Explained: Personal laws in marriage

News: A Bill proposing to increase the age of marriage for women, and ensuring harmony in the age limit across religions, was introduced in Lok Sabha this week and then referred to a Parliamentary Standing Committee.

Both aspects of the proposed amendment to the Prohibition of Child Marriage Act, 2006 have raised a debate on female autonomy and the application of personal laws in marriage.

Must Read: Raising the legal age of marriage for women – Explained, pointwise
What does the amendment propose?

It proposes three things:

– Increase in the minimum age of marriage for a woman. By amending the definition of a “child” in Section 2(a) to mean “a male or a female who has not completed twenty-one years of age”, the Bill makes the minimum age of marriage same for both men and women.

– Increase in the window for a “child” to file a petition to declare a child marriage void. Under Section 3(3) of the Prohibition of child Marriage Act, 2006 both the boy and the girl have the right to opt out of marriage until two years after attaining majority, i.e. up to the age of 20 years for a girl and 23 years for the boy.

The Bill proposes to extend this window for both the woman and the man to five years after attaining majority. Since the age of majority is 18 for both, this would mean that either the man or the woman can file a petition to declare the child marriage void before they turn 23, or until two years after reaching the new minimum age of marriage.

– Introduction of a “notwithstanding” clause. This essentially calls for equal application of the Prohibition of Child Marriage Act across religions, notwithstanding any customs.

What are the issues/concerns with the amendment?

Since the age of majority is 18, increasing the age of marriage is viewed as a paternalistic approach by the state in personal matters of an individual.

Additionally, the application of the child marriage law across faiths sets the stage for a debate on the limits of personal law.

One of the views is that the bill may also be violative of Article 25 of the Constitution, which guarantees the freedom of conscience and free profession, practice and propagation of religion.

Another criticism is that increasing the minimum age of marriage will further push many marriages to illegality and marginalise vulnerable sections. Since the existing Act does not make child marriage automatically illegal, the increase in minimum age might not really benefit women.

Also, since Muslim law recognises “attaining puberty”, which is legally assumed at 15 years, as the minimum age of marriage, it raises questions as to whether the child marriage law can apply to Muslims.

Can secular law override personal law?

Courts have offered different interpretations:

Views of the Supreme Court

In Shayara Bano v Union of India (2017), the Supreme Court declared the practice of instant triple talaq as unconstitutional although it is provided for under Muslim law.

In a 1960 case, the Supreme Court held that the Transfer of Property Act, 1882 would apply over Muslim law on transfer of property.

Views of the High Court:

The Karnataka High Court, in the case of Seema Begaum D/O Khasimsab vs State Of Karnataka (2013)no Indian citizen on the ground of his belonging to a particular religion, can claim immunity from the application of the P.C.M.

In February 2021, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man), holding that theirs was a legal marriage under personal law. The HC examined provisions of the PCM Act but held that since the special law does not override personal laws, Muslim law will prevail.

Source: This post is based on the article “Explained: Personal laws in marriage” published in The Indian Express on 23rd Dec 2021.

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