Minor girl can marry without parents' consent under Muslim Personal law, observes Delhi HC

The court also observed that she would retain the right to cohabit with her husband, even if she is below the age of 18

Staff ReporterUpdated: Tuesday, August 23, 2022, 09:33 PM IST
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Delhi High Court | Delhi High Court website

The Delhi High Court has said that in a case when sexual intercourse has happened after marriage for a Muslim girl who has attained puberty, her husband will not be liable for being booked under the Protection of Children from Sexual Offences (POCSO) Act.

The couple was seeking a direction to grant them protection as the husband had been booked for rape and under POCSO. Justice Jasmeet Singh granted protection to the couple and noted in the order that the couple are lawfully wedded to each other and cannot be denied each other’s company which is the essence of marriage. It said POCSO Act will not be attracted in the case as physical relations were established after marriage and it was not a case of sexual exploitation, but a matter where two people were in love, got married and then had physical relations.

Advocate Abha Singh said regarding the order, that while the HC cannot be faulted, the time has come to make amendments to the law. She said the laws need to be more gender friendly and that the legislature needs to do something. “What if the girls at 14-15 are aspirational and want to study,” she asked, adding that the legislature needs to come forward and like triple talaq was struck out, there needs to be a parity between the laws and girls marrying below the age of 18 should be null and void.

Advocate Shabnam Kazi said regarding the order that the relationship in the specific case (of husband and wife) is recognized as per Muslim personal law and hence the order. She pointed out in the case, the minor was muslim and married and hence the defence of Muslim personal law allowing one to get married was considered by the court.

Recently, the Punjab and Haryana High Court had also stated in an order that a Muslim girl above the age of 15 years can enter into a contract of marriage with the person of her choice.

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