"Every Indian Is A Citizen First": Kerala HC Holds That Prohibition Of Child Marriage Act Supersedes Muslim Personal Law

The Kerala High Court observed that the Prohibition of Child Marriage Act, 2006 supersedes the Muslim Personal Law.

The Court remarked that every Indian is a citizen of the country first and then only he/she becomes a member of any religion.

The Court was dealing with a criminal miscellaneous case filed by the accused persons against the proceedings pending against them under the 2006 Act.

A Single Bench of Justice P.V. Kunhikrishnan enunciated, “It is true that the Principles of Mahomedan Law by Mulla says that, every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. But, as I observed earlier, every Indian is a citizen of the country first and thereafter only he becomes a member of the religion. When the Act 2006 prohibits child marriage, it supersedes the Muslim personal law, and every citizen of this country is subject to the law of the land, which is Act 2006, irrespective of his or her religion.”

The Bench said that the provisions of 2006 Act, which was subsequently enacted, is applicable to Muslims also as far as child marriage is concerned and this is because of the importance of 2006 Act and also because it is a special Act enacted with a great object.

"Kerala is known for its 100% literacy. But, it is sad to hear that, even after the enactment of the Prohibition of Child Marriage Act decades ago, there are allegations of Child Marriage in Kerala. The saddest thing is that the petitioners herein are trying to justify the alleged child marriage stating that as per Mohammedan Law, a Muslim girl enjoys a religious right to marry after attaining puberty irrespective of age, even though the Prohibition of Child Marriage Act apply to all the citizens of India without and beyond India", the Bench said.

Advocates R.O. Muhamed Shemeem and Naseeha Beegum P.S. appeared for the petitioners while Sr. PP Renjith T.R. appeared for the respondents. Advocate K.M. Firoz was appointed as Amicus Curiae.

Facts of the Case -

As per the prosecution case, the Integrated Child Development Scheme Officer (ICDS Officer) submitted a complaint to the Circle Inspector of Police, informing that a child marriage happened within the jurisdiction of ICDS Alathur Additional. Based on this, a crime was registered alleging offences punishable under Sections 10 and 11 of 2006 Act. As per the prosecution, in 2012, the first accused conducted the marriage of his minor daughter with the second accused as per the religious tenets and rites in Islam.

The accused nos. 3 and 4 were the President and Secretary of Hidayathul Islam Juma Masjid Mahal Committee. The fifth accused was the witness who signed the record regarding the conduct of the marriage. Therefore, it was alleged that all the accused persons (petitioners) committed the offences. The petitioners submitted that even if the entire allegations are accepted, no offence under the said provisions is attracted and hence, the continuation of proceedings was an abuse of process of court.

The High Court in view of the above facts noted, “A person should be a citizen of India first, and thereafter only his religion comes. Religion is secondary and citizenship should come first. Therefore, I am of the considered opinion that, irrespective of religion, whether a person is Hindu, Muslim, Christian, Parsi etc., Act 2006 is applicable to all. Section 3 of the Majority Act, 1875 says that, every person domiciled in India shall attain the age of majority on his completing the age of 18 years and not before. But, Section 2(a) of the Majority Act, 1875 says that, nothing herein contained shall affect the capacity of any persons to act in the following matters(namely), marriage, dower, divorce and adoption.”

The Court added that 2006 Act will override the provisions of the Majority Act as far as child marriage is concerned. It further said that when a citizen, that also a person belonging to Muslim community, submits a complaint stating that there is a child marriage in his religion, the Court cannot reject the same saying that there is a delay in submitting the complaint.

“The prohibition of child marriage is important in the modern society. Child marriage denies children their basic human rights, including the right to education, health and protection from exploitation. Early marriage and pregnancy can lead to health problems such as infant mortality, maternal mortality and sexually transmitted infections. Child marriage often forces girls to drop out the school, limiting their education and future opportunities. Child brides are more vulnerable to domestic violence and abuse. Child marriage can perpetuate poverty and limit economic opportunities for individuals and communities”, it also remarked.

The Court observed that the child marriage can lead to emotional and psychological trauma, including depression and anxiety to the children and that the child marriage can lead to social isolation and disconnection from the family and community. Moreover, it noted that the child marriage is a violation of international human rights law and conventions as well.

“Let the children study according to their wishes. Let them travel, let them enjoy life and when they attained maturity, let them decide about their marriage. In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, ofcourse with the blessings of their parents. When they attain majority and decided that a partner s necessary in their life, let it happen at the appropriate stage so that child marriage can be eradicated from the society. As I mentioned earlier, it is the duty of every citizen to see that there is no child marriage”, it emphasised.

The Court enunciated that the Judicial First Class Magistrate of the State also should be alert and should take suo motu cognizance, if any reliable report or information is received about child marriage and said that let the print and visual media also take initiative to see that there is no child marriage in the State in future at least.

“I am sure that, all of them will do their job to see that our girls are protected from child marriage. … I am of the considered opinion that, no case is made out by the petitioners to quash the proceedings. But I make it clear that the petitioners can adduce evidence to prove their case before the trial court at the appropriate stage”, it concluded.

Accordingly, the High Court dismissed the criminal miscellaneous case.

Cause Title- Moidutty Musliyar & Ors. v. Sub Inspector Vadakkencherry Police Station & Ors. (Neutral Citation: 2024:KER:56284)

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