The petition, filed by the National Commission for Women, seeks to prohibit marriage of minors under Muslim personal law.
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THE Supreme Court has agreed to examine the petition filed by the National Commission for Women seeking equal application of the Protection of Children from Sexual Offences ('POCSO') Act, 2012, irrespective of religion and personal laws. A bench comprising Chief Justice of India ('CJI') Dr. D.Y. Chandrachud and Justice P.S. Narasimha, on December 9, issued notice to the Union Government and the Law Commission of India, calling their responses to the petition.
The petition claims that it seeks to enforce the fundamental rights of minor Muslim women who have contracted marriage before attaining the age of majority, whether consensually or otherwise.
It states that the minimum age of marriage under various personal laws other than the Muslim personal law is consistent and in consonance with other prevailing penal laws.
"Under the Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and Hindu Marriage Act, 1955, the minimum age of marriage for a man is 21 years and for a woman is 18 years. However, under the Muslim personal law in India, which continues to remain uncodified and unconsolidated, persons who gave attained puberty are eligible to get married i.e. on attaining the age of 15 years, while they are still minor", the petition states.
The petition, thus, argues that this is not only arbitrary, irrational and discriminatory, but also violative of the provisions of penal laws.
"The [POCSO] Act, 2012 has been enacted to protect children (below 18 years), particularly women, from offences of sexual assault, sexual harassment, etc. As per Section 375 of the Indian Penal Code, 1860, which defines the offence of "rape", the consent of women below the age of 18 years is not valid consent in the eyes of the law and any sexual activity, as defined therein, with a minor, with or without consent, is a punishable offence.", the petition argues.
It goes on to state that the solemnisation of a marriage of a man below the age of 21 years and of a woman below the age of 18 years is a punishable offence under the Prohibition of Child Marriage Act, 2006. Thus, the Muslim personal law, which permits children to get married upon attaining puberty, that is, at the age of 15 years, is in the teeth of the aforesaid penal provisions, the petition contends.
"The distinction/classification on the basis of 'puberty' has no scientific backing or reasonable nexus with the eligibility for marriage/capacity to get married. A person who has attained puberty may be biologically capable of reproduction however, the same does not imply that the said person is mentally and psychologically mature enough to get married and physically mature to engage in sexual acts and consequently, bear children", the petition says.
If the minimum age of marriage under Muslim personal law continues to be 15 years in contravention of penal laws, minor Muslim women will be forcefully married off and will become victims of possible sexual abuse, sexual exploitation or sexual harassment at the behest of their husbands on the pretext of consent, the petition asserts.
The plea also seeks direction from the court to declare 18 years as the minimum age for both men and women for being eligible to get married irrespective of their religion.
The age of consent for sex in India is 18 years under the POCSO Act. Consent given by a person aged below 18 is not regarded as valid, and sexual intercourse with them amounts to rape.
A day after issuing notice on the petition, CJI Dr. Chandrachud appealed to Parliament to have a relook at the issue of the age of consent under the POCSO as it, according to him, posed difficulties for judges examining cases of consensual sex involving adolescents. He was speaking at the annual stakeholder's consultation on the POCSO Act, alongside Union Minister for Women and Child Development, Smriti Irani.
A recent study by Enfold Proactive Health Trust and UNICEF-India found that one in every four cases under the POCSO Act in West Bengal, Assam and Maharashtra constituted "romantic cases", where the victim was found to be in a consensual relationship with the accused. It added that in nearly half of the "romantic cases" (46.6 per cent), the girl was between 16 to 18 years old.