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Consent by wali when age of puberty not reached

IN THE HIGH COURT OF DELHI

W.P.(Crl.) 591/2008 and Crl. M.A. 5507/2008

Decided On: 08.07.2008

Appellants: Mohd. Nihal

Vs.
Respondent: State

JUDGMENT

Vikramajit Sen, J.

1. A Muslim husband, Mohd. Nihal, seeks the custody of his Muslim wife, Mst. Afsana, by means of
this habeas corpus petition. Nihal (the Petitioner) asserts that he is 22 years of age and was married to
Mst. Afsana on 31.3.2008 in consonance with Muslim rites and ceremonies at Madarasa Alia, Masjid
Fatehpuri, Delhi. The age of Mst. Afsana is the cause of controversy, both factual and forensic. One
of the witnesses to this marriage is the husband of the sister of Mst. Afsana who, according to Nihal, had
acted as her guardian (Wali). An F.I.R. under Section 363 IPC has been registered on 31.3.2008 at the
instance of Mst. Akhatari Begum (mother of Mst. Afsana) who has appeared in these proceedings and has
opposed the handing over of her daughter to the Petitioner. These are the adversaries before us. Since
complex questions of Muslim Law have arisen, and Mst. Akhatari Begum is not financially sound to
engage an Advocate, we had requested Mr. Najmi Waziri, Advocate to act as amicus curiae.

2. The Prohibition of Child Marriage Act, 2006 (No. 6 of 2007) [for short 'PCM' Act hereinafter] having
been published in the Gazette of India Extraordinary on January 11, 2007 and was Notified in the Gazette
to come into force on November 1st, 2007. It has repealed the Child Marriage (Restraint) Act, 1929.
Section 2 thereof differentiates between a "child" and a "minor". The word "child" is stated to mean a
person, who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of
age; whereas the word "minor" means a person who under the provisions of the Indian Majority Act, 1875
(for short Majority Act) is deemed to have attained his majority. The provision of the PCM Act defines a

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child marriage as one to which either of the contracting party is a child. In other words the purpose of this
Act is to disable a major male from entering into matrimony before reaching the age of 21 years and a
female before attaining the age of eighteen. PCM Act so far as its applicability is concerned makes no
distinction between race or religion. Section 3 thereof declares every child marriage to be voidable at the
option of the contracting party who was a child at the time of marriage. This roughly corresponds to the
position that obtains under the Hindu Marriage Act, 1955 ('HM Act' for short). Section 12 declares a child
marriage to be null and void in circumstances where some enticement or force, deceit or inducement may
have occurred or where a child having been sold in marriage has been made to go through a form of
marriage after which the minor is sold or trafficked or used to immoral purpose. Punishment is prescribed
by this enactment for an adult male contracting a child marriage, and for performing, promoting or
permitting a child marriage. The significance of the PCM Act so far as the present case is concerned is
that it applies throughout India, except in the State of Jammu & Kashmir, and to all Indian citizens,
without and beyond India, regardless of their religious affiliations. Thus, it applies to Muslims also. The
question that requires an immediate answer is whether the PCM Act has the effect of rendering void the
marriage of a Muslim girl who has attained puberty but is below the age of 18.

3. In this regard, it should be noted that Section 2 of the Muslim Personal Law (Shariat) Application
Act, 1937 gives pre-eminence to Muslim Personal Law (Shariat), notwithstanding any customs or
usage to the contrary. This Section reads as under:

2. Application of Personal Law to Muslims.-Notwithstanding any customs or usage to the contrary, in all
questions (save questions relating to agricultural land) regarding intestate succession, special property of
females, including personal property inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (Shariat).

