Supreme Court: Male aged between 18 to 21 years can not be punished for marrying adult female

Section 9 of the 2006 Act must be viewed in the backdrop of this gender dimension to the practice of child marriage. Thus, it can be inferred that the intention behind punishing only male adults contracting child marriages is to protect minor young girls from the negative consequences thereof by creating a deterrent effect for prospective grooms who, by virtue of being above eighteen years of age are deemed to have the capacity to opt out of such marriages. Nowhere from the discussion above can it be gleaned that the legislators sought to punish a male between the age of eighteen and twenty-one years who contracts into a marriage with a female adult. Instead, the 2006 Act affords such a male, who is a child for the purposes of the Act, the remedy of getting the marriage annulled by proceeding Under Section 3 of the 2006 Act. Hence, male adults between the age of eighteen and twenty-one years of age, who marry female adults cannot be brought under the ambit of Section 9, as this is not the mischief that the provision seeks to remedy.

3.9. Our views are supported by the marginal note of Section 9, which reads "Punishment for male adult marrying a child". It is well settled that where any ambiguity exists with regard to the interpretation of a legislative provision, the marginal note can be used in aid of construction, having regard to the object of the legislation and the mischief it seeks to remedy.

In view of the above, the words "male adult above eighteen years of age, contracts a child marriage" in Section 9 of the 2006 Act should be read as "male adult above eighteen years of age marries a child".

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1331 of 2013

Decided On: 07.11.2019

 Hardev Singh Vs.  Harpreet Kaur and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Aniruddha Bose, JJ.

Citation: AIR 2020 SC 37

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Whether child marriage prohibition Act applies to muslims?

 Therefore, we are of the view that any claim to perform marriage of a girl less than 18 years would not be for the welfare of the girl child, but such marriage would be against the interest of the girl, whereby education and empowerment of the girl is being denied unreasonably. In Saifuddin Saheb case (supra), it was held by the Hon'ble Supreme Court, that a divorced Muslim woman is also entitled to get maintenance from his husband like any other divorced wife of other religion, in view of Sec. 125 of the Code of Criminal Procedure. Such interpretation of the Hon'ble Supreme Court has properly protected any helpless divorced Muslim woman, which cannot be considered as a view against Muslims. Judicial wisdom in the landmark decision has ruled that a Muslim woman is equally entitled to get rights like any other woman of other religions. In the same way, Prohibition of Child Marriage Act, 2006 would enable Muslim girls to get proper education, empowerment and also opportunity of understanding to lead proper marital life like other girls, which cannot be considered as an Act by implementing the Act against Muslim Community in general. Providing education and empowerment to any girl child will certainly strengthen the society, which would not be detrimental to any religion.

IN THE HIGH COURT OF GUJARAT

Misc. Criminal Application (For Quashing and Set aside F.I.R./Order) No. 8290 of 2015

Decided On: 23.09.2015

Yunusbhai Usmanbhai Shaikh
Vs.
State of Gujarat and Ors.

Hon'ble Judges/Coram:J.B. Pardiwala, J.

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Whether child marriage Act will prevail over muslim personal law?

Gujarat High Court on Wednesday ruled that the Prohibition of Child Marriage Act, 2006 is a   secular law which specifically deals with the problem of child marriages. t is also held that the provisions of the Prohibition of Child Marriage Act, 2006 being a “Special Act” and being a subsequent legislation, to this extent and in case there is any conflict, will override the provisions of Muslim Personal Law, Hindu Marriage Act or for that matter any personal law. Religion of the contracting party does not matter.

Expressing his anguish over the marriage of the minor Muslim girl with a man 12 years elder to her, Justice Pardiwala observed, “This, in my view, is nothing, but the lack of maturity, understanding and education on the part of the girl. Sixteen years is not an age for a girl to get marries….Keeping this in mind those who have not allowed to change the Muslim Personal Law have done a great disservice to the community. At the same time, it is also true that as the social condition in the nation and throughout the world continues to change, the reality of life is, that even without a code of personal law of Muslim insofar as marriage is concerned, child marriage is going into oblivion.”

The Court was hearing a petition filed by the accused under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of an FIR filed against him under Section 366 (Kidnapping, abducting or inducing woman to compel her mar­riage, etc.) and Section 363 (punishment for kidnapping). He was also charged with an offence under Section 18 of the Prevention of Children from Sexual Offences Act, 2012.

The FIR had alleged that the accused had kidnapped the 16 year old daughter of the informant. It stated that the two were in love and that the accused kidnapped her from her lawful guardians.

The accused, on the other hand, had argued that the girl had left her parental home on her own volition and had decided to get married to the accused. Accordingly, Nikah was performed and the duo was staying together as lawfully wedded husband and wife.

The accused had contended that the two are governed by their personal law i.e. Mohammedan Law, according to which, a  Muslim girl, who is above 15 years of age or has attained puberty, is at liberty to marry even if the parents don’t consent to it.

