Muslim girl can marry without parents consent on attaining puberty, has right to live with husband: Delhi HC

The Delhi High Court has observed that under Mohammedan law, a minor girl who has reached puberty can marry without the permission of her parents and has the right to live with her spouse even if she is under the age of 18.

Justice Jasmeet Singh made the remark while giving protection to a Muslim couple who got married in March according to Muslim rites and rituals. The couple made the request to ensure that no one separates them.

The girl's parents were opposed to the marriage and filed a FIR against the husband under Section 363 of the IPC. Sec. 376 and Sec. 6 POCSO were later added.

According to the girl, she was regularly beaten by her parents and had eloped and married out of her own free will.

According to the State's status report, the girl was born on August 2, 2006, making her just 15 years and 5 months old on the date of the marriage.

The girl was recovered in April this year from the custody of the husband and her medical examination was conducted at Deen Dayal Upadhyay Hospital (DDU), Delhi.

According to the status report, the couple had sexual relations and were expecting a kid together.

"It is thus clear that as per Mohammedan Law girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise minor girl", the court observed while granting protection to the couple.

The Court determined that the POCSO Act would not apply to the current case since it is not a case of sexual exploitation, but rather one in which the couple fell in love, married according to Muslim laws, and then had physical relationships.

"The object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth are protected against exploitation. It is not customary law specific but the aim is to protect the children below the children below the age of 18 years from sexual abuse", the court said.

The court further said that the petitioners being lawfully wedded to each other cannot be denied the company of each other as it is the “essence of the marriage” and if they are separated, it will only cause more trauma to the girl and her unborn child. “It must also be kept in mind that in the present case, the environment in the house of petitioner no.1 (girl) is hostile towards her and her husband,” the order said.

Allowing the petition and asking the police to safeguard the couple's safety, the court noted that the girl will be free to join her husband's workplace. "The petitioners have the right to be together, and respondent nos. 1 to 3 (the Delhi government and police) are directed to provide the petitioners' personal safety and protection," ruled Justice Singh.