Ban on child marriage applies to all religions; overrides muslim personal law: Kerala HC

The Urgent Need to Eradicate Child Marriage: A Call to Action for Modern Society

The present judgment highlights the critical importance of prohibiting child marriage in 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 severe health problems such as infant mortality, maternal mortality, and sexually transmitted infections. It often forces girls to drop out of school, limiting their education and future opportunities, and making them more vulnerable to domestic violence and abuse. Furthermore, child marriage perpetuates poverty, limits economic opportunities for individuals and communities, and leads to emotional and psychological trauma, including depression and anxiety. It also causes social isolation and disconnection from family and community and is a violation of international human rights laws and conventions.

The Bench in this matter advocates allowing children to study, travel, and enjoy life, and to decide about marriage upon reaching maturity. In modern society, there should be no compulsion for marriage, and the majority of girls should be encouraged to focus on their studies and enjoy their lives with their parents’ blessings. When they attain majority and decide that a partner is necessary, it should happen at an appropriate stage to eradicate child marriage from society. The Bench emphasizes that it is the duty of every citizen to prevent child marriage. Non-governmental organizations should inform the Child Marriage Prohibition Officer about any imminent child marriages. The Judicial First-Class Magistrate of the State should also be vigilant and take suo motu cognizance of reliable reports or information about child marriage. Additionally, the print and visual media should take initiatives to ensure that child marriage is eliminated from the State in the future. The Bench expresses confidence that all parties will fulfill their roles in protecting girls from child marriage.

The judgment you referenced from the Kerala High Court in Moidutty Musliyar & Ors vs Sub Inspector Vadakkencherry Police Station & Ors underscores a significant legal principle regarding child marriage and its applicability across all religions in India.

Here’s a summary of the key points and implications from the judgment:

1. Universal Application of the Prohibition of Child Marriage Act, 2006:
   • The Kerala High Court ruled that child marriage is unequivocally prohibited under Indian law, regardless of the religion of the individuals involved.
   • The Prohibition of Child Marriage Act, 2006 supersedes personal laws of various religions, including Muslim Personal Law, making it clear that the ban on child marriages applies universally.
2. Judicial Perspective:
   • Justice PV Kunhikrishnan emphasized that the Act is applicable to all Indian citizens, including those living abroad. This reflects a commitment to ensuring that child marriage is prevented irrespective of religious or cultural practices.
3. Emphasis on Citizenship Over Religion:
   • The judgment highlights the principle that citizenship should take precedence over religious identity when it comes to the application of laws. The notion is that laws designed to protect fundamental rights, such as the prohibition of child marriage, should apply uniformly to all citizens.
4. Historical Context and Personal Reflections:
   • The comparison to historical context and personal views about religion and legal reform, as mentioned with Sageer Khan’s sentiments, points to a broader discussion on equality and uniformity in legal practices. It reflects a desire for a legal system where personal laws do not create disparities in fundamental rights.
5. Legal and Social Impact:
   • This ruling could potentially impact how personal laws are interpreted and enforced, leading to greater uniformity in legal protections and rights, particularly in matters such as child marriage.

In essence, this judgment from the Kerala High Court reinforces the principle that fundamental laws, especially those concerning human rights and protections, should transcend religious boundaries to ensure equality and justice for all citizens.

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 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.”

Legislative Intent

The Bench notes in paragraph 8 that, “It is evident that the Parliament enacted the 2006 Act in response to increasing demands to strengthen the Child Marriage Restraint Act of 1929 (referred to as ‘Act 1929’). The aim was to enhance the effectiveness of its provisions and impose stricter penalties to eradicate or effectively prevent the practice of child marriage in the country. Under the 2006 Act, courts are granted the authority to issue injunctions against the solemnization of child marriages. Additionally, it includes a provision requiring the husband, or his guardian if he is a minor, to provide maintenance to the minor girl until she remarries.

The Bench clarifies in paragraph 9 that,

“Section 1(2) of the 2006 Act specifies that it applies throughout India and extends to all Indian citizens, both within the country and abroad. This provision makes it clear that the 2006 Act is applicable to all Indian citizens, regardless of their religion—whether Hindu, Muslim, Parsi, Christian, or otherwise. Thus, Section 1(2) of the Act confirms its applicability across the entire nation and to all Indian citizens, regardless of their location.”

To clarify, the Bench explains in paragraph 10 that,

“The phrase ‘it applies also to all citizens of India without and beyond India’ means that the 2006 Act is applicable to all individuals within India, including citizens residing there, as well as to Indian citizens living abroad. In other words, the Act has extraterritorial reach and applies to Indian citizens regardless of their location, even if they are outside India. Thus, the term ‘without and beyond India’ in the 2006 Act extends its jurisdiction to Indian citizens wherever they may be.”

Other Highlights

Here are the key points from paragraph 15:

• Reporting Mechanism: Rule 6 allows complaints or information about child marriages to be submitted to the Child Marriage Prohibition Officer in various forms—written, by phone, or email.
• Citizen Responsibility: Any citizen can report if they have reliable information about an impending or occurring child marriage. It is the duty of every citizen to inform the authorities.
• Vigilance Required: Citizens should be vigilant and proactive in reporting child marriages. Similarly, Child Marriage Prohibition Officers must be diligent in carrying out their responsibilities and enforcing the provisions of the Act 2006 and Rules 2008.

