a latest development, we saw how the Punjab and Haryana High Court has as recently as on December 22, 2021 in a learned, laudable, landmark and latest judgment titled Nargis and another Vs State of Punjab and others in CRWP-12067-2021 granted protection to a Muslim girl who is 17 year old and who married a Hindu man who is 33 year old while noting that she is of marriageable age under Muslim law. Prima facie, the Punjab and Haryana High Court also made it clear that a 17 year old girl was competent to enter into a contract of marriage with person of her choice. It must be apprised here that the Bench of Justice Harnaresh Singh Gill was hearing a protection plea that was filed by the couple (a Hindu man and a Muslim woman) who solemnized their marriage in a Hindu temple and thereafter, sought the protection of their life and liberty.
To start with, the ball is set rolling first and foremost in this brief, brilliant, bold and balanced oral judgment authored by a Single Judge Bench comprising of Justice Harnaresh Singh Gill wherein it is put forth quite elegantly, eloquently and effectively that, “Case is taken up for hearing through Video Conferencing. This petition has been filed under Article 226 of the Constitution for issuance of a writ in the nature of mandamus directing respondents No.2 and 3 to protect the life and liberty of the petitioners at the hands of respondents No.4 to 6.”
To put things in perspective, the Bench then envisages in the next para that, “Learned counsel for the petitioners submits that petitioner No.1, though minor, and petitioner No.2, have married with each other against the wishes of respondents No.4 to 6 and have sought protection to their life and liberty. They apprehend danger at the hands of respondents No.4 to 6. The photograph, evidencing their marriage, is on record as Annexure P-3. The petitioners have submitted a representation dated 16.12.2021 (Annexure P4) to respondent No.2-Senior Superintendent of Police, Malerkotla, for redressal of their grievance.”
While fortifying the submission of the petitioners with relevant case laws, the Bench then discloses in the next para that, “Learned counsel for the petitioners further submits that this is the first marriage of both the petitioners. He has relied upon the decisions by the Coordinate Benches in ‘Kammu vs. State of Haryana & Ors.’ 2010(4) RCR (Civil) 716; ‘Yunus Khan vs. State of Haryana & Ors.’ 2014(3) RCR (Criminal) 518, ‘Mohd. Samim vs. State of Haryana & Ors.’ 2019(1) RCR (Criminal) 685, and dated 25.01.2021 rendered in CRWP733-2021, titled as ‘Shoukat Hussain and another Vs. State of Punjab and others’, to contend that in Muslim law puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years. It is further contented that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere.”
As we see, the Bench then states that, “Notice of motion to respondents No.1 to 3-State only, at this stage. On the asking of this Court, Mr. Chaman Lal Pawar, Sr. DAG, Punjab, accepts notice on behalf of respondents No.1 to 3. I have heard the learned counsel for the parties.”
Be it noted, the Bench then hastens to add in the next para that, “This Court has taken note of the judgements cited on behalf of the petitioners and also the fact that the girl in the instant case i.e. petitioner No.1 is aged about 17 years. In the case of Yunus Khan(supra), it has been noticed that the marriage of a Muslim girl is governed by the personal law of the Muslims. Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ has also been reproduced in the said decision. The said Article reads as under :
“195. Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.
(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.””
Most significantly, the Bench then holds what forms the cornerstone of this notable judgment that, “A Coordinate Bench in Kammu’s case (supra), has held in para No.20 that as per the text Book of Mohammedan Law by Aqil Ahmad, “Puberty and majority” in the Muslim law, are one and the same. The presumption is that a person attains majority at the age of 15 years. It should be noted that marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere if the match be equal.”
As a corollary and no less significantly, the Bench then considers it fit to hold in the next para that, “In view of the decisions cited above, the law is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, petitioner No.1 being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. Petitioner No.2 is stated to be about 33 years of age. Thus, petitioner No.1 is of marriageable age as envisaged by Muslim Personal Law. In any event, the issue in hand is not with regard to the validity of the marriage but to address the apprehension raised by the petitioners of danger to their life and liberty at the hands of the private respondents and to provide them protection as envisaged under Article 21 of the Constitution. Article 21 of the Constitution provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her life and personal liberty except as per the procedure established by 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.”
Finally, the Bench then deems it fit to hold that, “In view of the above discussion, but without entering upon an exercise to evaluate the evidentiary value of the documents placed on the file, I dispose of the present petition with a direction to respondent No.2- Senior Superintendent of Police, Malerkotla, to decide the representation dated 16.12.2021 (Annexure P-4) moved by the petitioners, and grant protection to them, if any threat to their life and liberty is perceived. It is made clear that this order shall not be taken to protect the petitioners from legal action for violation of law, if any, committed by them.”
All said and done, the Single Judge Bench of Justice Harnaresh Singh Gill of Punjab and Haryana High Court makes it amply clear that 17 year old Muslim girl is fully competent to enter into a contract of marriage with person of her choice. There can be just no denying or disputing it! So it would be perfectly in order that in compliance with what the single Judge Bench of Justice Harnaresh Singh Gill has held so clearly, the parents and relatives of the Muslim girl must ensure that they refrain from exerting undue pressure on her to take decision as per their whims and fancies! This is what has been directed also by the Punjab and Haryana High Court in this cogent, commendable, composed, concise and courageous judgment which the concerned authorities also must ensure that it is implemented properly so that the Muslim girl who is competent to enter into a contract of marriage is able to take the right decision as she pleases and not buckle under some external pressure which would be totally unacceptable!
Sanjeev Sirohi