Ban on Child Marriage Applies to all Religions; Overrides Muslim Personal Law: Kerala HC
It is definitely most imperative to know that while ruling on a very significant legal point pertaining to child marriages, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Moidutty Musliyar & Ors vs Sub Inspector Vadakkencherry Police Station & Ors in Crl.MCNo.2515 of 2016 and cited in Neutral Citation No.: 2024:KER:56284 that was pronounced as recently as on 15 July, 2024 has minced absolutely just no words to hold unequivocally that child marriage is prohibited by law for all, regardless of the religion they follow. It was also made clear that the Prohibition of Child Marriage Act, 2006 supersedes the Muslim Personal Law. We need to note that the Single Judge Bench of the Kerala High Court comprising of Hon’ble Mr Justice PV Kunhikrishnan noted that as per Section 1(2) of the Prohibition of Child Marriage Act, the ban on the marriage of minors is applicable to all citizens of India even those who live beyond its borders. I am in tears to read what Hon’ble Mr Justice PV Kunhikrishnan says in next two lines (as my very best friend Sageer Khan in Mackronia locality in Sagar in Madhya Pradesh in 1993 too echoed the same sentiments while very strongly feeling that Muslims enjoy maximum liberty in India all over the world and also said further that polygamy was abolished for Hindus and others in 1955 but we Muslims are still enjoying in India which must be abolished for us also and there should be no such discrimination between different religions and it is the root cause of conversions in India which cannot be ever justified under any circumstances as we are all Indians first and our religion comes next) that, “A person should be a citizen of India first, and thereafter only his religion comes. Religion is secondary and citizenship should come first. Therefore, I am of the considered opinion that, irrespective of religion, whether a person is Hindu, Muslim, Christian, Parsi etc., Act 2006 is applicable to all.” India definitely needs such broad minded Judges who place nation first and religion next just like my very best friend Sageer Khan! No denying or disputing it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Kerala High Court comprising of Hon’ble Mr Justice PV Kunhikrishnan sets the ball in motion by first and foremost stating in the background in para 1 that, “Kerala is known for its 100% literacy. But, it is sad to hear that, even after the enactment of the Prohibition of Child Marriage Act decades ago, there are allegations of Child Marriage in Kerala. The saddest thing is that the petitioners herein are trying to justify the alleged child marriage stating that as per Mohammedan Law, a Muslim girl enjoys a religious right to marry after attaining puberty irrespective of age, even though the Prohibition of Child Marriage Act apply to all the citizens of India without and beyond India.”
To put things in perspective, the Bench envisages in para 2 while dwelling on prosecution case that, “The prosecution case as per Annexure-I final report and Annexure-II FIR is like this : Integrated Child Development Scheme Officer (ICDS Officer), Vadakkencherry submitted a complaint to the Circle Inspector of Police, Vadakkencherry informing that a child marriage happened within the jurisdiction of ICDS Alathur Additional. The ICDS Officer relied on a complaint submitted by one K. Syed Muhammed in which it is stated that a child marriage happened on 30.12.2012. Based on this information and complaint, Crime No. 490/2014 was registered by the Vadakkencherry Police Station alleging offences punishable under Sections 10 and 11 of the Prohibition of Child Marriage Act, 2006 (for short ‘Act 2006’). Annexure-II is the FIR. After investigation, Annexure-I final report is filed by the investigating officer against five accused, who are the petitioners in this Crl.M.C, alleging offences punishable under Sections 10 and 11 of the Prohibition Act, 2006. The prosecution case is that on 30.12.2012, the 1st accused conducted the marriage of his minor daughter with the 2nd accused as per the religious tenets and rites in Islam. Accused Nos. 3 and 4 are the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee. The 5th accused is the witness who signed the record regarding the conduct of the marriage. Therefore, it is alleged that all the accused committed the offences. The petitioners who are the accused in Annexure-I final report submitted that even if the entire allegations are accepted, no offence under Sections 10 and 11 of the Prohibition Act, 2006 is attracted and therefore, the continuation of the proceedings is an abuse of process of court. Hence, this Crl.M.C. is filed.”
As we see, the Bench observes in para 8 that, “From the above it is clear that the Parliament enacted Act 2006 in response to mounting calls for strengthening the provisions of the Child Marriage Restraint Act 1929 (for short ‘Act 1929’) more effective and for making the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnization of child marriage in the country. As per the provisions of the Act 2006, the courts are empowered to issue injunctions prohibiting the solemnisation of marriage. It also contains a provision requiring the husband or if he is a minor at the material time, his guardian to pay maintenance to the minor girl until her remarriage. There are other salient provisions also which will be discussed in detail later.”
