The Supreme Court on Friday issued notice to the Haryana government and others in response to a plea by the National Commission for the Protection of Child Rights (NCPCR) against an order of the Punjab and Haryana High Court, which allowed a Muslim girl to enter into a valid marriage upon attaining puberty.
Though the top court refused to stay the HC's order of September 30, 2022, it directed that it would not be used as a precedent for other similar cases.
Solicitor General Tushar Mehta, appearing for NCPCR, submitted before a bench of Chief Justice D Y Chandrachud and P S Narasimha that the personal laws were being claimed as a defence to commit criminal acts by way of marrying off young girls, who are 14, 15, or 16 years of age. He asked the court to stay the judgement.
Notably, the age of attaining puberty is 15 years, as per Muslim personal laws.
The bench, however, said, "If we stay the judgement, then the girl, who is married to her maternal uncle, has to go back to her parents, and she does not want to."
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The bench also said senior advocate Rajshekar Rao would be asked to assist the court in the matter, as he is the amicus curiae in a similar case.
The NCPCR, through its counsel Swarupama Chaturvedi, challenged the HC's order on the ground of being violative of the Prohibition of Child Marriage Act and the Prevention of Children from Sexual Offences Act.
It said the applicability of these laws could not be hindered on the basis of religion.
On a habeas corpus petition, the HC allowed the marriage, saying it would not be void.
The 16-year-old Muslim girl has expressed her desire to live with her 26-year-old husband. Their Nikah was performed on July 27, 2022. In its plea, the NCPCR said the HC ought to have considered the age of the girl as she was a minor in the eyes of the Pocso Act.
It also contended the HC was wrong in ignoring the fact that sexual intercourse with someone below the age of 18 years, even after marriage, is sexual assault under the Pocso Act.
The HC's order is in contravention of the provisions of the Prohibition of Child Marriage Act, 2006 as well, it said.