4. Mohammad Yunus v. Syedunnisa MANU/SC/0359/1961 : [1962]1SCR67 has construed this

provision as an injunction directed against each and every Court, thereby enjoining a Judge to apply
Shariat law in all cases concerning Muslims notwithstanding any custom or usage to the contrary. In
contradistinction to custom and usage, the word "law" is conspicuous by its absence in this Section.
Therefore, Section 2 of the Majority Act immediately assumes significance as it declares that it shall not
affect (a) the capacity of any person to act in the matters of marriage, dower, divorce and adoption; and

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(b) the religion or religious rites and usages of any class of citizens. Section 3 of the Majority Act
stipulates that every person shall attain the age of majority on his completing the age of 18 years and not
before it. Section 6 of the Guardians and Wards Act, 1890 (for short G&W Act) also preserves this
pre-eminence of personal laws inasmuch as it directs that in the case of a minor, nothing contained
in the Act shall be construed to take away or derogate from any power to appoint a guardian of his
person or property or both, which is valid by the law to which the minor is subject . Accordingly,
even if some doubt should prevail pertaining to the applicability of Shariat laws in guardianship matters,
it stands clarified by virtue of Section 6 of the G & W Act. When a Court is called upon to determine the
welfare of a minor so far as appointing a guardian of his person or property or both is concerned, this
exercise will have to be determined in consonance with Shariat Law in disputes between persons adhering
to the Muslim faith.

5. It is quite often posited that a Muslim marriage partakes of the nature of a contract. If this is so, it
would become necessary to advert to the Indian Contract Act, 1872 ('Contract Act' for short) which
extends to the whole of India without any exception of religion. Section 10 of Contract Act articulates
that all agreements are contracts if they are made by the free consent of parties competent to contract.
Section 11 thereof specifies that every person is competent to contract who is of the age of majority
according to the laws to which he is subject, and who is of sound mind and is not disqualified from
contracting by any law to which he is subject. Thus an exception requiring the application of
personal laws has been carved out even in the Contract Act. Our attention has been drawn to the
opinion of Dr. Tahir Mahmood in The Muslim Law of India to the effect that "it is only the form of
marriage that in Muslim law is contractual and non-ceremonial; marriage itself as a concept is not merely
a 'contract'." The learned Author emphasizes that the Holy Quran does not treat marriage as an ordinary
contract. The submission has been made before us that if the provisions of the Contract Act are made
applicable to Muslim marriages, it will render nugatory most of the provisions of the Shariat law. We find
no need to delve further into this aspect for the reason that Section 11 of the Contract Act in terms
prescribes the applicability of personal laws on the issue of the competency of a person to enter into
a contract. Furthermore, as we have already pointed out, Section 2 of the Majority Act indicates
that its provisions do not impact on matters of marriage, dower, divorce and adoption. The Division
Bench of the High Court of Judicature at Madras has opined in Arulananda v. Ponnuswami

MANU/TN/0137/1921 : AIR 1922 Mad 1 that "as regards questions of marriage, adoption, etc. the
capacity of minors is left untouched by the Indian Majority Act...". The same conclusion was reached in

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Bhagwati v. District Judge MANU/UP/0309/1932 : AIR1933All480 , where it was held that a

person who has attained majority under Hindu Law would be legally competent to marry even though she
had not reached the age prescribed under the Majority Act, that is, eighteen years. Although the nodus

before the Division Benches in Abdul Azeez v. Pathumma Bi MANU/TN/0276/1952 :

AIR1952Mad754 , Ahmed Suleman v. Bai Fatma MANU/MH/0119/1930 : (1930)32BOMLR1372 ,

and of a Single Judge in Naksetan Bibi v. Habibab Rahman AIR 1948 Cal 66 was whether a suit filed by
a person below the age of eighteen was maintainable, all of them unequivocally posit that the marriage of
a Muslim after reaching puberty but before turning eighteen is valid, because the personal laws to which

she is subject permit it. In this analysis, it is our opinion that a Muslim girl who has reached
puberty or is presumed to have reached puberty on attaining the age of
fifteen, is competent to enter into matrimony even if this partakes of a
contract simplicitor.

6. We must, at once, clarify that under Muslim law the marriage of a girl who has not
attained puberty is nevertheless legitimate provided it has the consent of her
Guardian(Wali). In such cases, however, the wife has the option to repudiate
the marriage when she reaches puberty. At the very threshold of this Judgment we had
recorded the contention of the Petitioner that the brother-in-law of Mst. Afsana was not just a witness to
the marriage but had acted as her Guardian/Wali. Remarkably, there is no evidence or material
whatsoever reflecting the presence or consent of the father of Mst. Afsana to her marriage. Our attention
has been drawn to affidavits submitted by the Petitioner to the Qazi in which his age is stated as 22 years
and that of Mst. Afsana as 19 years. If she was in fact 19 years old at the time of her marriage, there

