Date of judgement:
28 December 2021
Bench:
Justice Harnaresh Singh Gill
Parties:
Petitioner – Nargis & Anr.
Respondent – State of Punjab & Ors.
Subject
The marriage of a Muslim girl is governed by the Muslim Personal Laws, according to which attaining puberty is taken as majority. In India, any marriage in which the age of a girl is less than 18 years and the age of a boy is less than 21 years comes under child marriage, which is abolished. But, if such marriage has occurred, it will not be considered void by law.
Right to life and personal liberty is guaranteed by the Constitution of India under Article 21and if threatened, it is the responsibility of the State to protect it.
Legal Provisions
- Article 21, Indian Constitution – This article is one of our fundamental rights, guaranteed to us by the Constitution of India. This article talks about our Right to Life and Personal Liberty. According to this article, anyone, who is present in the Indian territory has the right to live with dignity and move freely until prescribed by law otherwise.
- Article 226, Indian Constitution –This article gives any Hight Court, the power to issue directions, orders or writs (Habeas Corpus, Mandamus, Certiorari, Quo Warranto or Prohibition) to any person, authority or even State, within its area of jurisdiction, for the enforcement of any rights provided by the Indian Constitution under Part III.
- Writ of Mandamus – This writ, which literally means “We Command”, is issued in cases where the court directs any public authority to discharge its duty well.
- Article 195, Principles of Mohammedan Law – This article talks about the validity of any Muslim marriage. According to this article, any Muslim who is of sound mind and has attained puberty can marry anyone of their choice. As long as the marriage is consensual, it cannot be considered void. In cases of Muslims with unsound mind and minor Muslims, it is their guardians whose consent is required in order to get into a contract of marriage. Here, puberty is said to be achieved at the age of 15 years.
Overview
- Petitioner no. 1 who was a Muslim of 17 years entered into a contract of marriage with petitioner no. 2 who was a Hindu of 33 years, against the wishes of their family members.
- A photograph as evidence of their marriage was placed on record before the Court.
- This was the first marriage of both parties but since this was an inter-religion marriage, the couple felt threatened by their family and thus filed a writ petition for protection in the High Court of Punjab & Haryana under article 226 of the Indian Constitution to protect their Right to Life and Personal Liberty guaranteed under article 21 of the Indian Constitution.
- The counsel from the petitioner quoted the case of Yunus Khan v. State of Haryana &Ors.to state that the marriage of a Muslim girl is governed by the Muslim Personal Laws according to which the marriage is valid.
- The Counsel also cited Kammu v. State of Haryana &Ors.wherein, it was held, as per the text “Book of Mohammedan Law” by Aqil Ahmad that, puberty and majority are one and the same thing in Muslim Personal Laws, according to which, in this case, the girl has attained majority, thus again making the marriage valid.
- Thus, it was contended that there is no point for the marriage to be invalid and thus protection should be granted to the petitioners.
Issues
- Whether the couple faced any threat to their freedom and liberty?
Judgement Analysis
- The Court noted that the marriage of a Muslim girl is governed by the Muslim Personal Laws.
- It stated, citing from Article 195 from the book “Principles of Mohammedan Law” by Sir Dinshah Fardauji, that since the girl had attained 17 years of age, she was a major and accordingly had all the rights to enter into a contract of marriage with a suitor of her choice.
- The Court stated that the marriage of a minor without the consent of its guardian is invalid, but in this case, the girl was a major and therefore there was no question for the marriage to be invalid.
- Just because their families did not support this union does not make it invalid, neither does it give their families a right to deprive them of their fundamental rights guaranteed by the State.
- The Court further stated that the matter at hand was not whether or their marriage wasvalid, but the fear that the petitioners face against their life and personal liberty, that had been brought to light in front of the Court.
- The Court thus directed the Senior Superintendent of Police, Merkotla to grant protection to the petitioners, if any threat to their life or personal liberty was apprehended.
- The Order of the Court made it clear that this protection which had been granted does not protect the petitioners from any legal action for any kind of violation of law, if committed by them.
Conclusion
A writ is filed before a High Court or any Court superior to it when there is a violation of one’s fundamental right by the State.Once a person attains the age of majority, it is up to their discretion to choose what is right or wrong for them. In this judgement, the Court made it clear that just because people do not act in accordance with the standards set with the society as long as they are following the rules of law, their family has no right to deprive them of their fundamental rights. That in India, the fundamental rights of an individual shall be protected at all costs, unless the law suggests otherwise.
