Flagging a “recurring conflict” between personal laws and laws such as the Protection of Children from Sexual Offences (POCSO) Act, the Delhi High Court urged for “legislative clarity” on a Uniform Civil Code. The HC observing that the legislature must decide “whether to continue criminalising entire communities or to promote peace and harmony through legal certainty”.
Justice Arun Monga made the observation on September 23 while granting bail to a 24-year-old Muslim man who was booked for allegedly marrying a minor. The judge stated, “…the recurring conflict is clear i.e. under Islamic law, a minor girl attaining puberty may lawfully marry, but under Indian criminal law, such a marriage renders the husband an offender under the BNS (Bharatiya Nyaya Sanhita) and/or POCSO or both.”
He added, “This raises a stark dilemma viz. should society be criminalised for adhering to long-standing personal laws? Is it not the time to move towards a Uniform Civil Code (UCC), ensuring a single framework where personal or customary law does not override national legislation?”
‘Lasting solution must come from Parliament’
The order recorded, “…opponents of UCC caution that uniformity risks eroding religious freedom guaranteed to every citizen as a fundamental right in the Constitution of India. However, such freedom cannot extend to practices that expose individuals to criminal liability. A pragmatic middle path could be to standardise core protections, such as prohibiting child marriages across board with penal consequences as they directly conflict with both BNS and POCSO.”
Personal matters that are less contentious may be allowed to evolve gradually within the respective communities, the order said, adding, “The decision is best left to the wisdom of the lawmakers of the country. But, lasting solution must soon come from the legislature/Parliament.”
The accused in the case was booked for offences under the Indian Penal Code (IPC) for the kidnapping and rape of a minor, and offences under the POCSO Act, in a First Information Report (FIR) lodged by the stepfather of the prosecutrix. The stepfather had allegedly sexually assaulted and raped the prosecutrix, leading to the birth of a child, which was given up for adoption when the prosecutrix was 14 years old. The stepfather is facing trial for rape and offences under the POCSO Act, and is in judicial custody.
‘Stepfather had own axe to grind’
The prosecutrix emphasised before the high court that she married of her own free will and sought bail for her husband, wishing to live with him, while claiming that she is now 20 years old. The prosecution had, however, asserted that she is a minor of 15-16 years. The couple married under Islamic law and have a child.
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Granting bail to the man, taking into consideration the peculiar circumstances of the case, the court noted that the couple’s relationship was consensual and that “it seems that he (stepfather) had his own axe to grind for lodging the FIR twisting/distorting facts”.
The court also took into account that the prosecutrix claimed her age to be 20, which it said “prima facie…appears to be believable”.
While adjudicating the matter, the court consulted several experts in Islamic law, including Professor Faizan Mustafa, Vice-Chancellor, Chanakya National Law University; Dr Mohammed Khalid Khan, Department of Islamic Studies, Jamia Milia Islamia, New Delhi; and Nehal Ahmed, Assistant Professor of Law, Woxsen University, Hyderabad.
The three experts broadly concurred during the proceedings that the Quran does not prescribe any specific age for marriage among Muslims and that the only requirements are that the parties must have attained puberty, must understand the consequences of marriage, the contracting parties must give free consent, and that minors who have not attained puberty may be validly contracted in marriage by their respective guardian.
