Andhra Pradesh High Court - Amravati
Saniya Taj Saniya Taz vs The State Of Andhra Pradesh on 16 February, 2024
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
W.P.No.2237 OF 2024
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India:
"to issue a Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring highhanded action of the Respondent Nos.2 to 6 in not considering the petitioner representation dated 15.01.2024 to provide Police Protection to us and enable the petitioner to celebrate our Nikha peacefully at the house of the petitioner would be, according to Muslim Customs and Rites prevailing in Muslim Community and render justice to the Petitioner as illegal, irregular, unjust and violation of the Articles 14, 19, 21 and 300-A of the Constitution of India and consequently direct the Respondent No.6 to conduct enquiry and provide police protection to the Petitioner and the Petitioner would be family members to celebrate our Nikha peacefully at the house of the Petitioner would be, according to Muslim Customs and Rites prevailing in Muslim Community in the interest of justice and pass order or orders.".
2. The contention of the petitioner briefly as follows:
3. The petitioner is a resident of Bangalore South, Bangalore, Karnataka and fell in love with Mr. I. Akram S/o. Syed Ibraheem, a resident of K.P. Mitta Village, Chittoor District. The 7th respondent is the mother of the petitioner. The 7th respondent is working in Kuwait. She has two female children and one male child. The petitioner is the eldest one. The father of 2 BSB,J W.P.No.2237 of 2024 the petitioner abandoned her mother and settled in Kerala State. The petitioner decided to celebrate her marriage with I. Akram according to muslim customs and rites on 19.12.2023, since both the parties belonged to the muslim community and she came to him at his parent‟s house in K.P. Mitta Village. As per the muslim law, a girl on attaining puberty has capacity to enter into marriage. The petitioner attained puberty as she completed 17 years of age being born on 13.09.2006. I. Akram is aged of 24 years. Majority is presumed among Hanafis and Shias on completion of 15 years of age, in case of both male and female as per the muslim law. On 09.01.2024, when the petitioner intended to marry I. Akram by informing the same to her mother and the meternal uncles at Bangalore, the mother and the meternal uncle of the petitioner came to K.P. Mitta Village along with 25 members agreeing to celebrate the marriage (Nikha). But, started abusing and beating the petitioner by threatening her with dire consequences unless she fallows them and attempted to take the petitioner back to Bangalore by force. However, she was rescued by the elders of their community. Then the mother of the petitioner challenged that she would never allow the petitioner to marry I. Akram. Since then, the mother and meternal uncle of the petitioner have been threatening her. So, the petitioner is apprehending danger to her life in their hands. Then, the petitioner submitted a representation to the respondents No.2 to 6 to provide police protection to enable the petitioner to celebrate her 3 BSB,J W.P.No.2237 of 2024 marriage. But, till date, there is no response from them. Hence, this petition is filed.
4. The learned counsel for the petitioner submitted that as per the muslim law, since the petitioner crossed the age of puberty and entitled to marry, she must be given protection by the police when she performs her marriage.
5. On the other hand, the learned Assistant Government Pleader for Home representing the respondent Nos.1 to 6 opposed the petition and submitted that the petitioner has not crossed the age of 18 years and she is still minor and not entitled to enter into marriage.
6. Though the muslim women, as per the personal law of the muslims is entitled to marry on attaining puberty, under Section 1 (2) of the Prohibition of Child Marriage Act, 2006, (hereafter called as "the Act, 2006") which is applicable to all citizens of India except Renonkants of the Union Territory of Pondicherry, a person who is a „child‟ within the definition of Section 2 (a) of the Act, 2006 i.e., female who has not completed the age of 18 years, if she marries, such marriage being „child marriage‟ within the definition of Section 2 (b) of the Act, 2006 is voidable at the option of the contracting party as per Section 3 (1) therein. However, such a „child marriage‟ has penal consequences provided under the Act 2006 itself viz., Section 9 which provides punishment for a male adult marrying a child with rigorous imprisonment which may extend to two 4 BSB,J W.P.No.2237 of 2024 years or with fine which may extend to one lakh rupees or with both, Section 10 which punishes the persons whoever performs, conducts, directs or abets any child marriage with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage and further Section 11 which provides punishment for promoting or permitting solemnization of child marriages.
7. Recently, the High Court of Panjab and Haryana at Chandigarh vide its order dated 30.09.2022 in CRWP-7426-2022 (O&M) decided that the case where muslim minor girl was 16 years of age and the muslim man was of 26 years of age who entered into marriage and the husband sought custody of his wife claiming that his wife wishes to reside with him and their marriage is valid as per the principles of Mohammedan Law. After considering the principles of Mohammedan Law and the judgments of the coordinate Benches of the same High Court in Mohd. Samim vs. State of Haryana and Others1 and in Kammu vs.State of Haryana and Others2, the petition was allowed.
8. The National Commission for Protection of Child Rites (NCPCR) went in appeal to the Supreme Court challenging the said order vide order dated 13.01.2023 vide Special Leave Petition (Criminal) Diary No.35376/2022. The Supreme Court was inclined to entertain the said SLP and ordered notice. 1 2019 (1) R.C. R.(Criminal) 685 2 2010 (4) R.C.R. (Civil) 716 5 BSB,J W.P.No.2237 of 2024 Pending further orders, the Supreme Court directed that the impugned judgment of the High Court of Panjab and Haryana dated 30.09.2022 shall not be relied on as a precedent in any other case. The matter stands posted to 21.03.2024 as can be seen from the case status available on the website of the Supreme Court of India. The petitioner also raises the same ground as relied by the High Court of Panjab and Haryana referred supra.
9. The contention of the petitioner cannot be examined only from the point of legality of the marriage under the personal law, but its relevance under the provisions of the other enactments shall also be considered. Under the Act, 2006, though the child marriage is not expressly declared invalid or illegal nor is it expressly prohibited, the penal provisions are incorporated irrespective of the validity of the child marriage which is only voidable.
10. Since the matter is already before the Supreme Court in the above said case for final adjudication, any authority bound by law shall act in the matter of child marriage, irrespective of the religion, strictly in accordance with law, which means not just a personal law applicable to the child, but the other provisions as well which are already discussed above.
11. The learned counsel for the petitioner submitted that after filing of the petition, the petitioner fixed the date of performance of the marriage on 18.02.2024. Yesterday i.e., 15.02.2024, on the direction of this Court, 6 BSB,J W.P.No.2237 of 2024 the petitioner‟s counsel sent a notice to the 7th respondent through whatsapp and proof is also filed today.
12. The learned Assistant Government Pleader for Home represented that, after receiving the request of the petitioner, though she was called for enquiry, she had not come to the police station stating some reasons to escape the enquiry and that the 6th respondent/SHO telephonically approached the mother of the petitioner i.e., 7th respondent, who stated that she had given compliant in the police station at Bangalore about missing of her daughter and further stated that she would settle the issue in Karnataka itself.
13. Since the representation given by the petitioner without mentioning time and place is still pending with the police and it was also represented by the learned Assistant Government Pleader for Home that the petitioner has not approached the police for it, the respondent-police shall dispose of the representation strictly as per law discussed above. As such, this Writ Petition is disposed of. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J 16th February, 2024 PGT 7 BSB,J W.P.No.2237 of 2024 THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI 8 BSB,J W.P.No.2237 of 2024 W.P.No.2237 OF 2024 16th February, 2024 PGT