Andhra HC (Pre-Telangana)
Muzaffar Ali Sajjad And Ors. vs State Of Andhra Pradesh on 9 November, 2001
Equivalent citations: 2002(1)ALD112, 2001(2)ALT(CRI)497, 2002CRILJ1068
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
ORDER
1. This petition has been filed by A-1 to A-4 and A-6 to A- 8, who were facing the trial in C.C.No. 101 of 1997 before the II Additional Metropolitan Magistrate, Hyderabad for quashing the proceedings. The original complaint is filed by one Syed Mazher Hussain ie., the 2nd respondent herein, with the following averments.
2. It is stated that A-l and A-2 are the parents of A-3. A-4 Smt. Wajidunnisa Begum is the younger sister of A-2. A-5 Afsari Begum is the real mother of the girl viz., Mahjabeen Fatima, whose marriage was performed illegally with A-3 Mr. Muzamil Ahmed Sajid on 24-2-1997 at 7-00 p.m. In Sameera Function Hall, Lad Bazaar, Hyderabad. It is further stated that A-6 is the Murshad of A-l to A-3, who delivered the sermon of marriage and A-7 participated and acted as the guardian of the girl Mahjabeen Fatima. As a matter of fact, A-7 is not the guardian of the girl Mahjabeen Fatima. A-8 and A-9 are the witnesses to the said marriage. A-5, Afsari Begum is the real mother of the girl Mahjabeen Fatima. A-4 Wajidunnisa Begum is not the real mother of the girl Mahjabeen Fatima. A-4 is issueless and she did not give birth to any female child. It is contended that the girl Mahjabeen Fatima was born on 4-1-1980. Thus the accused performed the marriage of the girl below the age of 18 years, which is an offence punishable under Sections 4, 5 and 6 of the Child Marriage Restraint Act, 1929. With these averments, the complaint was filed. Then the accused appeared before the trial Court. Before commencing the trial, the present petition has been filed by the petitioners herein for quashing the proceedings in C.C.No.lOI of 1997.
3. The learned counsel Mr. K. Raja Reddy appearing on behalf of the accused-petitioners herein submitted at the Bar that the Muslim girl can marry after attaining the age of puberty. The Child Marriage Restraint Act is not applicable to the Muslims.
4. In support of his contention, the learned counsel for the petitioners herein relied upon many rulings. It was mainly contended by the learned counsel for the petitioners herein that the Shariat Act is applicable to the Muslims. Therefore, the Muslims are guided by their Personal Law. The Child Marriage Restraint Act is not applicable to them and therefore the proceedings instituted against the accused-petitioners herein be quashed. In support of his contention, the learned counsel relied upon a ruling reported in C.MOHAMMAD YUNUS v. SYED UNNISSA and Ors., , in which their Lordships were pleased to hold at paras (9) & (10) as under:
"9. Under the Shariat Act, 1937, as framed, in questions relating to charities and charitable institutions and charitable and religious endowments, the custom or usage would prevail. But the Act enacted by the Central Legislature was amended by Madras Act 18 of 1949 and Section 2 as amended provides:
Notwithstanding any custom or usage to the contrary, in all questions, regarding intestate succession, special property of females, including personal property inherited or obtained under contract, or gift or any other provision of Personal law, marriage, dissolution of marriage, including 'tallaq, ila, zihar, lian, khula and Mubarrat, Maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)".
