Sami Ahmad
NEW DELHI—Two central organizations, the National Commission for Protection of Child Rights (NCPCR) and the National Commission for Women (NCW), are in the Supreme Court of India with their pleas which is more or less a demand to disallow the marriage of Muslim girls aged 15-18, which is otherwise valid according to the prevailing Muslim Personal Law under the Constitution of India.
Interestingly at the same time, the Chief Justice of India (CJI) DY Chandrachud is reported to have pitched for a relook at the ‘Age of Consent’ under POCSO Act. In fact, different High Courts are pleading for this citing ‘romantic relationship’.
The Protection of Children from Sexual Offences (POCSO) Act enforced in 2012, as argued, bans any sexual relation below the age of 18 even with consent, and terms it a punishable crime. The NCPCR is fighting against a High Court judgment that declared the marriage of a 17-year-old Muslim girl as legal. The NCW is not directly asking to declare the marriage of Muslim girls aged 15-18 as invalid, but mainly pleading in the court to ask the government to make a uniform marriage age of 18 for all, implying that the allowed age of 15-18 years for Muslim girls to marry be scrapped.
In short, there are two arguments for practically abolishing the provision of Muslim Personal Law for marriage age allowed under the Constitution of India till now. One, forwarded by NCPCR, is that since the POCSO Act does not permit any sexual relation below the age of 18, the marriage age for Muslim girls aged between 15-18 gets annulled. The second one, forwarded by NCW, is the plea to make the marriage age uniform including the purported violation of the POCSO Act.
The CJI, as reported in the media, while speaking at the inaugural session of the two-day National Programme on Implementation of the POCSO Act 2012 argued the legislatures to take into consideration the growing concern around the ‘Age of Consent’ under this Act.
As reported by Livelaw.com, CJI Chandrachud observed, “You are aware that the POCSO Act criminalizes all sexual acts among those under 18 regardless of whether consent is present factually among the minors because the presumption of the law is that there is no consent in the legal sense among those below 18. In my time as a judge, I have observed that this category of cases poses difficult questions for judges across the spectrum. There is a growing concern surrounding this issue which must be considered by the legislature in view of reliable research by experts in adolescent healthcare.”
During his address, the CJI noted that one of the topics that would be discussed by the panel during the session pertains to judgments of the POCSO Courts in ‘Romantic Cases’ or cases where consenting adolescents engage in sexual activities.
According to Hindustan Times, the CJI’s remarks came against the backdrop of several high courts recently raising similar concerns and demanding that “romantic relations” between adolescents should not be criminalized.
The Paper adds that last month, the Delhi high court noted that the intention of the POCSO Act was to protect children from sexual exploitation and it was “never meant to criminalize consensual romantic relationships between young adults”. Likewise, the Meghalaya high court also observed in November that acts of mutual love and affection between a young couple will not amount to “sexual assault” under the concerned law.
Apparently, the pleas against the marriage of Muslim girls aged 15-18 citing the provisions of the POCSO Act make it an intriguing case by the CJI’s pitch for a relook at ‘Age of Consent’ and other courts’ observations.
While there is an argument to allow ‘consensual sexual relation’ unpunishable for adolescents below age 18, the top court is hearing please to disallow such relation under proper marriage.
Another intriguing aspect of this debate relates to two different observations by the Karnataka high court. In November, the Karnataka high court directed the Law Commission of India to reconsider the age of consent in the Act. But earlier, the same high court had observed that the POCSO Act supersedes personal law in the case of a Muslim minor girl’s marriage. This observation was made when rejecting an argument during the bail hearing of a man who had married a minor Muslim girl.
In the case, the accused was booked under POCSO Act and the Prohibition of child marriage Act for marrying and impregnating a minor Muslim girl who was around 17 years old.
The accused’s counsel argued that attaining puberty was the consideration for marriage under Mohammaden Law. The counsel further argued that since the girl had attained puberty at 15, the Prohibition of Child Marriage Act was not applicable. The court rejected this by stating that since POCSO is a special Act, it overrides personal law.
This NCW plea to fix a uniform age of marriage for all religions has got much importance as the Supreme Court sought a response from the Centre on it. A bench of Justice DY Chandrachud and Justice PS Narasimha also sought the response of the Law Commission.
In its plea, the NCW had cited a judgment of the Delhi High Court which allowed the marriage of a minor Muslim girl on the ground that it was permissible under the Muslim Personal Law. But this is not only such judgment.
Recently The Jharkhand High Court upheld the marriage of a 15-year-old Muslim girl as “absolutely fair according to Muslim Personal Law”. The single-judge bench of Justice SK Dwivedi pronounced the verdict while hearing a petition for quashing a criminal proceeding against 24-year-old Mohammed Sonu from Nawada in Bihar. The parents of the girl from Jugsalai in Jamshedpur had filed an FIR against Sonu. A case was registered under
Sections 366A and 120B of the IPC in Jugsalai police station.
The court in its order said Muslim Personal Law provides the liberty to Muslim girls aged 15 years and above to choose a match on their own.
The talk of ‘reliable research by experts in adolescent healthcare’ is also an important point to be discussed while deciding on the marriageable age and the age for consensual sex. There is also a talk of ‘Romantic Cases’ which the legal fraternity seemingly suggests to allow for the below 18 couples.
The question here is if reliable research by experts in adolescent health care may suggest a green signal for ‘Age of Consent’, why not the same be applied to marriage? The second question is if in the name of romantic relations, ‘Age of Consent’ gets reduced, why not for marriage? Why not marriage be considered as ‘romantic relation’?
This debate on Muslim girls’ age for marriage and the plea for reducing the ‘Age of Consent’ is also related to the Uniform Civil Code (UCC) which has become a political tool to show that the one party talking about it is going to humiliate the minority community especially the Muslims by that. This debate means that if a Uniform Marriage Age is necessary, with or without UCC, it should be as the Muslim Personal Law has it. The CJI pitch to reconsider the ‘Age of Consent’ seems worth applicable to the marriage too.