Here are the key points from paragraph 17:

• Complaint Eligibility: Complaints under subsection (1) of Section 13 can be filed by individuals with personal knowledge or reasonable belief, as well as non-governmental organizations with credible information about potential child marriages.
• Responsibilities: This underscores the responsibilities of both citizens and non-governmental organizations to report any credible information regarding the likelihood of child marriages.
• Action Required: Citizens and organizations should either approach the relevant court or inform the Child Marriage Prohibition Officer if they suspect that a child marriage may occur.

Personal Law vs. Statutory Law: Citizenship takes Precedence

The main argument presented in this case revolves around the interpretation and application of personal laws versus statutory laws in the context of child marriage among Muslims in India. The Bench articulates in paragraph 20 that the petitioner contends that Muslim personal law permits any Mohammedan of sound mind who has attained puberty to enter into a contract of marriage. Consequently, the petitioner argues that the provisions of the Prohibition of Child Marriage Act, 2006, should not apply to Muslims. However, the case’s registration, based on a complaint from a member of the Muslim community, demonstrates a significant point. Mr. Syed Muhammed submitted a complaint to the Child Development Project Officer in Alathur on December 16, 2013, leading to the filing of an FIR. This instance indicates that even members of the Muslim community are actively opposing child marriage, which underscores a broader societal recognition of the harms of child marriage, transcending religious boundaries.

This situation is described as a proud moment for all Indian citizens, as it highlights the prioritization of statutory law over personal or religious laws when it comes to protecting children’s rights. It showcases an increasing awareness among citizens about the detrimental effects of child marriage, regardless of their religious affiliations. This collective stance reinforces the commitment to uphold parliamentary laws designed to protect vulnerable individuals and promote societal well-being.

The crux of this significant judgment is articulated in paragraph 21, which states:

“The primary issue to be resolved is whether Mohammedans are exempt from the provisions of the Prohibition of Child Marriage Act, 2006. According to Section 1(2) of the Act, it applies to all citizens of India, both within and outside the country. Citizenship takes precedence over religion; a person is first and foremost a citizen of India, with religion being secondary. Therefore, I firmly believe that the Act applies to everyone, regardless of whether they are Hindu, Muslim, Christian, Parsi, or of any other faith.

Section 3 of the Majority Act, 1875, states that every person domiciled in India attains the age of majority at 18 years. However, Section 2(a) of the Majority Act, 1875, specifies that this does not affect a person’s capacity to act in matters such as marriage, dower, divorce, and adoption. Moreover, the Majority Act does not apply to the religious rites and customs of any class of Indian citizens. However, the Majority Act was enacted in 1875, whereas the Prohibition of Child Marriage Act came into force on November 1, 2007. I am of the considered opinion that the Prohibition of Child Marriage Act, 2006, supersedes the provisions of the Majority Act with regard to child marriage.”

In brief, it is crucial to note that the Bench clearly states in paragraph 23:

“I firmly believe that the provisions of the Prohibition of Child Marriage Act, 2006, apply to Muslims as well concerning child marriage. This is due to the importance of the Act and its status as a special Act enacted with a significant purpose. While the Principles of Mahomedan Law by Mulla state that every Mahomedan of sound mind who has attained puberty may enter into a contract of marriage, it must be remembered that every Indian is a citizen of the country first and a member of a religion second. When the Act prohibits child marriage, it supersedes Muslim personal law. Every citizen of this country is subject to the law of the land, which is the Prohibition of Child Marriage Act, 2006, regardless of their religion. Furthermore, the Apex Court addressed this issue in detail in Independent Thought v. Union of India and Another [2017 KHC 6719], where two separate judgments by two Honourable judges of the Supreme Court reached the same conclusions.”

The Bench unequivocally states in paragraph 27: “I fully agree with the above judgments. Article 25 of the Constitution speaks of freedom of conscience and the free profession, practice, and propagation of religion, while Article 29 deals with the protection of minority interests. When the Parliament enacted the Prohibition of Child Marriage Act, 2006, it intended for it to prevail over personal laws regarding child marriage. Although the Patna High Court in Md. Idris v. State of Bihar and Others [1980 KHC 1043] noted that under Mohammedan Law, a girl who has attained puberty can marry without her parents’ consent, and the Punjab and Haryana High Court in Kammu v. State of Haryana [MANU/PH/5039/2010] stated that a 15-year-old Muslim girl can marry without her guardian’s consent, and similarly, the Delhi High Court in Tahra Begum v. State Of Delhi & Ors. [2012 SCC Online Delhi 2714] held that a Muslim girl who has attained puberty can marry, with such a marriage not being void but voidable at her discretion upon reaching the age of majority—I respectfully disagree with these decisions. As I have noted, citizenship takes precedence over religion. When the Act of 2006 prohibits child marriage, it applies universally, regardless of religion, whether the parties are Hindus, Muslims, Christians, Parsis, etc.”

Delay in Social Issues

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.”

Conclusion

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.