RUHUL AMIN SEKH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this writ petition the petitioner seeks issuance of a writ of habeas corpus for the production of the missing girl, Manisha Khatoon (Manisha) who according to the petitioner, had gone missing. Pursuant to orders passed, the missing girl Manisha appeared in Court along with her husband Arman Sekh (Arman). Manisha is 16 years of age and Arman is 17 years of age. Therefore, both Manisha and Arman would under the statutory laws of the land be classified as juveniles. But, Counsel for Arman has taken a plea that Arman and Manisha are both Mohammedans and entitled to contract a marriage on attaining puberty.

(2.) To resolve the said issue Mr. Bikash Ranjan Bhattacharya, Senior Advocate was appointed as amicus curiae and it is submitted by him that Muslim Personal Law (Shariat) Application Act, 1937 makes applicable Muslim Personal Law to Muslims in the matter of marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs. Section 2 of the 1937 Act specifically provides that when the parties are Muslims, the Muslim Personal Law (Shariat) will be applicable.

(3.) According to Mulla a Mohammedan of sound mind who has attained puberty may enter into a contract of marriage and "Puberty" as per the explanation given "is presumed in the absence of evidence, on completion of the age of 15 years". Puberty has not been fixed. No age has been specified for puberty. No biological or physical importance has also been attached but according to the commentaries on Mohammedan Law by Ameer Ali, puberty will mean the age of understanding and such age of understanding cannot be 15 years. In fact, Ameer Ali has further gone on to say that the ingredients necessary for a Muslim to contract a marriage is him/her being a major or sane. The Child Marriage Restraint Act, 1929 was promulgated prior to the 1937 Act. On a reading of the Shariat Act of 1937, one does not find the age at which two Muslims can contract a marriage. Under the 1929 Act a minor is a person of either sex below 18 years of age. By virtue of the Special Marriage Act, 1954 an individual attains majority at 18 years. Mulla in Chapter XVIII has specifically stated that a Mohammedan who is a minor can contract a marriage under the Personal Laws. In view of the Acts of Parliament and the subsequent Central Acts, Shariat Law cannot be considered as a Personal Law and the subsequent enactments will prevail. The Guardians and Wards Act 1890 also recognizes an individual attaining majority at 18 years. The West Bengal Children Act 30 of 1959 was given assent on 3rd January, 1961 and a major thereunder was an individual above 18 years of age. The Prohibition of Child Marriage Act, 2006 is an Act which applies to all the Indian citizens without and beyond India. Section 2(a) defines child to mean a "male" who has not completed 21 years of age and a "female" who has not completed 18 years of age. Section 3(1) has specifically stated that every child marriage solemnized before or after the said Act of 2006 shall be voidable at the option of the contracting party who was a child at the time of marriage. With amendments a statute changes and the Personal Law which prevailed in 1937 by virtue of the 2006 amendment will undergo a change as held in 1978 AIR(SC) 793 Therefore the Personal Law will no longer prevail. Reliance is also placed on 1980 AIR(SC) 707 In the Shah Bano Case reported in 1985 (2) SCC 556 the General Law of the land prevailed over the Personal Law and this is what was stated as will appear from hereunder:-