September,25,2015: Justice J. B. Pardiwala of Gujarat High Court on Wednesday ruled that the Prohibition of Child Marriage Act, 2006 is a secular law which specifically deals with the problem of child marriages. It is also held that the provisions of the Prohibition of Child Marriage Act, 2006 being a “Special Act” and being a subsequent legislation, to this extent and in case there is any conflict, will override the provisions of Muslim Personal Law, Hindu Marriage Act or for that matter any personal law. Religion of the contracting party does not matter.
Expressing his anguish over the marriage of the minor Muslim girl with a man 12 years elder to her, Justice Pardiwala observed, “This, in my view, is nothing, but the lack of maturity, understanding and education on the part of the girl. Sixteen years is not an age for a girl to get marries….Keeping this in mind those who have not allowed to change the Muslim Personal Law have done a great disservice to the community. At the same time, it is also true that as the social condition in the nation and throughout the world continues to change, the reality of life is, that even without a code of personal law of Muslim insofar as marriage is concerned, child marriage is going into oblivion.”
The Bench was hearing a petition filed by the accused under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of an FIR filed against him under Section 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.) and Section 363 (punishment for kidnapping). He was also charged with an offence under Section 18 of the Prevention of Children from Sexual Offences Act, 2012.
The FIR had alleged that the accused had kidnapped the 16 year old daughter of the informant. It stated that the two were in love and that the accused kidnapped her from her lawful guardians.
Councel for the accused, on the other hand, had argued that the girl had left her parental home on her own volition and had decided to get married to the accused. Accordingly, Nikah was performed and the duo was staying together as lawfully wedded husband and wife.
The accused had contended that the two are governed by their personal law i.e. Mohammedan Law, according to which, a Muslim girl, who is above 15 years of age or has attained puberty, is at liberty to marry even if the parents don’t consent to it.
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