Muslim Personal Law upholds marriage to a girl above 15 years of age. Incidents of marrying a minor girl are common among Muslims. The Kerala High Court gave an important decision in the case of POCSO Act registered against a Muslim man. The court rejected the POCSO Act, which was registered after impregnating the minor wife. Whereas, two days later, on 12 October, a second single bench of the Kerala High Court held that Muslim personal law is ineffective before the POCSO Act. The special thing is that both the decisions are of the same High Court and have come in a span of two days.
On October 10, Justice Natarajan of the Single Bench struck down the POCSO Act itself in the judgment of Mohd Waseem Ahmed v State. Waseem was accused of marrying a minor girl and then having sex with her and getting pregnant. After the registration of the case, the matter came before the court. During the hearing of the case in the court, both parties expressed their willingness to agree with each other.
The High Court said that there is no further benefit in increasing the investigation into the matter. This will be a joke in the name of the legal process, while both parties want to resign. The court, while quashing the POCSO Act against Wasim, said that both have filed an affidavit to compromise. It should be noted that only two days after this case, Justice Rajendra Badamikar of another bench of the Kerala High Court said that Muslim personal law is ineffective in front of the POCSO Act. He said that POCSO is a special act. It has been prepared after due consideration and keeping in mind the legal aspects.
The other aspect of the matter is that the Muslim Personal Law upholds the marriage of a girl above the age of 15 years. Provided the girl has started menstruating. Incidents of marrying a minor girl are common among Muslims. But when a dispute starts between the couple, the courts have been giving their comments about it.
What do the judgments of other high courts say?
The Punjab and Haryana High Court had said some time back that after the age of 15, a Muslim girl can marry a person of her choice. They will not be subject to child marriage prevention law. The Delhi High Court had also said in an important decision that after 15 a Muslim girl is free to marry of her own free will without the consent of the parents. She can live with her husband. POCSO Act will not apply if there is a physical relationship.
However, on a decision of the Punjab and Haryana High Court, the NCPCR applied to the Supreme Court. The organization said that the High Court’s decision is in violation of the Prevention of Child Marriage Act (PCM Act), as it allows the marriage of minors.
The Kerala High Court has said in an important decision that the Muslim community is also not out of the JD of the Pocso Act. Of course, his personal law allows marriage and physical relations with a girl above the age of 15. But POCSO is a special act. It will be considered above Muslim law. The court said that the POCSO Act is above Muslim personal law.
Justice Rajendra Badamikar rejected the argument that Muslim law allows a minor girl to marry after the age of 15. In such a situation, the Prevention of Child Marriage Act along with the POCSO Act does not apply against him. The court said that POCSO is a special act. Hence these arguments cannot be accepted. The court said that the POCSO Act is outside the purview of Muslim personal law. The age of sexual intercourse has been fixed to above 18 years.