Shariat versus POCSO Act: Supreme Court must resolve the conundrum

Is it fair for a Muslim man to be criminally charged for marrying a minor girl when their personal law clearly allows marriage under the age of 18 years, judicial decisions attest the same, and no statute has unambiguously overruled this right?


LATELY, the Assam government has been taking strict action against those involved in child marriage. The government has been arresting men who married girls under the age of 18 years and others who facilitated those marriages, under the Prohibition of Child Marriage Act, 2006 (PCMA) and the Protection of Children against Sexual Offences Act, 2012 (POCSO Act). Though the government seeks to curb the evil of child marriage through public awareness, over 3,000 men have been arrested so far as part of the drive.

At the same time, the Supreme Court in October last year agreed to consider a plea by the National Commission for Protection of Child Rights against the Punjab and Haryana High Court’s judgement in Gulam Deen & Anr. versus State of Haryana & Anr. (2022) which allows Muslim girls to marry when they attain puberty.

Earlier this year, it passed an interim order prohibiting this rationale, as used in another judgment of the same high court, from being relied on as a precedent in any other case

Also read: Supreme Court issues notice in petition calling for POCSO Act to take precedence over personal laws

Different high courts have primarily taken two opposing positions with respect to this issue. One line of cases considers Muslim personal law to prevail over secular laws, validating the marriage of a Muslim minor. However, the other set claims that secular laws prevail over personal laws, and refuses to consider such a marriage as legally valid.

After a series of such conflicting opinions by various high courts, the question of which between Muslim personal law and secular laws holds primacy is expected to be conclusively resolved by the Supreme Court.

What is the conflict between Muslim personal law and secular laws?

Lawyer, legal writer and judge D.F. Mulla, in Article 195 of his treatise Principles of Mohammedan Law (1907) states that Muslim personal law (shariat) considers a girl capable of entering a contract of marriage when she attains puberty. However, the PCMA defines any girl below the age of 18 as a child and considers marriage involving such a child as voidable at the option of the child.

The marriage is illegal but not void per se. If the girl does not file a petition for a decree of nullity, the marriage does not become void.

The statute gives clarity on the status of marriage. However, legal obscurity arises with respect to the consequences of the joint application of the PCMA and the POCSO Act

Sections 910 and 11 of the PCMA punish the contracting, solemnising and promoting or permitting of a child marriage respectively. Sections 3 (penetrative sexual assault) and 5 (aggravated penetrative sexual assault) of the POCSO Act punish a man who has sexual intercourse with his minor wife.

Though shariat allows marriage with a girl below 18 years of age, there are legal obstructions to the conjugal life of the couple. The question that arises here is whether these secular laws override personal laws. Nowhere in the statutes is this explicitly specified. Neither is there a clarification with respect to the special nature of the laws to determine their overriding effect over personal laws. Some court judgments consider the POCSO Act as a special legislation which can override personal laws. However, other judgments have held the opposite view as well.

Also read: Are Pandemic Induced Child Marriages a Wakeup Call for India?

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 says that Muslim personal law decides the question of marriage when the parties are Muslims. However, Section 42A of the POCSO Act stipulates that in case of incompatibility with other laws, the POCSO Act would prevail.

The Bombay High Court, in the case of State of Bombay versus Narasu Appa Mali (1951), held that personal laws are not laws with respect to Article 13 of the Constitution. Hence, it is contentious whether the uncodified shariat is overridden by the POCSO Act through its Section 42A or not.

How have different high courts decided this question over the last few months?

Since the position is not clear through the relevant statutes, clarity has been sought from the judiciary. However, high courts have given differing opinions and preferred an approach of convenience to decide cases before them. Since the position is already a line in the water, such arbitrary decision-making by the high courts has made the water murkier.

The Punjab and Haryana High Court in September last year (Javed versus State of Haryana) held that the marriage of a Muslim girl would be governed by Muslim personal law. If a girl above the age of 15 years, on her own willingness, marries a person of her choice, the marriage would not be void under Section 12 (marriage of a minor child to be void in certain circumstances) of the PCMA.