10. Manifestly by this 'Act, the rule of decision in all questions relating to intestate succession and other specified matters including wakfs where the parties to the dispute are Muslims is the Muslim Personal Law. The terms of the Act as amended are explicit. Normally a statute which takes away or impairs vested rights under existing laws is presumed not to have retrospective operation. Where vested rights are affected and the question is not one of procedure there is a presumption that it was not the intention of the Legislature to alter vested rights. But the question is always one of the intention of the Legislature to be gathered from the language used in the statute. In construing an enactment, the Court starts with a presumption against retrospectivity if the enactment seeks to affect vested rights: but such a presumption may be deemed rebutted by the amplitude of the language used by the Legislature. It is expressly enacted in the Shariat Act as amended that in all questions relating to the matters specified 'the rule of decision' in cases where the parties are Muslims shall be the Muslim Personal Law. The injunction is one directed against the Court: it is enjoined to apply the Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary. The intention of the legislature appears to be clear, the Act applies to all suits and proceedings which were pending on the date when the Act came into operation as well as to suits and proceedings filed after that date. It is true that suits and proceedings which have been finally decided would not be affected by the enactment of the Shariat Act, but if a suit or proceeding be pending even in appeal on the date when the Act was brought into operation, the law applicable for decision would be the Muslim Personal Law if the other conditions prescribed by the Act are fulfilled. In our view, the High Court was right in holding that it was bound to apply the provisions of the Shariat Act as amended by Madras Act 18 of 1949 to the suit filed by the plaintiffs."
5. The learned counsel further relied upon a ruling reported in RATILAL PANACHAND GANDHI and Ors. v. STATE OF BOMBAY and Ors., , in which their Lordships were pleased to hold as under:
" In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vest it in any other or secular authority which is guaranteed by Sections Article 26(d) of the Constitution."
"Religion is not necessarily theistic; there are well known religions in India like the Buddhism and Jainism which do not believe in the existence of God or of any intelligent First Cause. A religion has its basis in a system of beliefs and doctrines which are regarded by those profess that religion to be conducive to their spiritual well being, but it is not correct to say that matters of religion are nothing but matters of religious faith and religious belief. A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well.
The article protects acts done in pursuance of religious belief as part of religion. For, religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines."
6. The learned counsel further relied upon a ruling reported in Md. IDRIS v. STATE OF BIHAR and Ors., 1980 Crl.LJ 764. It was laid down by their Lordships that the Muslim girl, who had attained the age of puberty, can marry without the consent of her parents under the Mahommedan Law.
7. The learned counsel further relied upon a ruling reported in PUTHIYA PURAYIL ABDURAHIMAN KARNAVAN and Anr. v. THAYATH KANCHEENTAVIDA AVOOMMA and Ors., AIR 1956 Mad. 244, it was laid down as under:
"If there is one thing dear on the language of Section 2 of the Central Shariat Act and Section 2 of the Madras Amending Act of 1949, it is that neither enactment purported to make the Muslim Personal Law applicable to all matters relating to Muslims. Nor did it in terms totally abrogate custom and usage in respect of matters other than those enumerated in Sections 2 and 3 of the Central Act and Section 2 of the Local Act. No doubt, Section 16, Madras Civil Courts Act was repealed but only so far as it was inconsistent with the provisions of the Central Act. It follows therefore that as regards matters not covered by the Central Act Section 16 continues to be applicable. Neither enactment seeks to enlarge, the powers and property rights of Muslims dying intestate nor did they abolish or purported to abolish the rights and incidents of a Moplah Marumakkathayam tarvvad."
8. Further reliance was placed by the learned counsel for the petitioners herein in a decision reported in SYED MOHIUDDIN AHMED and Anr. v. SOFIA KHATUN W/0 ABDUL AZIZ and Ors., AIR 1940 Cal. 501. It was laid down as under:
"The effect of Section 2, Shariat Act, is to make the Mussalman law expressly applicable to subjects which under the terms of previous Acts and Regulations had to be decided on principles of equity and good conscience. The effect of Section 2 Shariat Act, is not to restore in its complete form the Mussalman law of wakf."
9. Further reliance was placed by the learned counsel for the petitioners herein in a decision reported in ASHRAFALLI CASSAMALLI v. MAHOMEDALLI RAJABALLI and Ors., AIR (34) 1947 Bom. 122. It was held as under:
"Section 2, when it refers to trusts and wakfs not merely refers to trusts and wakfs inter vivos but also includes testamentary trusts and wakfs. Although a Khoja, who in the matter of succession is governed by Hindu law, can, after the passing of the Shariat Act, still will away the whole of his property, yet when it comes to the question of construction of his will to the extent he has created trusts or wakfs by his will, the validity of these trusts and wakfs must be determined by Mahommedan law and not by Hindu law."
