The Supreme Court has said that the judgment which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law by the the Punjab and Haryana High Court in the case Javed vs State of Haryana and Others, should not be relied upon as a precedent in any other case.
The Bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha have today passed this interim order while issuing notice in a special leave petition which was filed by the National Commission for the Protection of Child Rights.
the petition was filed challenging the judgment was against the Protection of Children from Sexual Offences Act, which prescribes 18 years as the age for sexual consent.
Solicitor General of India Tushar Mehta, appeared NCPCR, said that using personal law as a defence for crimes under POCSO.
“Girls who are 14,15,16 are getting married is not right. Can there be a defence of personal law? Can you plead custom or personal law for a criminal offence?
The law officer of Union stated that we are on the question if the marriage will be valid at all in the face of criminal law existing and the POCSO Act?
CJI Chandrachud understanding the gravity of matter issued notice and tagged it along with the earlier similar petitions filed by the NCPCR against other High Court judgments which have taken the same view.
Tushar Mehta requested the bench to stay the judgment in the meanwhile.
CJI DY Chandrachud said that if the judgment is stayed, the girl might be restored to her parents against her wishes.
Clarifying the point the CJI said that the parents of the girl wanted her to marry her maternal uncle. What will happen is, the moment we stay she would be restored to her parents, which she does not want”.
After the SG pointed out that many such orders are being passed by the High Courts in several cases, the CJI said we will issue notice to decide upon the question of law and say that the judgement may not be used as precedent.
The bench recorded in the order while issuing notice in the NCPCR plea to settle the question of law stating that Pending further orders, impugned judgment shall not be relied upon as precedent.
Finding that Senior Advocate Rajashekhar Rao, an Amicus in a previous petition filed by the NCPCR on the same issue (NCPCR vs Gulam Deen), the Bench asked for his assistance in the instant matter as well. Rao informed the Bench that he has filed a written submission.
It is important to note that the Kerala High Court in a recent decision held that marriages as per the Muslim personal law are not excluded from POCSO Act and if one of the parties to such a marriage is a minor, the criminal offence under POCSO will be attracted, regardless of the validity of the marriage under the personal law.