As things stands, the Bench specifies in para 9 that, “Section 1 (2) of Act 2006 says that, it extends to the whole of India and it applies also to all citizens of India without and beyond India. From the above provision itself it is clear that if a person is a citizen of India, Act 2006 is applicable irrespective of his religion, whether he is a Hindu, Muslim, Parsi, Christian etc. Therefore, from Section 1(2) of Act 2006, it is clear that it extends to the whole of India and it applies also to all citizens of India without and beyond India.”
For clarity, the Bench clarifies in para 10 that, “What is the meaning of the sentence ‘it applies also to all citizens of India without and beyond India’?. This means that Act 2006 applies to all persons within India, i.e., citizens residing in India and it is also applicable to Indian citizens outside India i.e., Indian citizens living abroad. In other words, the Act has extraterritorial jurisdiction, and it applies to Indian citizens regardless of their location even if they are residing outside India. Therefore, the phrase ‘without and beyond India’ in Act 2006 extends the law to Indian citizens regardless of their location.”
Do note, the Bench notes in para 15 that, “Rule 6 says that a complaint/information to the Child Marriage Prohibition Officer may be filed/given by any person in any form, written, phone, e-mail etc., that means any citizen can inform the Child Marriage Prohibition Officer if he got any reliable information that a child marriage is going to happen or a child marriage happened at any place. It can be even by phone or e-mail to the Child Marriage Prohibition Officer. So it is the duty of every citizen of the State to inform the Child Marriage Prohibition Officer if information is received about any child marriage in the State. The citizens of the State should be alert about the above provision and the Child Marriage Prohibition Officers also should be vigilant about their duties and powers as per Act 2006 and Rules 2008.”
To be sure, the Bench underscores in para 17 stating that, “A complaint under sub section (1) of Section 13 can be made by any person having personal knowledge or reason to believe and a non-governmental organization having reasonable information, relating to the likelihood of taking place of solemnization of a child marriage or child marriages. That shows the duties of the citizens and non-governmental organizations etc., once again. Therefore, as observed by me earlier, it is the duty of every citizen, non-governmental organization to approach the court concerned or at least to inform the child marriage prohibition officer, if there is any likelihood of taking place solemnization of a child marriage or child marriages.”
It would be worthwhile to note that the Bench articulates in para 20 that, “The main contention raised by the petitioner in this case is that the personal law of Muslims permits every Mohammedan of sound mind, who has attained puberty to enter into a contract of marriage. Therefore, the contention of the petitioner is that the provisions of Act 2006 is not applicable to Muslims. I am happy that this case is registered based on a complaint from a person who belongs to Muslim community. One Mr. Syed Muhammed submitted a complaint to the Child Development Project Officer, Alathur on 16.12.2013, based on which the officer concerned submitted a complaint to the police and subsequently, Annexure-II FIR was registered. That shows that even the members of the Muslim community are coming forward against child marriage in their community and that is a proud moment to every citizens of India because, to uphold an Act of parliament, religion or personal laws of religions are not at all a consideration for them. The same will show that every citizen of this country is aware of the evilness of child marriage irrespective of their religion.”
Most significantly, what constitutes the real crown of this notable judgment is encapsulated in para 21 postulating that, “The first point to be decided is whether the Mohammedans are exempted from the applicability of Act 2006. As I mentioned earlier, as per Section 1(2) of Act 2006, the same is applicable to all citizens of India without and beyond India. A person should be a citizen of India first, and thereafter only his religion comes. Religion is secondary and citizenship should come first. Therefore, I am of the considered opinion that, irrespective of religion, whether a person is Hindu, Muslim, Christian, Parsi etc., Act 2006 is applicable to all. Section 3 of the Majority Act, 1875 says that, every person domiciled in India shall attain the age of majority on his completing the age of 18 years and not before. But, Section 2(a) of the Majority Act, 1875 says that, nothing herein contained shall affect the capacity of any persons to act in the following matters(namely), marriage, dower, divorce and adoption. Section 2 says that to the religion or religious rites and usages of any class of citizens of India also, the Majority Act is not applicable. But, the Majority Act is enacted in the year 1875. Act 2006 come into force on 01.11.2007. I am of the considered opinion that the Act 2006 will override the provisions of the Majority Act as far as child marriage is concerned.”
Briefly stated, it cannot be lost sight of that the Bench clearly holds in para 23 that, “But, I am of the considered opinion that, the provisions of Act 2006, which was subsequently enacted, is applicable to Muslims also as far as child marriage is concerned. This is because of the importance of Act 2006 and also because it is a special Act enacted with a great object. It is true that the Principles of Mahomedan Law by Mulla says that, every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. But, as I observed earlier, every Indian is a citizen of the country first and thereafter only he becomes a member of the religion. When the Act 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion. Moreover, the Apex Court considered this point in detail in Independent Thought v. Union of India and Another [2017 KHC 6719]. Two separate judgments were delivered by the two Honourable judges of the Supreme Court in the above case, but with same conclusions.”