The accused relied on the decision of the High Court in the case of Mujamil Abdulsattar Mansuri vs. State of Gujarat (Criminal Miscellaneous Application No. 19811 of 2013), submitting that the continuation of investigation by the police would be nothing, but an abuse of process of law. The facts of this case were almost identical to the facts in issue. In Mujamil Abdulsattar’s case, the High Court had held that the prescription of marriageable age has no application for girls belonging to the Mohammedan community as they are governed by the Muslim Personal Law (Shariat) Application Act, 1937. The Court in that case had however, not considered the effect of the PCM Act.

The State had contended that the decision of the Court in Mujamil Abdulsattar’s case needed to be re-looked in the light of the conflict between the Personal Muslim law and the Prohibition of Child Marriage Act, 2006. Additional Public Prosecutor K.L. Pandya submitted that the Prohibition of Child Marriage Act, 2006 is a special Act and it does not distinguish between the accused according to his community. He hence submitted that the Act would have application to people belonging to all religions and regions, except for the State of Jammu and Kashmir.

He further submitted that the consequences of committing an offence under the PCM Act cannot be avoided on the ground of belonging to a particular religion. He relied on the decision of the Supreme Court in the case of Shabana Bano v. Imran Khan, (2009) 12 SCC 62, wherein it was held that a divorced Muslim woman is entitled to claim maintenance from her husband under Section 125 of the Cr.P.C., even after expiry of the iddat period so long as she does not remarry.

Considering Shabana Bano’s case, the State submitted that the decision in Mujamil Abdulsattar’s case is not good law.

He consequently submitted that the marriage was in violation of the PCM Act as the girl is a minor, being below the age of 18 years. In such circumstances, it was prayed that the FIR should not be quashed and the Police should be permitted to complete the investigation.

The Court found merit in the State’s argument that a statute can always extinguish the customary law and the customary rights. The Court referred to the judgment of the Supreme Court in the case of Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and Others, 1960 AIR (SC) 1368, wherein it was held that Mohammedan law of transfer of property cannot override the statutory law.

The general proposition of law that a special enactment on a subject would prevail against the general principles, was laid down in the case of JK Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh & Ors., 1961 AIR (SC) 1170.

The Court further relied on a judgment of the Karnataka High Court in the case of Seema Begaum v. State of Karnataka, Writ Petition No. 75889of 2013. Karnataka HC in that case had held in clear terms that “no India citizen on the ground of his belonging to a particular religion can claim immunity from the application of the PCM Act.”

A judgment by the Division Bench of the Madras High Court in M. Mohamed Abbas v. The Chief Secretary, Government of Tamil Nadu, Writ Petition No. 3133 of 2015 was also referred to by the Court. Madras High Court had held that the provisions of the PCM act are in no way against the religious rights guaranteed under Articles 25 and 29 of the Constitution of India.

In the light of these established principles, the Court held that the proposition of law laid down in Mujamil Abdulsattar’s case is not good in law. It also rejected the argument that Personal law would prevail over the PCM Act, 2006.

With respect to the charge of kidnapping, the bench was of the view that no case was made out to even prima facie show that the girl had received a promise or assurance or any tempting offer from the accused, due to which she was forced to leave her parental home. Accordingly, it ruled that no case was made out under Sections 363 and 376 of IPC, including Section 18 of the POSCO Act. The FIR was quashed to that extent.

The Police was however asked to look into any violation of the provisions of the Prohibition of Child Marriage Act, 2006 and file appropriate report before the Trial Court to add provisions of this Act in the FIR.

The conflict between Indian law and personal laws has been highlighted time and again through various decisions of the Courts throughout the country. Gujarat High Court had in December last year, upheld the marriage of a minor Muslim girl, observing that, “According to the personal law of Muslims, the girl no sooner she attains the puberty or completed 15 years, whichever is earlier is competent to get married without the consent of her parents

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE

FIR/ORDER) NO. 8290 of 2015

YUNUSBHAI USMANBHAI SHAIKH Vs STATE OF GUJARAT 

CORAM:  MR.JUSTICE J.B.PARDIWALA

Date : 23/09/2015
Citation;2016 CRLJ717

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Whether prohibition of Child Marriage Act, 2006 will prevail over Hindu Marriage Act?

The said right of the
Hindu females to ask for divorce, does not mean that a petition before the
district court cannot be filed under Section 3 of the PCM Act. PCM Act as
noticed above is a secular law and is a latter enactment, which specifically
deals with the problem of child marriages. Religion of the contracting party
does not matter. PCM Act being a “special Act” and being a subsequent
legislation, to this extent and in case there is any conflict, will override the
provisions of HMA Act or for that matter any personal law.

IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (Crl.) No.338/2008, Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011,

Pronounced on: 27.07.2012

COURT ON ITS OWN MOTION (LAJJA DEVI)

VERSUS

STATE

CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE V.K. SHALI

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