SC notice on plea for raising women’s ‘marriageable age’ under Muslim personal law

The Supreme Court on Friday issued notice to the Centre on a plea by the National Commission for Women seeking a direction to make the marriageable age of girls/women of all communities as 18 years, irrespective of their religion.

The plea, filed through advocate Nitin Saluja, sought a direction on the equal application of the Protection of Children from Sexual Offences (POCSO) Act, the IPC, and the Prohibition of Child Marriage (PCM) Act should be given effect irrespective of religion/personal laws.

A bench, headed by Chief Justice D.Y. Chandrachud, issued notice on the plea.

The plea said sought the enforcement of the fundamental rights of minor Muslim women, guaranteed under Articles 14, 15 and 21 of the Constitution, by seeking that equal application of the penal laws to Muslim women, who have contracted a marriage before attaining the age of majority, whether consensually or otherwise, be given effect to irrespective of their religion/personal laws.

The NCW also sought a direction to increase of ‘marriageable age’ under the Muslim personal law to bring the same in consonance with the penal laws.

“The ‘minimum age of marriage’ under various personal laws, other than the Muslim personal law, is consistent and in consonance with other prevailing penal laws. Under the Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and Hindu Marriage Act, 1955, the ‘minimum age of marriage’ for a man is 21 years and for a woman is 18 years,” said the plea.

The plea added, however, under the Muslim personal law in India, which continues to remain uncodified and unconsolidated, persons who have attained puberty are eligible to get married i.e., on attaining the age of 15 years (in absence of evidence), while they are still minor.

“The same is not only arbitrary, irrational and discriminatory but also violative of the provisions of penal laws. The Protection of Children from Sexual Offences Act, 2012, has been enacted to protect children (below 18 years), particularly women, from offences of sexual assault, sexual harassment, etc.”, it added.

The plea contended that as per Section 375 of the Indian Penal Code, which defines the offence of “rape”, the consent of a women below the age of 18 years is not a valid consent in the eyes of the law and any sexual activity, as defined therein, with a minor, with or without consent, is a punishable offence.

“Solemnisation of a marriage of man below the age of 21 years and of a woman below the age of 18 years is a punishable offence under the Prohibition of Child Marriage Act, 2006. Thus, the Muslim personal law, which permits children to get married on attaining puberty i.e., at the age of 15 years, is in the teeth of the aforesaid penal provisions,” said the plea.

20221209-180202

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