The recently enacted Prohibition of Child Marriage Act (PCMA), 2006 which prohibits a marriage under the age of 18 has come into conflict with the Indian Muslim Personal laws on the subject, that allows a person to marry after attainment of puberty and recognizes the age of 15 for the same.
The issue surfaced when the wedding of a Muslim girl was stopped by police, in Ghatkopar , Mumbai, after they received a complaint alleging violation of the PCMA Act as she was only 15. Later, the mother of the girl filed a habeus corpus petition seeking custody of the girl who was sent to the Child Welfare Home. Awaaz-e-Niswan, an NGO, has urged the Bombay High Court to uphold the PCMA over the Muslim personal Law and filed an intervention application in the matter. The All India Muslim Personal Law Board (AIMPLB) has also been made a party. It will be interesting to see what stand the AIMPLB takes on the matter.
The outcome of this decision bears much significance in the wider legal context, because of the place the ‘personal laws’ occupy in the Indian constitutional framework. The personal laws are immune to challenge as they are exempted under the definition of ‘law’ under Article 13 of the Constitution. (An earlier post also reflects the dichotomous position the judiciary finds itself in , when dealing with personal laws.) The Courts have, however in the recent past, tried to give effect to such social welfare provisions, terming them ‘secular’ and thereby making them applicable to all sections of the society, for example, the maintenance provision under Section 125 of the Code of Criminal Procedure (CrPC), 1973. Therefore , even though the matter still awaits judicial determination, it seems likely that the PCMA Act shall be given precedence over the Muslim personal law.
The issue surfaced when the wedding of a Muslim girl was stopped by police, in Ghatkopar , Mumbai, after they received a complaint alleging violation of the PCMA Act as she was only 15. Later, the mother of the girl filed a habeus corpus petition seeking custody of the girl who was sent to the Child Welfare Home. Awaaz-e-Niswan, an NGO, has urged the Bombay High Court to uphold the PCMA over the Muslim personal Law and filed an intervention application in the matter. The All India Muslim Personal Law Board (AIMPLB) has also been made a party. It will be interesting to see what stand the AIMPLB takes on the matter.
The outcome of this decision bears much significance in the wider legal context, because of the place the ‘personal laws’ occupy in the Indian constitutional framework. The personal laws are immune to challenge as they are exempted under the definition of ‘law’ under Article 13 of the Constitution. (An earlier post also reflects the dichotomous position the judiciary finds itself in , when dealing with personal laws.) The Courts have, however in the recent past, tried to give effect to such social welfare provisions, terming them ‘secular’ and thereby making them applicable to all sections of the society, for example, the maintenance provision under Section 125 of the Code of Criminal Procedure (CrPC), 1973. Therefore , even though the matter still awaits judicial determination, it seems likely that the PCMA Act shall be given precedence over the Muslim personal law.
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