Relying on the literature on Muslim marriages (Article 195 from the book ‘Principles of Mohammedan Law,’ by Sir Dinshah Fardunji Mulla), the Punjab and Haryana high court has held that a Muslim girl who is less than 18 years old and has attained puberty is at liberty to marry anyone as per Muslim Personal Law. The “puberty” means the time when a girl starts her menstruation cycle (and could happen even when the child is 10-11 years old).

Zakir Nayak uses this jurisprudence to justify Prophet Muhammad (PBUH) when he was 54 years old, consummate his marriage with Ayesha(PBUH). She was Nine years old then. He had married her when she was six.

The Child Marriage Restraint Act, 1929, fixes the age of marriage for girls at 18 years and boys at 21 years. It is popularly known as the Sharda Act, after its sponsor Harbilas Sharda.

The Indian Muslims are supposed to be governed by THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937”. The law is barely 1-2 pages long and I have pasted section 2 which is the crux of the law.

  1. Application of Personal Law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

This rules that Muslims personal laws will be based on Shariat and (in the judgement)has been used to over-rule the Sharda act. This “open ended” law has created conflict with other laws, which has puts judiciary in a quandary – which one should be followed. For e.g., the Shariat says that 3 months after a husband pronounces talaq, he is not entitled for providing maintenance to wife and children where as the CrPC entitles all women for maintenance. In this case (popularly known as Shah-bano case), judiciary put the secular law above Shariat.

What will be side effects of this judgement?

  1. Act as a base for nullifying secular laws contradicting Shariat ineffective for Muslims. Domestic Violence act is an example. Per Zakir Naik Islam permits man to beat his wife. Some court may as well allow husband to beat his wife and overrule the DV act. There may be many more as well.
  2. Encourage child marriages. When Modi Govt. is trying to increase the marriageable age of girls, this judgement would give rights for girls getting married even at the age of 10-11 (after their menstruation cycle starts).
  3. Increase child exploitation. Any one can use “Muta marriages” to have sex with girl child as they can marry a 11 year old girl. Muta marriages are temporary marriages (which can span for even few hours) and are used for prostitution. Earlier, they could not due to the Sharda Act.

In the past Judiciary has taken progressive stance when adjudicating on matters on personal law irrespective of religion. A big chunk of credit for the law banning triple talaq(talaq-e-biddat) goes to Supreme Court. This judgement however, is a regressive one.

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