SC has an opportunity to make child marriage summarily illegal

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Published: September 13, 2019 1:43:38 AM

The girl has cited the SC verdict in Shafin Jahan vs Ashokan KM, in which it held that a consensual marriage between individuals who professed Islam, and had attained puberty was legal.

child marriage, illegal child marriage, Supreme Court, Supreme Court of India, Muslim girlIndian law addressed the evil of child marriage with the Child Marriage Restraint Act 1929.

With a 16-year-old Muslim girl having approached the Supreme Court (SC), challenging an order of the Allahabad High Court that nullified her “marriage”, the apex court must strike a blow against child marriage. The girl has cited the SC verdict in Shafin Jahan vs Ashokan KM, in which it held that a consensual marriage between individuals who professed Islam, and had attained puberty was legal. But, the fact is that the present case is still one of child marriage. As per Unicef, 27% of brides in India are married off as girls.

Indian law addressed the evil of child marriage with the Child Marriage Restraint Act 1929, setting the legal age for marriage at 18 for women, and 21 for men in 1978. The Hindu Marriage Act 1955 introduced criminality for child marriage. However, there is no such bar for Muslim girls in India, since personal laws have been left to the community. Indeed, the Delhi High Court ruled in 2012, citing a clutch of SC judgments, that a Muslim girl was free to marry after attaining puberty, i.e, 15 years, while retaining the right to have the marriage declared void when she turns 18. The Dissolution of Muslim Marriage Act 1939 further lowers the age of marriage for Muslim girls—Section 2(vii) states that a woman can claim dissolution of marriage if “she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years”, provided that the marriage has not been consummated. This is not to say that child marriage is more common amongst Muslims, but surely legal sanction for this is an anathema for a modern nation? While Punjab and Haryana High Court has stated that Muslim marriages are immune to the Prohibition of Child Marriage Act (PCMA), 2006, the Madras High Court and Gujarat High Court have given primacy to the PMCA. Given child marriage’s link with low educational attainment, and poor maternal and neonatal health outcomes, the present case is an opportunity to make child marriage illegal summarily.

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