Institute of Legal and Management Studies

The Supreme Court on Tuesday (August 19) dismissed a Special Leave Petition filed by the National Commission for the Protection of Child Rights (NCPCR) challenging a 2022 judgement of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage with a Muslim man and granted protection to the couple from threats.

A bench comprising Justice BV Nagarathna and Justice R Mahadevan observed that the NCPCR was a stranger to the litigation and had no locus standi to challenge the High Court's judgment.

Why should the NCPCR be challenging an order of the High Court granting protection to the life and liberty of the couple who were facing threats, asked the bench.

"NCPCR has no locus to challenge such an order...if two minor children are protected by the High Court, how can NCPCR challenge such an order....It is strange that the NCPCR, which is for protecting the children, has challenged such an order," the bench observed.

The NCPCR's counsel submitted that they were raising a question of law whether a girl, who has not attained the age of 18, can be held to have the capacity to enter into a legal marriage merely on the basis of personal law.

However, the bench expressed that no question of law arose in the case.

"No question of law arises, you challenge in an appropriate case please," Justice Nagarathna said. Dismissing the petition, the bench observed in its order :

"We fail to see how NCPCR can be aggrieved by such an order. If the High Court, in exercise of its power under Article 226, seeks to extend protection to two individuals, the NCPCR has no locus standi to challenge such an order. Dismissed."

The bench turned down the request of the NCPCR's counsel to keep the question of law open.

The bench also dismissed three other petitions filed by the NCPCR challenging other similar orders passed by the High Court.

In October 2022, the Supreme Court, while stating that it was not interfering with the relief granted to the couple, issued notice on the NCPCR's plea to consider the question of law. Senior Advocate Rajshekhar Rao was appointed as an amicus curiae.

The High Court's judgment came in a habeas corpus petition filed by a Muslim man, who alleged that his girlfriend was under illegal detention in her home and claimed that they wanted to get married.

The High Court granted protection to the couple noting that the girl, who has attained puberty, is of Marriageable Age under Muslim Personal Law. Relying on precedents, the High Court observed that the marriage of a Muslim girl is governed by Muslim Personal Law.

"The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', petitioner No.2 being over 16 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 21 years of age. Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law."

The High Court had noted that as per Article 195 from the book 'Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla', every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage, and Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

According to NCPCR's petition, the High Court's ruling is essentially allowing child marriage and is violation of the Prohibition of Child Marriage Act, 2006.

This apart, the judgement is against the spirit of the Protection of Children from Sexual Offences Act, 2012 (POCSO), which is also a secular law. As per the legislation, no child below the age of 18 years can give a valid consent, the NCPCR argued.

Justice Nagarathna, during the hearing, observed that romantic relationships between persons on the verge of majority age should be seen differently.

"There is POCSO Act, which takes care of the penal cases, but there are romantic cases also where teenagers on the verge of majority run away, where there are genuine romantic cases, they want to get married, don't read such cases the same as criminal cases. We have to differentiate between criminal cases and this," Justice Nagarathna said.

"Look at the trauma the girl undergoes if she loves a boy and he is sent to jail, because her parents would file a POCSO case to cover the elopement,"Justice Nagarathna said.

Case Details : NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS (NCPCR) Versus GULAAM DEEN AND ORS.| SLP(Crl) No. 10036/2022, NCPCR vs JAVED AND ORS Diary No. 35376-2022, NCPCR vs FIJA AND ORS SLP(Crl) No. 1934/2023