Here, the girl was forcefully engaged to her maternal uncle by her parents, and leaving her custody with the parents would have meant curtailing her liberty. This factor greatly influenced the approach taken by the court.

Only a couple of months later, in November, the Kerala High Court (Khaledur Rahman versus State of Kerala) took the opposite stand and held that marriage is not a reason to ignore the applicability of the POCSO Act. The girl, a Muslim, was below the age of 18 years, and had been impregnated by her husband. The court took cognisance of the age, health and the fact that the girl was a native of West Bengal and was brought to Kerala after marriage. There were allegations of abduction by the husband as well. All these factors led to the court concluding that the POCSO Act, being a special law, would prevail over personal laws, and the marriage would not be considered legally valid.

A similar case was decided by the Delhi High Court in August last year (Fija versus State (NCT of Delhi)) in which the court validated the marriage between a minor Muslim girl and a Muslim man. There were allegations of physical abuse by the parents, and the minor was being forcibly married to someone else. Though she was impregnated by her husband, here the POCSO Act was not applied, and it was held that consensual sex between a husband and wife does not go against the object of POCSO Act and does not amount to exploitation.

The Karnataka High Court while considering a similar situation (Mohammad Waseem Ahamad versus State) in October last year found that there was an arranged marriage, validly performed according to Muslim traditions. The girl who was a minor during the marriage had become pregnant while a minor. A joint affidavit, showing the settlement of the dispute by the husband and the wife, led to the court holding that continuing the criminal proceedings would have been an abuse of the process of law as the victim may turn hostile during the trial. Hence, charges under the Indian Penal Code, the POCSO Act and the PCMA against the husband and his family were quashed.

These are just some of the cases decided last year that gave different answers to the same question. While one case holds consensual sex between a husband and a minor wife as penetrative sexual assault, another states that such consensual acts do not defeat the object of the POCSO Act. Similarly, while one case quashes criminal charges based on the joint affidavit of the spouses, another holds that compromise or marriage between parties cannot lead to the quashing of a first information report (Nardeep Singh Cheema @ Navdeep Singh Cheema versus State of Punjab (2022)). There exist many more conflicting decisions, delivered not just last year but in the previous years too, that add to the obscurity of the position.

Why must the Supreme Court step in?

In the recent crackdown on child marriage by the Assam government, those who married girls under the age of 14 years are being charged under the POCSO Act, and those aged between 14 and 18 years, under the PCMA. There is no statutory provision which classifies the victims based on age. Hence, this action of the executive without any legal backing further accentuates the ambiguity. It is a probable violation of Article 14 of the Constitution as well.

Factoring in all these issues, it is an apt time for the Supreme Court to step in and lay out the correct legal position. Since there exist judgements which validate child marriages, arresting these men in Assam is, in a way, going against those judicial decisions. Though a mistake of law is not a defence, a lack of clarity in the position of law is worth consideration. Is it fair to criminally charge a Muslim man for marrying a minor girl when their personal law clearly allows marriage under the age of 18 years, judicial decisions attest the same, and no statute has unambiguously overruled this right?

Also read: The need for revising the age of consent under the POCSO Act

Until now, the courts have been singling out provisions and facts using their discretion to reach a particular result. In most cases, the concern of the court seems to be the welfare of the minor spouse. Nevertheless, without any uniform adherence to precedents or reasoning, we are left guessing how a court would decide such a matter.

Since the judiciary gains its legitimacy from the mechanism of reasoned decision-making it follows, courts habitually failing to legally justify their decisions would risk their legitimacy and create a situation of legal uncertainty. Considering the communal tension surrounding this issue, seeking clarity through the reframing of the statutes will be a time-consuming process. Hence, it is crucial that the highest court of the land answers the question, which it is already seized of, as soon as possible.

The Leaflet