Most forthrightly, the Bench propounds in para 27 that, “I am in perfect agreement with the above judgments. Article 25 of the Constitution only says about freedom of conscience and free profession, practice and propagation of religion. Article 29 of the Constitution deals with Protection of interests of minorities. When the Parliament enacted the Prohibition of Child Marriage Act, 2006, I am of the considered opinion that the same will prevail over personal laws as far as child marriage is concerned. It is true that the Patna High Court in Md. Idris v. State of Bihar and Others [1980 KHC 1043] observed that under the Mohammedan Law, a girl who has attained the age of puberty, can marry without the consent of her parents. Similarly the Punjab and Haryana High Court also observed in Kammu v. State of Haryana [MANU/PH/5039/2010] to the effect that a Muslim girl at the age of 15 years can marry without the consent of her natural guardian under the Mohammedan Law and as on date, i.e., at the age of 15 years, she has expressed her desire to accompany a person who married her, it cannot be said that he is keeping her in the illegal custody. Again, the Delhi High Court also observed in Tahra Begum v. State Of Delhi & Ors. [2012 SCC Online Delhi 2714], that a Muslim girl who has attained puberty i.e., 15 years can marry and such a marriage would not be a void marriage. However, it is also observed that she has the option of treating the marriage as voidable, at the time of her attaining the age of majority. I am in respectful disagreement with the above decisions of the Patna High Court, Punjab and Haryana High Court and the Delhi High Court. As I observed earlier, religion is secondary and citizenship is primary. When Act 2006 prohibits child marriage, the same is applicable to all, irrespective of religion, whether the parties are Hindus, Muslims, Christians, Parsi, etc.”
It is worth noting that the Bench notes in para 29 that, “The other contention raised by the petitioners is that there is 1½ years’ delay in filing the complaint after the marriage. A perusal of the original complaint filed by Mr.K.Syed Muhammed which is appended along with Annexure-II FIR would show that it is dated 16.12.2013 and the alleged marriage was on 30.12.2012. It is true that there is some delay in filing the complaint. The purpose of Act 2006 is to eradicate child marriage. When a citizen, that also a person belonging to Muslim community, submits a complaint stating that there is a child marriage in his religion, the Court cannot reject the same saying that there is a delay in submitting the complaint. Therefore that contention is also rejected.”
Most remarkably, the Bench points out in para 30 that, “The prohibition of child marriage is important in the modern society. Child marriage denies children their basic human rights, including the right to education, health and protection from exploitation. Early marriage and pregnancy can lead to health problems such as infant mortality, maternal mortality and sexually transmitted infections. Child marriage often forces girls to drop out the school, limiting their education and future opportunities. Child brides are more vulnerable to domestic violence and abuse. Child marriage can perpetuate poverty and limit economic opportunities for individuals and communities. Child marriage can lead to emotional and psychological trauma, including depression and anxiety to the children. Child marriage can lead to social isolation and disconnection from the family and community. Moreover, child marriage is a violation of international human rights law and conventions as well. Let the children study according to their wishes. Let them travel, let them enjoy life and when they attained maturity, let them decide about their marriage. In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, of course with the blessings of their parents. When they attain majority and decided that a partner is necessary in their life, let it happen at the appropriate stage so that child marriage can be eradicated from the society. As I mentioned earlier, it is the duty of every citizen to see that there is no child marriage. It is also the duty of the nongovernmental organizations to inform the Child Marriage Prohibition Officer, if any information is received about the likelihood of taking place of solemnization of child marriage. The Judicial First Class Magistrate of the State also should be alert and should take suo motu cognizance, if any reliable report or information is received about child marriage. Let the print and visual media also take initiative to see that there is no child marriage in the State in future at least. I am sure that, all of them will do their job to see that our girls are protected from child marriage.”
As a corollary, the Bench then holds in para 31 that, “In the light of the discussion stated above, I am of the considered opinion that, no case is made out by the petitioners to quash the proceedings. But I make it clear that the petitioners can adduce evidence to prove their case before the trial court at the appropriate stage. I also make it clear that, at the time of trial, the learned Magistrate will decide the matter untrammeled by any observation in this judgment on merit except on questions of law decided by this court. Before parting with the case, I record my deep appreciation to Advocate K.M.Firoz, the Amicus Curiae, who helped this court by furnishing all relevant materials.”
Finally, the Bench then concludes by directing in para 32 that, “In the light of the discussion stated above, there is no merit in this Criminal Miscellaneous Case. Consequently, this Criminal Miscellaneous Case is dismissed.”
In sum, the Kerala High Court has very rightly held that ban on child marriage applies to all religions. It was also made clear that the Child Marriage Prohibition Act supersedes Muslim personal law which allows Muslims who have attained puberty to marry. It also expressed happiness that even the members of the Muslim community are coming forward against child marriage in their community and that is a proud moment to every citizen of India. No denying or disputing it!
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