Muslim girl of 17 years of age is competent to enter into a contract of marriage with a person of her choice

Muslim girl of 17 years of age is competent to enter into a contract of marriage with a person of her choice

Shoukat Hussian Vs State of Punjab

Punjab and Haryana HC

25/01/2021

CRWP No. 733 of 2021

About/from the judgment:

The High Court addressed the case of a 35-year-old Muslim man who married a 17-year-old girl belonging to the same faith. The Court expressed,

"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."

In the instant case, both the petitioners were Muslims. They fell in love about 2 years ago and decided to perform marriage as per Muslim rites and ceremonies. The petitioners, by this writ petition sought to issuance of mandamus for protection of their life and liberty.

The Bench relied on Yunus Khan v. State of Haryana wherein, it had been held 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."

Hence, the Bench noted that the marriage of a Muslim girl would be governed by the personal law of the Muslims. Article 195 from the book 'Principles of Mohammedan Law by Dinshah Fardunji Mulla' had also provided 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.
"

Thus, it was held that both the petitioners were of marriageable age as envisaged by Muslim Personal Law. However, the Court refused to deal with the validity of the marriage and address only 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 of India. The Court expressed,

"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."

Hence, a writ in nature of mandamus was issued directing Senior Superintendent of Police to protect the life and liberty of the petitioners.

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