Can a Muslim minor marry under personal law? What courts have said

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The story so far: The Punjab and Haryana High Court has observed that under Muslim personal law, a person who has attained puberty is presumed to be competent to marry a person of their choice.

The observation came while the court was hearing a petition filed by a Muslim couple seeking protection of their life and liberty after marrying against the wishes of the woman’s family.

The judgment highlights an ongoing legal question concerning the interplay between personal laws and statutory child-protection frameworks, such as the Prohibition of Child Marriage Act, 2006 (PCMA) and the Protection of Children from Sexual Offences, 2012 (POCSO) Act. Under the PCMA, a “child” means a male who has not completed 21 years of age or a female who has not completed 18 years of age. A “child marriage” is a marriage to which either of the contracting parties is a child.

Justice Vikram Aggarwal made the observation while dealing with a petition filed by a 26-year-old Muslim man and a 17-year-and-eight-month-old Muslim woman, who sought protection from the woman’s family. The couple said they had performed nikah after the woman’s father opposed their relationship.

The court also observed that “As per Muslim Personal Laws, a boy or girl who has attained the age of puberty, which happens to be 15 years, is at liberty to marry anyone of his or her liking”.

The high court referred to Article 195 of Sir Dinshah Fardunji Mulla’s Principles of Mohammedan Law, which recognises a Muslim of sound mind who has attained puberty as competent to enter into a marriage contract. In the absence of evidence establishing an earlier or later attainment of puberty, the legal presumption operates from the age of 15 years.

The court also relied on its earlier decision in Kammu v. State of Haryana (2010), wherein it had held that a Muslim boy or girl who has attained puberty is at liberty to marry a person of their choice, and that a guardian cannot interfere with such a choice where the requirements of the applicable law are satisfied.

When it comes to Muslim personal law and the question of marriage of minors, different high courts have shown different opinions over the period of time.

In Mohd. Samim v. State Of Haryana, decided by the Punjab & Haryana High Court on September 26, 2018, the court examined the validity of the marriage between a man and a 16-year-old girl at the time of marriage. The petitioner argued that under Muslim Personal Law, the marriage was valid and that the PCMA did not apply. After considering various precedents and legal provisions, the court concluded that the marriage was valid under Muslim law, as the girl had attained puberty and was considered a major under Muslim Personal Law. Consequently, the court directed her release from a Safe House, allowing her to reside with her husband.

In Rahul v. State of Karnataka (2021), the Karnataka High Court noted that the POCSO Act will have an overriding effect on Muslim personal law.

The issue was considered again in Aleem Pasha v. State of Karnataka (2022).