‘Shariat Act’ not applicable while considering age for Muslim Marriages in India

via K.M.MURALIDHARAN, Advocate published on July 13, 2008

Refer: Muslim girl under 18 can marry on attaining puberty: HC



 

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With due respect to the Delhi High Court, I am to point out that its recent judgment allowing Muslim girl’s marriage before attaining the age of eighteen, is wrong in law and shows poor understanding of the relevant provisions of laws.

The Child Marriage Restraint Act, 1929 prescribes a minimum age of eighteen years for girls and twenty-one years for men, to enter into valid and legal marriage. The said Act applies to the whole of India except Jammu & Kashmir, and to all citizens of India. For violation of the said provision, imprisonment has been prescribed. Therefore the said Act belongs to what is known in legal circles as a “Minor Criminal Act”. Indian Muslims, except those in Jammu & Kashmir, are also subject to this provision of law.

The Muslim Personal Law (Shariat)Application Act,1937[I call it “shariat Act’ for short] was passed subsequently. Section 2 of shariat Act, by explicit provision, excludes only “any customs or usages” only, to the contrary, in their application to Muslims. The provisions of the Child Marriage Restraint Act, 1929, are neither custom nor usage, but are part of statute, that is, an enactment by Parliament. Therefore, provisions of the earlier Act of 1929 cannot be excluded in the case of Muslims. They stand.

The High Court ruling, thus, is contrary to the law and cannot be sustained. In legal language it is a judgment per incuriam.

I feel the judgment should be challenged in appeal before the Supreme Court.

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