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Synopsis

In a significant development, the Calcutta High Court has dismissed a Public Interest Litigation (PIL) that sought to compel state authorities to establish a policy prohibiting the marriage of Muslim girls until they complete their Class XII education.

The decision, delivered by a bench comprising Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharyya, stated that the representation submitted to the Minister of School Education could not be considered. They emphasised that the issue fell under the domain of policy, hence no mandamus could be granted as requested by the petitioner. The bench underscored that while the matter was of significant societal importance, it ultimately required legislative action rather than judicial intervention.

The PIL was filed by Nazia Elahi Khan, who passionately argued that prevailing societal norms often force young Muslim girls to prioritise marriage over education, perpetuating cycles of marginalisation and denying them opportunities for personal and professional development.

Khan's plea shed light on the urgent need to address the issue of early marriage within the Muslim community, where girls are often married off as soon as they reach puberty or adolescence, typically around the age of twelve. She highlighted the detrimental impact of such practices on the educational and socio-economic prospects of young girls, emphasising the urgency of intervention to safeguard their rights and well-being.

Khan expressed dismay over the perceived inaction of state authorities regarding her representation, submitted on February 12, advocating for a mandate requiring Muslim girls to finish at least Class XII before marrying.

However, in its ruling, the Calcutta High Court dismissed the PIL, emphasising that the issue raised by Khan's representation fell within the realm of policy-making, which was beyond the court's jurisdiction to mandate.

In a related context, it's noteworthy that the Supreme Court had in January of the preceding year, issued a significant directive restraining all courts in the country from considering as precedent a judgment by the Punjab and Haryana High Court. The Punjab and Haryana High Court in October 2022, reiterated that Muslim females aged 15 years and above have the right to marry a person of their choice with their own willingness and consent. The observation was made during the hearing of a habeas corpus petition filed by 26-year-old Javed against the detention of his 16-year-old wife. However, this ruling contradicted the common civil and criminal laws in India, which prohibit the marriage of girls under 18 and deem sexual intercourse with minors a penal offence.

In that case, admitting an appeal by the National Commission for Protection for Child Rights (NCPCR), the Supreme Court agreed to examine the legal argument presented by the child rights body. The NCPCR contended that personal laws or religious rights cannot supersede the mandate of criminal laws aimed at protecting the rights of the girl child. Solicitor General Tushar Mehta, representing the NCPCR, emphasised that any judgment approving a minor's marriage not only violated the Prohibition of Child Marriage Act, 2006, but also the Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code (IPC).

SG Mehta had also pointed out that several high courts had followed the reasoning that a minor girl could marry if permitted by personal law. He expressed concern over the legitimisation of criminal actions through such orders, urging the bench to issue an interim order to prevent high courts or trial courts from passing similar judgments.