10. Further reliance was placed by the learned counsel for the petitioners herein in a decision reported in QASIM HUSAIN BEG v. BIBI KANIZ SAKINA, AIR 1932 All. 649. It was held as under:
"The settlement of dower or its relinquishment comes within the exceptions contained in Section 2.A minor under the Majority Act, but a major under the Mohammedan Law, is capable of entering into a contract of marriage of fixing the amount of dower and of relinquishing the dower as consideration for obtaining Khula."
11. Further reliance was placed by the learned counsel for the petitioners herein in a decision reported in GULAM MUSTAFA v. TAHARA BEGUM and Anr., 1980 Crl.LJ 124. It was held by our High Court on the application for maintenance by Mohammedan wife, 15 years old, she is entitled to maintain application without a next friend.
12. Further reliance was placed by the learned counsel for the petitioners herein in a decision reported in AHMED SULEMAN VOHRA v. Mt. BAI FATMA, AIR 1931 Bom. 76. It was held by their Lordships that under Maho.medan Law, a woman of 16 years and over is entitled to sue for divorce without a guardian by virtue of Section 2 (a) of Majority Act.
Lastly the learned counsel for the petitioners herein relied upon the provisions contained in Act 26 of 1937 (Shariat Act). Section 2 of Shariat Act reads as under:
"2. Application of Personal Law to Muslims :--Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula And mubaraat, maintenance, dower, guardianship, gifts trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
13. I have gone through all the rulings. All the rulings referred to above are not of much use in deciding the crucial point, which is involved in this case. The real question involved in this case as to whether the Child Marriage Restraint Act is applicable to the present set of facts. All the rulings cited are regarding the validity of the marriage to be performed when the Muslim woman is below the age of 18 years. I am not called upon to decide the validity of the marriage. The question posted before me for consideration whether the Child Marriage Restraint Act is applicable to the Muslims. For that purpose I have to see the statement of objects and reasons enacted in the said law, which reads as under:
"Statement of objects and reasons: -Act 2 of 1978: - The Child Marriage Restraint Act, 1929 was enacted with a view to prevent child marriages, namely, a marriage to which either of the contracting parties is under a specified age. Originally, the age limit for a male was 18 years and for a female 14 years. The age limit was subsequently raised in the case of females from 14 to 15 by the Amending Act 41 of 1949. Violation of the provisions of the Act is made punishable.
2. The question of increasing the minimum age of marriage for males and females has been considered in the present context when there is an urgent need to check the growth of population in the country. Such increase of the minimum age of marriage will result in lowering the total fertility rate on account of latter span of married life. It will also result in more responsible parenthood and in better health of the mother and child. A Bill introduced for this purpose in the Lok Sabha on 25th August, 1976, lapsed with dissolution of the Lok Sabha on 18th January, 1977. The matter has been examined in all its aspects again.
3. The Bill seeks to amend the Child Marriage Restraint Act, 1929 to increase the minimum age of marriage from 15 to 16 for females and from 18 to 21 for males and to make consequential amendments in the Hindu Marriage Act, 1955, and the Indian Christian Marriage Act, 1872. It is also being provided that offences under the Child Marriage Restraint Act may be investigated upon by a police officer under the Code of Criminal Procedure as if it were cognizable offence. The Police officer shaft, however, not have the power to arrest without a warrant or an order of a Magistrate."
14. I have to further see as to whom this law is applicable and whether the Muslims have got any exemption from this Act?
15. Section 1(2) of the Child Marriage Restraint Act reads as under: it extends to the whole of India (except the State of Jammu and Kashmir) and it applies also to all citizens of India without and beyond India. It means that Muslims are not exempted from the Child Marriage Restraint Act. If the marriage of a Muslim girl is performed during her minority, the marriage cannot be void but the persons who participated in the marriage cannot be immune from the legal punishment, which is provided under Sections 4, 5 and 6 of the Child Marriage Restraint Act. I am in agreement with the learned counsel for the petitioners herein that the Muslim girl can marry on attaining the age of puberty and her marriage cannot be declared as void because she is below the age of 18 as per the Child Marriage restraint Act. But that is not the issue before me. Hence, the Criminal Petition is dismissed.