"Today, if the legal marriage age is 18 years, we have to follow that," says author, journalist and social commentator, Ziya Us Salam.
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ON June 13, the Punjab and Haryana High Court, in the case of Gulam Deen & Anr. versus State of Punjab & Anr., held that the marriage of a Muslim girl is governed by Muslim personal law, and a Muslim girl above 15 years of age is competent to enter into marriage.
It was the contention of the counsel for the petitioners that under Muslim law, there is a presumption that the majority is attained at the age of 15 years, that is, at the age of attaining puberty. Justice Jasjit Singh Bedi, in his judgment, concluded that the marriage of the second petitioner (a Muslim girl), aged 16 years and the first petitioner (a Muslim man), aged 21 years was governed by Muslim personal law, and raised no apprehensions as to the validity of the marriage. Justice Bedi relied on the book 'Principles of Mahomedan Law' by lawyer, legal writer and judge Sir Dinshah Fardunji Mulla to determine the competency of the second petitionerto enter into a contract of marriage.
In the instant case, the petitioners had filed a Criminal Writ Petition, in the nature of a writ of mandamus, to issue directions for protection of their life and liberty from private respondents. The court issued a direction to the Senior Superintendent of Police, Pathankot (respondent no. 2), and observed, "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 of India".
The Prohibition of Child Marriage Act, 2006 prohibits child marriages in India, that is, marriage between a girl under 18 years of age and a boy under 21 years of age. The Prohibition of Child Marriage (Ammendment) Bill, 2021, as approved by the Union Cabinet on December 20, 2021, raises the legal age of marriage for women from 19 to 21 years of age. The Muslim Personal Law (Shariah) Application Act, 1937, deals with matters of marriage, divorce, inheritance, succession and maintenance for Muslims.
According to Ziya Us Salam, author, literary critic, journalist, and social commentator, the Prohibition of Child Marriage Act should apply to everyone. Salam says it is not a question of being a Hindu or Muslim, since even Islam prohibits child marriag,e and a girl who is married in childhood is given the right to divorce her husband once she comes of age and attains adulthood. "If somebody is 15 or 16 and is married off against her will, she can approach the court, but most importantly, Islam allows her to annul the marriage", says Salam.
According to Salam, "every era has its own marriageable age. Today, if the legal marriage age is 18, we have to follow that."
On the Amendment Bill that proposes to increase the legal marital age of girls to 21 years, Salam observed the need for the government to be realistic in a country like India. He said, "If today the government insists on the age of 21, then it is likely to be flouted in the countryside more often than not". Further, Salam clarified that particularly among the less educated communities, girls are often regarded to be a burden by parents. "It is important that the government arrives at the right marriage age and the society follows that. The government's decision has to be based on the reality of our society, and not on blind politics or blind copying of the west", Salam said.
In view of the present case, where the couple has consented to marriage and sought protection from their families, Salam said, "At the age of 15, you are not quite able to decide freely for yourself. A teenager cannot be expected to make a reasonable choice of choosing a life partner."