A minor Muslim girl's right to marry vs the law of the land

Whether it is the age of consent or polygamy, we must look to the judiciary to definitively strike down social and cultural practices that violate their constitutional rights

Last week the Jharkhand High Court upheld a 15-year-old Muslim girl's right to marry a person of her choice, saying that Muslim Personal Law allowed the marriage of girls of 15 and above. The court gave its ruling while quashing criminal proceedings against the girl's husband. Her parents had filed an FIR against him for seducing and marrying a minor, although they said later that they had accepted the marriage.

The judgment raises some important questions and legal contradictions. In 2017, the Supreme Court held that sex with a minor girl, whether married or unmarried, constitutes rape. And under the Protection of Children from Sexual Offences (POCSO) Act, the age of consent is 18. The question is, should this law override the provisions of personal laws of particular communities?

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The courts have been giving conflicting judgments in this regard. Last month the Kerala High Court ruled that marriage with a minor belonging to the Muslim community also comes under the POCSO Act, and a person who has sexual relations with his minor wife would be punishable under the law.

"If one of the parties to the marriage is a minor, irrespective of validity of marriage or otherwise, offences under POCSO Act will stand. I am unable to agree to the proposition …that an offence under the POCSO will not get attracted against a Muslim marrying a minor," Justice Bachu Kurian Thomas said.

In complete contrast to this judgment, the Jharkhand High Court saw it fit not to invoke the provisions of POCSO in the above-mentioned case on the ground that the rules of the Muslim Personal Law Board permit the marriage of girls who have reached puberty, and perhaps also because the families had now reached an understanding and come to terms with the marriage.

The point, however, is that when a court of law gives its stamp of approval on the marriage of a 15-year-old girl — be she Hindu or Muslim or of any other community — it sends out the message that child marriage is acceptable, and that sex with a minor, albeit within the ambit of wedlock, which is considered rape under the law of the land, is, in fact, permitted.

Yes, Muslim Personal Law allows such marriages. And incidentally, even the Prevention of Child Marriage Act (PCMA), 2006, which prohibits child marriage, does not make such a marriage void ab initio, but merely voidable at the wish of the person who was a child at the time of the wedding. Disappointingly, the proposed amendment to the PCMA, which raises the age of marriage for girls to 21 to bring it on a par with that of boys, also refrains from terming a child marriage void from the outset.

While we may debate the issue of the appropriate age for consent and/or marriage, there can be no debate on the fact that underage marriage is deeply damaging for the physical, emotional and reproductive health of girls. More often than not, it destroys their chances of getting an education and achieving financial independence. The truth is, despite the PCMA, the practice of child marriage continues to thrive in India. According to the National Family Health Survey-5 2019-21, 27 per cent of women in the age group of 20-24 years in rural areas were married before they turned 18, while the figure was 14.7 per cent in urban areas. And these are just the reported cases.

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Hence, a law that says that sex with a minor wife is statutory rape can be a serious tool in the fight to stop child marriages. But how does one reconcile such a law with a personal law that allows the marriage of a 15-year-old girl?

Unfortunately, any discussion on the regressive elements in Muslim Personal Law, especially with regard to women, invariably gets labelled as an attempt to thrust a Uniform Civil Code (UCC) down the throats of the minority community. The BJP government at the Centre has, of course, been promising to bring in an UCC, a promise that is noisily ratcheted up before every state election. However, railroading some version of a UCC at this point would do more harm than good and further polarise an already fractured society, vitiated as it is by majoritarian muscle-flexing and attempts to bully and marginalise the minorities.

Many progressive members of the Muslim community have repeatedly called for reforms in Muslim Personal Law and the codification of Muslim family laws, much in the same way as Hindu family laws were codified in the 1950s. In the absence of a codified family law, Muslim women are denied the benefits of legal protection when it comes to matters of consent, marriage, polygamy, divorce, custody of children, inheritance of property, and so on. But if the legal reforms do not spring from within the community — after all, religious orthodoxy and an entrenched patriarchy are likely to fight tooth and nail to preserve the status quo — then the courts must step in to end anti-women practices that are allowed to flourish under archaic personal laws and uber conservative interpretations of religion.

Let us not forget that when the Hindu Code Bill Committee was constituted in 1941, there was a serious pushback against it not only from the Hindu Right, but also from Congress leaders like Sardar Patel. It was not until 1955 that the Hindu Marriage Act was passed. The Hindu Succession Act came in 1956, and the Hindu Adoption & Maintenance Act in 1956. And Hindu women's right to get a share of the family property was enacted only in 2005.

The courts, though, have played an important role in outlawing regressive social and cultural norms. In 2017 the Supreme Court held the practice of instant triple talaq unconstitutional, and in 2018, in yet another landmark judgement, it ruled that there could be no exceptions to the entry of women in Kerala's Sabarimala temple. The apex court is now set to hear pleas from Muslim women challenging the practice of polygamy and nikkah halala (a process wherein a divorced Muslim woman has to first marry another man, consummate it and get a divorce from him, if she and her first husband want to remarry.)

The Muslim community, which like the Hindu, or any other community, has its share of misogynistic bigots dead set against giving women their constitutional rights. However, the path to gender justice for every Indian woman does not necessarily have to be through a Uniform Civil Code. Several legal experts have argued that perhaps a better way would be to do it in a 'piecemeal' fashion. And that's where the courts come in. Indeed, whether it is the age of consent or polygamy, or the custody of children, we must look to the judiciary to definitively strike down social and cultural practices sanctioned by personal laws that disempower women and violate their human and constitutional rights.

(Shuma Raha is a journalist and author)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.