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The Supreme Court has admitted a petition challenging applicability of the Child Marriage Restraint Act to Muslims on the ground that Shriat Law allowed a girl to marry without her parent's consent after she attains puberty, reports PTI.
A Muslim boy in Hyderabad married a 17-year-old girl belonging to his community. On a complaint that he had married a minor, the local magistrate issued summons to him.
The husband challenged summons in the Andhra Pradesh High Court. However, the Court refused to intervene. He approached the Supreme Court appealing against the High order.
An Apex Court bench comprising Chief Justice B N Kirpal, Justice K G Balakrishnan and Justice Arijit Passayat admitting the appeal, stayed the High Court order of allowing criminal proceedings against the petitioner.
The Apex Court also impleaded Muslim Personal Law Board as a party to the petition which asked "in case of a conflict between the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 and the provisions of the Child Marriage Restraint Act, 1929 which will prevail?"
Appearing on behalf of the petitioner, senior advocate Amarender Sharan argued, "as Article 25 of the Constitution guarantees freedom to protect, profess and practice one's religion, the institution of marriage is a practice protected by this Article and any law infringing the Article is violative of the Constitution."
The girl - Mahjbeen Fatima - got married on February 24, 1997 at the age of 17. One Sayed Mazher Hussain filed a complaint alleging Fatima as a minor at the time of marriage.
However, the petitioner alleged the complaint has been filed by Hussain with a "mala fide and oblique motive" as he himself wanted to marry the girl despite her objections.
Arguing that there was nothing illegal in the marriage the counsel for the petitioner said the Shariat Act, 1937 being a subsequent and special act must prevail over the provisions of the earlier Child Marriage Restraint Act, 19290.
The petition further said Section 251 of Mulla's principles of Mohammadan law, 18th edition which talks about principles dealing with capacity for marriage, show "every Mohammadan of sound mind who has attained puberty may enter into a contract of marriage".
The explanation to the said Section says puberty is presumed in absence of evidence on the completion of the age of 15, it said.
"When Quran and Hadis, two main
recognised sources of Muslim Law, allow marriage of a girl who has reached
or attained or crossed the age of puberty, will it not amount to injustice
to punish those who allegedly arranged and solemnised the marriage of a
girl," Saran said.
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