MOHD NIHAL Vs. STATE

JUDGEMENT

(1.) A Muslim husband, Mohd. Nihal, seeks the custody of his Muslim wife, mst. Afsana, by means of this habeas corpus petition. Nihal (the Petitioner)asserts that he is 22 years of age and was married to Mst. Afsana on 31. 3. 2008 in consonance with Muslim rites and ceremonies at Madarasa Alia, Masjid fatehpuri, Delhi. The age of Mst. Afsana is the cause of controversy, both factual and forensic. One of the witnesses to this marriage is the husband of the sister of Mst. Afsana who, according to Nihal, had acted as her guardian (Wali ). An F. I. R. under Section 363 IPC has been registered on 31. 3. 2008 at the instance of Mst. Akhatari Begum (mother of Mst. Afsana) who has appeared in these proceedings and has opposed the handing over of her daughter to the petitioner. These are the adversaries before us. Since complex questions of muslim Law have arisen, and Mst. Akhatari Begum is not financially sound to engage an Advocate, we had requested Mr. Najmi Waziri, Advocate to act as amicus curiae.

(2.) THE Prohibition of Child Marriage Act, 2006 (No. 6 of 2007) [for short "pcm" Act hereinafter] having been published in the Gazette of India extraordinary on January 11, 2007 and was Notified in the Gazette to come into force on November 1st, 2007. It has repealed the Child Marriage (Restraint) Act, 1929. Section 2 thereof differentiates between a "child" and a "minor". The word "child" is stated to mean a person, who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age; whereas the word "minor" means a person who under the provisions of the Indian Majority Act, 1875 (for short Majority Act) is deemed to have attained his majority. The provision of the PCM Act defines a child marriage as one to which either of the contracting party is a child. In other words the purpose of this Act is to disable a major male from entering into matrimony before reaching the age of 21 years and a female before attaining the age of eighteen. PCM Act so far as its applicability is concerned makes no distinction between race or religion. Section 3 thereof declares every child marriage to be voidable at the option of the contracting party who was a child at the time of marriage. This roughly corresponds to the position that obtains under the Hindu Marriage Act, 1955 ("hm act" for short ). Section 12 declares a child marriage to be null and void in circumstances where some enticement or force, deceit or inducement may have occurred or where a child having been sold in marriage has been made to go through a form of marriage after which the minor is sold or trafficked or used to immoral purpose. Punishment is prescribed by this enactment for an adult male contracting a child marriage, and for performing, promoting or permitting a child marriage. The significance of the PCM Act so far as the present case is concerned is that it applies throughout India, except in the State of Jammu and kashmir, and to all Indian citizens, without and beyond India, regardless of their religious affiliations. Thus, it applies to Muslims also. The question that requires an immediate answer is whether the PCM Act has the effect of rendering void the marriage of a Muslim girl who has attained puberty but is below the age of 18.

(3.) IN this regard, it should be noted that Section 2 of the Muslim personal Law (Shariat) Application Act, 1937 gives pre-eminence to Muslim personal Law (Shariat), notwithstanding any customs or usage to the contrary. This Section reads as under: