By Indrajit Hazra
June 06, 2012
So it’s official. Muslim minors, at least Muslim girls, are temperamentally more mature than their non-Muslim counterparts. On the face of it, the Delhi high court decision to uphold the marriage of a 15-year-old Muslim girl, allowing her to stay with her ‘husband’ and dismissing the charge of kidnapping against the man point to a direction in which our courts are getting more practical about India’s changing reality.
Seen from this angle, the court verdict is reasoned, pragmatic and indeed uncharacteristically liberal: it sides with a now 16-year-old girl who willingly left her parents’ home a year ago to marry a man of her choice and who decided to live with him as his spouse. Take off the stereotypical Muslim sheen off the story and it’s really a liberating tale of a girl being allowed to act according to her own will, to follow her heart, if you will.
But hold that liberating air punch for a moment. The high court’s decision does come as a bulwark against pernicious parental and social pressure — usually in the form of pushing youngsters, never mind minors, to marry against or bypassing their choice — and in support of individual choice in a country that traditionally treats its citizens as children. And yet, it comes in direct conflict with the overarching ‘secular’ law of the land. The Special Marriage Act, 1954 puts down the eligible age for marriage in this country as a minimum of 21 for men and 18 for women — although the National Law Commission has been proposing to set the marriageable age at 18 for both. And under the Prohibition of Child Marriage Act, 2006, no marriage will be allowed between a man, whether above 18 or below, and a woman under the age of 18. These two laws apply to all citizens of India.
But Article 251 of Mulla’s Principles of Mohammedan Law overrides ‘Indian law’, which points out that “every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage”. The explanation to the said Article says that puberty “is presumed, in absence of evidence, on completion of the age of 15 years.” And this is the religious law that the secular Delhi high court used to sanction the marriage of a 15-year-old Indian citizen.
No doubt India’s Muslim community isn’t the only one to have propped up separate religion-specific laws. The Hindu Marriage Act, 1955 — like the Hindu Succession (Amendment) Act, 2005, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956 — was propped up as a ringed law to mark out a religious community. But Tuesday’s high court verdict was fundamentally about defining the age of a minor in India. For all its pointlessness and contribution in undermining one overarching law for all citizens in India, the Hindu Marriage Act defines anyone under the age of 18 as a minor. The Muslim law clearly doesn’t.
This four-year differential between the ‘Muslim’ definition of a minor Indian and other definitions not only emphasises a separate law for a ‘separate’ people — of course, under the sanctimonious garb and protection of maintaining one’s religious identity — but it comes in direct conflict with India’s secular laws. A 15-year-old Muslim girl who has been sexually abused, for instance, cannot therefore take recourse to the Protection of Children From Sexual Offences Bill, 2011, when it becomes law simply because according to Muslim law, she is not a child. She will instead be treated as an adult with the perpetrator charged under the relevant laws pertaining to sexual abuse in general.
The case dealt this week by the Delhi high court was an anomalous one, in the sense it took the side of a 16-year-old woman’s bid to stay married. But the same Muslim law can be invoked when a case goes counter to the wishes and rights of a person who, according to the laws available to all Indian citizens, should be treated as a minor. There are many other ways in which to firm up a community’s religious identity. Erecting separate laws, a Pandora’s box full of communal politics and tension, must not be one of them. Just ask the late senior advocate Mohammad Ahmed Khan, the husband of the late Shah Bano.