AHMEDABAD: The Gujarat high court has held that the special law - Prohibition of Child Marriage Act (PCMA) – will prevail over the Muslim Personal Law in cases where Muslims marry off their minor daughters. Promoters of such marriages will face legal proceedings. The question was whether action can be taken against people who promote or permit marriage of a Muslim girl less than 18 years because the Sharia laws permit a girl to take decision about her marriage when she attains the age of puberty, at around 15. Justice J B Pardiwala on Wednesday ruled that all those who promote or permit such child marriages are liable to be prosecuted under the central law that bans such early nuptials.

The case in question before the high court was from Gaekwad Haveli police station , where abduction and rape charges were leveled against Yunush Shaikh (28) who had eloped with a 16-year old girl living in his neighbourhood. Before elopement, they had also got married in December last year. The girl’s father lodged an FIR and sections 363, 366, 376 of the IPC, provisions of Prevention of Children from Sexual Offences Act (POCSO) were invoked apart from the PCMA.

Looking at the provisions of Personal Laws and IPC, Justice Pardiwala dropped charges of abduction, luring and rape. However, the HC said that even in cases of child marriage involving Muslims, the provisions of PCMA cannot be overlooked and action must be taken against those responsible, said Shaikhs’ counsel Soeb Bhoheria. In reaching this conclusion, the judge spoke of numerous citations from other high courts, the Supreme Court as well as from laws of other countries. He also extensively cited the Islamic texts besides relying on an article written by former SC judge Markandey Katju.

The HC observed about rigidity on part of Islamic authorities in interpretation of ancient laws, “Those who have not allowed to change the Muslim Personal Law have done a great disservice to the community. At the same time, it is also true that as the social condition in the nation and throughout the world continues to change. The reality of life is that even without a code on personal law of Muslim in so far as the marriage is concerned, the child marriage is going into oblivion. Education, changing pattern of the family structure, the structure of the family in the context of reality of the world, and economic necessities are on their own precipitating the situation. The members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years.”

