The minimum age for marriage in India is 21 years for boys and 18 years for girls. Moreover, the Government of India has already presented a Bill to raise the minimum legal age of marriage for women from 18 to 21 years. This Bill, if enacted will prevail over all the personal laws and the minimum age of marriage would be 21 years old for women irrespective of religion and personal laws. However, as of date, personal laws prevail over the central legislations in the case of Muslims as had been reiterated by the Punjab and Haryana High Court in the case of Nargis and Anr. v. State of Punjab and Ors. [i]
Decision of the High Court
In the instant case, a Muslim Girl aged 17 years had married a Hindu Man aged 33 years. They apprehended dangers at the hands of their family who had been threatening the married couple that they would falsely implicate them in criminal cases and end their marriage. Moreover, the couple also feared that they might be a victim of honour killing due to the constant threats given by their families. A Writ Petition before the Punjab and Haryana High Court under Article 226 of the Indian Constitution, was filed on their behalf by Advocate Jaspreet Singh Benipal of NRI Legal Consultants. The petitioners prayed for the issuance of a writ in the nature of mandamus in order to protect their life and liberty.
One of the questions which had been posed before the High Court was whether the marriage between the couple is valid or not. The Court took note of its earlier decision in the case of Yunus Khan v. State of Haryana & Ors.[ii]where it was noticed that the marriage of a Muslim girl is governed by the personal law of the Muslims. The Muslim Law allows that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.
In the case of Kammu vs. State of Haryana & Ors.,[iii]the Co-ordinate bench of the high court held that as per the text Book of Mohammedan Law by Aqil Ahmad, “Puberty and majority” in the Muslim law, are one and the same. The presumption is that a person attains majority at the age of 15 years. It should be noted that the marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of the majority. A boy or girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere if the match is equal. The High Court after analysing the decisions observed that the law is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. Therefore, a Muslim girl who has completed 15 years of age is competent to marry without the consent of her guardian.
The High Court further stated that the right of the couple to ask for protection of their life and personal liberty is a Fundamental Right under Article 21 of the Constitution. It stated that “Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution.” The Court granted protection to the couple under Article 21 but did not provide them immunity from any legal action if they had committed a violation of any law.[iv]
The decision of the Court was significant as it clarified that for Muslims, marriage is still governed by their personal laws as of the date and they have the independent right to choose and marry their life partner once they have achieved the age of 15 years. Moreover, if a couple’s life and liberty are under threat, the Court will provide protection to them, without going into details about the legality of the marriage. This has left the room open for further discussion about the minimum marriage age in India.
[i] CRWP-12067-2021, Punjab and Haryana High Court, decision given on 22.12.2021.
[ii] 2014(3) RCR (Criminal) 518.
[iii] 2010(4) RCR (Civil) 716.