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Synopsis

The Delhi High Court recently held that under the Muslim Law a young girl who has attained puberty has the right to marry without parental approval and the right to live with her husband, even if she is under the age of 18.

A bench of Justice Jasmeet Singh noted, "As per Mohammedan Law, a girl who had attained the age of puberty could marry without the consent of her parents and had the right to reside with her husband even when she was less than 18 years of age and thus otherwise minor girl."

The order has been passed after a Muslim couple who wed in March of this year in accordance with Muslim customs and procedures filed a petition seeking their protection and prevention of their separation from anyone.

The couple submitted that they were in love with each other and married on March 11, 2022, in accordance with Muslim rites and rituals by Maulana Imtiyaz of Jokihat Masjid, District Aauriya, Bihar, however, the parents of the girl, opposing the marriage of the couple, filed an FIR.

The young girl alleged that she was regularly beaten by her parents at home and her parents tried to forcibly marry her to someone else even though she was in love with another person.

Advocate Arvind Singh appearing for the couple submitted that the girl is pregnant, and the couple is expecting a child together. It was also submitted that the girl eloped with the person out of her own free will and consent and got married.

Referring to the judgment in the case of ‘Gulam Deen and another vs. State of Punjab and others’ by the Punjab & Haryana High Court, the bench noted, "As per Mohammedan Law girl who had attained the age of puberty could marry without the consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise minor girl."

The bench opined that "it is not a case of exploitation but a case where the petitioners were in love, got married according to the Muslim laws, and thereafter, had physical relationships."

On the issue of exploitation of a minor, the bench held that the object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure that they are not abused, and that their childhood and youth are protected against exploitation. It is not customary law specific, but the aim is to protect children under the age of 18 years from sexual abuse, Court said.

Allowing the plea, the bench said that being lawfully wedded to each other, the couple could not be denied the company of each other which is the essence of the marriage. "If the petitioners are separated, it will only cause more trauma to the girl and her unborn child," Court held.

Case Title: FIJA & ANR. Vs. STATE GOVT OF NCT OFDELHI & ORS.