Prohibition of Child Marriage Act, 2006: Muslim Women Hail Kerala High Court’s Ruling on Minor's Marriage
By Yusra
Husain
27
November, 2022
‘We’ve Been Taunted, Abused, Assaulted’: Muslim
Women On The Horrors Of Marrying Young, Hail Kerala HC's Recent Ruling
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Zubeda
Khatoon was all of 14, studying in Class VII, when her parents got her married
to a man twice her age. Her education was abruptly stopped and she entered her
new household with no “Samajh” whatsoever. Khatoon’s girlish fantasies
of living the life of a young bride were shattered in no time. She was barely
16, when she approached the Pydhonie police station, after her husband
threatened her with a knife. The following year, she sought a divorce,
remarrying soon after—this time with better results.
Zubeda
Khatoon (right) and Haseena Shaikh (left) were married as minors and have been
fighting for the rights of Muslim women since 1995. Pic/Sayyed Sameer Abedi
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Resident of
Jari Mari on Andheri Kurla Road, Rubina Manzoor, 44, was also married at 14
years of age. By the time she turned 18, she was already a mother of two kids.
When we meet her on a weekday morning, Manzoor says she was only able to
understand her husband when she was 30. All the years in between were
emotionally and physically draining. “The back pain and weakness that crept in
during pregnancy as a young girl, still haunts me. Marrying girls at a young
age is unfair. They are not ready, physically or mentally.”
Noorjehan
Safia Niaz
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Manzoor and
Khatoon are among those hailing the Kerala High Court’s recent ruling. On
November 21, while hearing a case of underage marriage of a Muslim couple, the
HC had ruled that if either of the parties in a Muslim marriage is a minor, it
could lead to prosecution under the Protection of Children from Sexual Abuses
(POCSO) Act, 2012. This will be irrespective of the validity of the marriage
under religious laws. Earlier in October, the Karnataka HC had also rejected
the argument that marriage of a minor Muslim girl will not contravene
Prohibition of Child Marriage Act, 2006. It had further said that “POCSO Act is
a special Act and it overrides personal law. Under POCSO, the age for involving
in sexual activities is 18 years”. This is, however, contradictory to the
ruling by the Punjab and Haryana high courts that reiterated this year that a
Muslim girl above 15 years of age is free to marry by choice and that the union
is not void under Prohibition of Child Marriage Act, 2006. The Supreme Court
had issued a notice on October 17 on a petition by the National Commission for
the Protection of Child Rights (NCPCR), and agreed to examine the orders of
both these courts.
Khatoon,
whom we meet at the Bhartiya Muslim Mahila Andolan (BMMA) office in Kherwadi,
is joined by several others who claim to have been married as minors. Khatoon
bore seven children with her second husband following which she got a
hysterectomy done. In 2008, she had to get her uterus removed following medical
problems that accumulated due to her young pregnancies. “But I also got myself
back to school at the age of 55 years, sitting with young kids,” shares
Khatoon, who now works as the Maharashtra convener of BMMA.
Co-founder
of BMMA Noorjehan Safia Niaz says that despite Constitutional safeguards and a
law against it, “child marriage continues in the larger society and
specifically within the Muslim community”.
As per the
2011 census, child marriage is rampant among Muslims at 30.6 per cent. “Even
when we have POCSO and Child Marriage Act established as law of the land, there
seems to be an understanding that Muslims are exempted from it. Why should any
citizen be an exception or be exempted from a law of the country?” she asks.
Haseena
Shaikh, 54, was 16 when she was married. “When I arrived at the tiny house, I
had to serve 11 people, including two mothers-in-law, my father-in-law, five
sisters-in-law, a brother-in-law and his wife and my husband. I didn’t know how
to cook, because of which I got taunted a lot by my mother-in-law. Even today,
years after her death, if I have a nightmare about her, I get startled.” Shaikh
now carries out awareness programmes on the ills of early marriage. “We visited
Nallasopara once and parents there said that if they get their daughters
educated, they would break their trust and elope with some boy. So, instead of
educating them, they think it’s best to marry them off early. Financial
conditions also play a part in such marriages, where parents are not able to
afford the children and getting rid of the daughter is the best way out,” she
says.
In 2015,
BMMA published a national study titled, Seeking Justice Within Family, on
Muslim women’s views on reforms in the Muslim personal law. Of the total 4,710
respondents, 55 per cent were married before the age of 18 years. The study
also found out that more than 75 per cent respondents wanted girls to be above
18 year of age at the time of marriage, while more than 88 per cent wanted boys
to be above 21 years of age. In 2018, the organisation conducted another study
for Maharashtra alone. Of the 505 respondents, 333 were married on or before 18
years of age. A total of 421 women said that a girl should not be married if
not 18 years old and 494 agreed that a boy should enter a marriage only when
mature enough to do so.
For the
past one year, BMMA has been demanding for a specification within the
Prohibition of Child Marriage Act, 2006, which highlights that it is applicable
to all citizens of the country. “It should be applicable to all as default, but
since it is not so in practice, we have made noise in the media, written to the
Law Commission and to the National Women’s and Child’s Rights Commission. The
demand is yet to be met,” Niaz says.
While both
parties in a Muslim marriage are free to make amendments to a Nikahnama
and include clauses to the contract, Niaz believes that a 16-year-old girl will
not have a say on whom to marry or the amount of Mehr (paid to the girl
for her financial independence at the time of marriage) that she should
receive, or even put conditions in her Nikahnama. “All these safeguards
in a Muslim marriage make no sense if a girl is married off as a child. We are
all too aware of the other impacts of child marriage, which a child/woman has
to bear. It has a direct negative impact on her education, health, livelihood
options and overall well-being,” she says, adding, “Muslim women have time and
again shown immense maturity and are aware that a delayed marriage is a boon
for her. Now, it is the state’s turn to listen to her.”
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