The Delhi High Court has said that a girl, who has attained puberty, can marry without the consent of her parents under Muslim laws while hearing a plea seeking protection to a couple who got married against the consent of girl’s parents.
Justice Jasmeet Singh observed, “A girl on attaining puberty could marry without the consent of her parents under the Muslim laws and has the right to reside with her husband even when she is otherwise minor. The provisions of POCSO will not apply to the husband.”
The bench further said that the state has nothing to do with a girl’s personal space if she is married out of her own will and is happy.
The bench made this observation while hearing the plea of a couple who got married on March 11. According to the parents, their daughter was 15 years old while the man was 25 years when they got married.
“The doing of the same will tantamount to the encroachment of personal space by the State,” the Court said.
The parents of the girl, on March 5, registered a case in Dwarka district under sections 376 of the Indian Penal Code and section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act alleging that the minor was kidnapped.
The couple had moved to High Court in April seeking police protection and a direction that nobody separate them from each other. During the hearing, her counsel produced her Adhar Card which showed that she is over 19 years old. However, the counsel for the girl told the court that she is pregnant and had eloped with the man out of her own free will and consent.
The girl informed the court that she was regularly beaten by her parents and they forcibly tried to marry her to someone else. The police had recovered the girl from the custody of the man on April 27. She was produced before the child welfare committee (CWC). CWC had given a direction to keep her at the Nirmal Chhaya complex.
“It is thus clear that that as per Mohammedan Law, the girl who had attained the age of puberty could marry without the consent of her parents and had the right to reside with her husband even when she was less than 18 years of age and thus otherwise a minor girl,” observed justice Singh in an order of August 17, 2022, which was released on Monday.
The court reads, “In this case, the petitioners were in love, got married according to the Muslim laws and thereafter had a physical relationship”.
The court also directed the police to ensure the protection of the couple.