The Telegraph
Thursday , October 12 , 2017

Secular law to prevail

New Delhi, Oct. 11 (PTI): The Supreme Court today touched upon the marriage laws for Hindus and Muslims to highlight inconsistencies in various laws, saying some of the provisions make a "mockery" of the Prohibition of Child Marriage Act (PCMA).

The court said the PCMA was a secular act and, as far as children are concerned, its provisions would prevail over the separate laws governing Hindu and Muslim marriages.

Under the Dissolution of Muslim Marriages Act of 1939, if a minor girl aged below 15 is married under the Muslim law, she can obtain a decree of dissolution of the marriage before she turns 18, provided the marriage has not been consummated.

"This provision deals with girls below the age of 15 years who got married. Such a girl is required to repudiate her marriage before she attains majority and she can only repudiate the marriage if the marriage has not been consummated. This virtually makes mockery of the PCMA," a bench of Justices M.B. Lokur and Deepak Gupta said.

The bench said that if the husband had forcible sex with such a girl, the marriage would have been consummated and the girl child would have been deprived of her right to get the marriage annulled.

While dealing with provisions of the Hindu Marriage Act of 1955, the bench said a Hindu girl can file a petition for divorce on the ground that her marriage, whether consummated or not, was solemnised before she turned 15 years and she had refused to accept her marriage after attaining the age of 15 years but before turning 18.

"This is also not in consonance with the provisions of the PCMA, according to which the marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce. A void marriage is no marriage," the bench said.

"...Under Section 13(2)(iv) of the Hindu Marriage Act, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority. The question that remains unanswered is who will represent or help this child who has been forced to marry, to approach the courts," the bench said.

The top court said it was obvious that while making amendments to various laws, some laws were "forgotten" and consequential amendments were not made.

After the PCMA was enacted, both the Hindu Marriage Act and the Dissolution of Muslim Marriages and Divorce Act should also have been suitably amended, but this has not been done, the bench said.

"In my opinion, the PCMA is a secular act applicable to all. It being a special act dealing with children, the provisions of this act will prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act, in so far as children are concerned," Justice Gupta said.

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