Kerala High Court: In a petition for quashing of proceedings filed by accused persons who were alleged to have conducted child marriage and committed offences punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006 (‘the Act’), claiming that the Muslim Personal Law would apply to the parties and not provisions of the Act, P.V. Kunhikrishnan, J., dismissed the petition, refusing to quash proceedings instituted against the accused and held that the Act would supersede Muslim personal law, and every citizen of the country, irrespective of religion was subject to the law of the land.
Background
Integrated Child Development Scheme Officer (‘ICDS Officer’) submitted a complaint to the Circle Inspector of Police informing of a child marriage that took place within the jurisdiction of ICDS Alathur Additional. Relying on the complaint in which it was stated that a child marriage took place on 30-12-2012, a complaint was registered alleging commission of offences punishable under Sections 10 and 11 of the Act.
As per the State, accused 1 got his minor daughter married to accused 2, according to the religious tenets and rites in Islam. Accused 3 and 4 are the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee and accused 5 was the witness who signed the record. It was, therefore, alleged that all the accused persons had committed the offences.
It was submitted by the accused persons that the parties involved were followers of Islam, hence a marriage below the age of 18 was not a void one. It was further averred that a Muslim girl enjoys a religious right known as ‘Khyar-ul-bulugh’ or ‘Option of Puberty’, a concept that was recognised under Mohammedan Law, which renders the marriage voidable at the instance of the girl upon attaining puberty.
The accused persons submitted that that every child marriage, whether solemnized before or after the commencement of the Act 2006, was voidable only at the option of the married girl. It was also submitted that even as per the secular law, such marriages were not void ab initio, but only voidable at the option of contracting parties. It was contended that a Muslim girl, who had attained puberty, was 15 years, could marry and such a marriage would not be a void marriage. According to the accused persons, the Muslim personal law would prevail over the Act.
The accused persons contended that even if the allegations were accepted, no offence under Sections 10 and 11 of the Prohibition Act would be attracted, therefore, the continuation of the present proceedings was abuse of the process of Court.
The Amicus Curiae submitted that the Act being in force, the same will override personal law of the parties.
Decision and Analysis
Upon hearing the submissions made by the party and perusing the records, the Court alluded to the statement of objects and reasons of the Act and said that it was enacted by the Parliament to strengthen the provisions of the Child Marriage Restraint Act, 1929 more effective and for making the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriage in the country.
Talking about whether Muslims were exempted from the applicability of the Act, the Court noted that Section 1 (2) of the Act says that, it extends to the whole of India and it applied also to all citizens of India, and that it was applicable irrespective of a person’s religion, whether a Hindu, Muslim, Parsi, Christian, etc. without and beyond India.
The Court said that as Section 1(2) of Act, is applicable to all citizens of India without and beyond India., religion is secondary, and citizenship should come first. The Court, thus, opined that, irrespective of religion, whether a person is Hindu, Muslim, Christian, Parsi etc., Act 2006 is applicable to all.”
Referring to the Majority Act, 1875 (‘Majority Act’) the Court noted that as per Section 3 thereunder provides every person domiciled in India shall attain the age of majority on his completing the age of 18 years and not before. The Court further noted that as per Section 2, the Majority Act would not be applicable toreligion or religious rites and usages of any class of citizens of India however, the Majority Act was enacted in the year 1875 and the Act come into force on 01-11-2007. Hence, the Court opined that the Act would override the provisions of the Majority Act as far as child marriage was concerned.
The Court remarked that, “the prohibition of child marriage is important in the modern society. Child marriage denies children their basic human rights, including the right to education, health, and protection from exploitation. Early marriage and pregnancy can lead to health problems such as infant mortality, maternal mortality, and sexually transmitted infections. Child marriage often forces girls to drop out the school, limiting their education and future opportunities.”
The Court, therefore, refused to quash proceedings against the accused persons and dismissed the petition.
[Moidutty Musliyar v. State of Kerala, 2024 SCC OnLine Ker 4188, decided on 15-07-2024]
Advocates who appeared in this case :
Advocates for petitioners: R.O. Muhamed Shemeem, Naseeha Beegum P.S., Advocates
Advocates for State: Government Pleader
Amicus Curiae: Renjith T.R., Sr Public Prosecutor, K. M. Firoz