The development in the law and science has also brought progress in the institution of marriage. Earlier, where marriage used to be a social construct and due to the absence of universal acceptance of the minimum age of marriage, the institution was governed based on religious personal laws. But, the development of science & law brought the question of health & social development in marriage. Further, social development & question of empowerment of women forced the government to increase the age of marriage. The result of these questions is that the government is now discussing increasing the minimum age of marriage for girls from 18 to 21 years. And, the recent judgment of the Punjab & Haryana High Court has once again ignited the prevailing debate on laws governing marriages in India.
Muslims’ age of Puberty is 15 years
On 13 June 2022, hearing a case related to the age of marriage for Muslim girls, the High court of Punjab & Haryana had upheld the contention that in Muslim law, puberty and majority are one & the same and that there is a presumption that a person attains majority at the age of 15 years and they are at liberty to marry anyone he or she likes and the guardian has no right to interfere.
Upholding the personal law of the Muslims in the case of marriage of a Muslim girl, the Court validated the marriage of a girl who was 16 years old on the day of marriage. Relying on Article 195 of the book ‘Principles of Mohammedan Law’ by Sir Dinshah Fardunji Mulla, the Court reached the decision, which presumes puberty at the age of fifteen years.
Read More: Can only God help Muslim women?
Marriages in India
Although the ‘secular’ law, Prohibition of Child Marriage Act 2005 prescribed the minimum age of marriage for girls & boys as 18 & 21 years, respectively, marriages in India are governed according to the personal law of every religion. Except, for Muslims, all religious laws have increased the minimum age of marriage according to the policy governing marriages. Moreover, Prime Minister Narendra Modi has also argued to increase the minimum marriage age of girls to 21 years.
Govt decision to raise women's marriage age to 21 is causing pain to some: PM Narendra Modi's jibe at rivals
— Press Trust of India (@PTI_News) December 21, 2021
But personal laws governing marriages and decisions followed by Courts are proving to be the main hindrances in the universalization of the minimum age of marriage in India. Although Priyank Kanoongo, Chairman of the National Commission of Protection of Child Rights (NCPCR) may appeal the judgment in Supreme Court, till the time personal laws governing religions are there, no progress is going to happen in this regard.
पंजाब एवं हरियाणा उच्च न्यायालय ने एक निर्णय में 15 साल की नाबालिग मुस्लिम लड़कियों की शादी को जायज़ करार दिया है।
बाल अधिकार संरक्षित करने के उद्देश्य से उक्त निर्णय का अध्ययन किया जा रहा है,आवश्यक होगा तो निर्णय के विरुद्ध सर्वोच्च न्यायालय में याचिका लगाई जाएगी।#ChildRights pic.twitter.com/89fXIEydlD— प्रियंक कानूनगो Priyank Kanoongo (मोदी का परिवार) (@KanoongoPriyank) June 20, 2022
The decision of the court, in this case, is based on personal law enforcement in the matter of marriage. But the Supreme Court of India, in the Shayara Bano case declaring the instant triple talaq unconstitutional has opined that all personal law will have to pass the test of constitutionality and will be subject to public order, morality, health, and other provision of the fundamental rights. In consonance with this, the Modi government had enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019 to declare the instant triple talaq illegal and criminal offence.
Read More: Muslim Women: The Community beyond the reach of Feminism
So, Courts need to be wary in upholding the personal laws and a preference needs to be given to the law governing based on health, public order, and morality. The marriage of a girl is not an isolated case of a relationship. With marriage, a girl goes through various stages of life like pregnancy, where bearing a baby in adolescence is considered risky for both baby and mother. Further, pregnancy at an early age reduces the chances of personal growth of a woman and increases the fertility rate. The NFHS-5 (National Family Health Survey) data states that the TFR (Total Fertility Rate) in Muslims in 2019-21 was 2.36, which means 100 Muslim women were giving birth to 236 babies. So, considering all the social, economic, and religious angles, the government needs to bring universal law governing all religions equally.
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