would not have been any requirement for the consent of her father. It has been established in
these proceedings that the statements in these affidavits are not correct, as
Mst. Afsana is much younger than 19 years. On the contrary, it is nebulous
and uncertain whether she was even 15 years of age or had actually reached
puberty on the date of her so-called marriage. As regards the factum of her
Wali having consented to the marriage, it must be noted that this important
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function cannot be fulfilled by a brother-in-law. It appears to be common to

all schools of Muslim Law that the father, and in his absence the paternal
grandfather, must perform the rights, duties and obligations of a Wali.
During the lifetime of the father no other relative is competent to function as
the Wali. In the absence of the father, the grandfather, the great grandfather,
the brother, the uncle or granduncle and the mother, in this sequence, are
competent to act as the Wali. It would be of advantage to refer to Khatija Begum v. Gulam

Dastagir MANU/AP/0108/1976 : AIR1976AP128 and Abdul Ahad v. Mst. Shah Begum

MANU/JK/0006/1997 where the Division Bench has expounded upon this aspect. In the
absence of the mother, the paternal or maternal grandmother, the maternal
grandfather, the sister, or uterine brother or sister, paternal aunt, maternal
aunt, maternal uncle or aunt, in that order, can perform the duties of a Wali.
The uncontroverted position before us is that Mst. Afsana's father, mother
and elder brother, amongst others, are alive and available but were not
present when the marriage took place. Accordingly, the marriage could have
been legally performed, only if Mst. Afsana had attained puberty or must be
presumed to have attained puberty on having reached her 15th birthday. Ayub

Khan v. Mst. Akhtari MANU/UP/0151/1963 : AIR1963All525 remains authority for the proposition
that the marriage of a Muslim minor (one who has not attained puberty) without the consent of her Wali is
completely void, irrespective of her consent.

7. Medical Tests are indeterminate as to whether Mst. Afsana was 15 years of age at the time of her
marriage. It is trite that upon the party which asserts and alleges a particular event rests the burden
of proving it as a fact. The Petitioner has not tendered any proof in this connection. The Medical
Tests, however, unequivocally indicate that Mst. Afsana is not 19 years of age. It is quite clear that
the Petitioner has submitted a false Affidavit pertaining to the age of Mst. Afsana. Since he is a major and

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Mst. Afsana is not, the responsibility must weigh heavily on his shoulders alone so far as this mis-
declaration is concerned.

8. Mst. Afsana had narrated to us through her mother and lady attendants that the marriage has been
consummated. Medical Opinion, however, is to the contrary as her hymen is intact and she, Therefore,
remains a virgin. One of the reasons why we have mentioned this fact is that it manifests near total lack of
knowledge on the part of Mst. Afsana as to biological/physical functions. On previous dates of hearing
she was unable to state whether she had started menstruating. The Medical Report confirms that she has

now started menstruation. However, it is unclear whether she had attained puberty on
the date of her marriage. Our impression is that she had not. We reiterate that these
events should have been proved by the Petitioner, as it is he who asserts them.

9. In the event, the Petitioner has failed to establish that Mst. Afsana had
obtained puberty at the time of marriage, that is, 31.3.2008 and/or that she
has reached the age of 15 years. Since her father is alive, only he was
competent to act has her Wali for the purposes of her marriage as prima facie
she was a minor at that time. Therefore, the purported marriage is batil or
void ab initio.

10. We had mentioned at the commencement of this Judgment that there were competing claims for the
custody of Mst. Afsana, that is between the Petitioner (as her husband), and her mother. Muslim law
stipulates that the mother has primacy so far as claims of custody over her minor daughter are concerned.

Since our findings for the purposes of this Petition are to the effect that a valid
marriage was not performed between the Petitioner and Mst. Afsana, he has
no right to claim her custody. In this regard we wish to emphasise the views of the Division
Bench in Shama Beg v. Khawaja Mohiuddin Ahmed ILR(1972) 2 Del.73. In the course of the last hearing
we had inquired from Mst. Afsana who she wishes to reside with. Her answer to us was that while she
would like to meet the Petitioner, she desires to reside with her mother. It appears that these habeas
corpus proceedings have accelerated her maturity or precociousness. Although she has attained majority
as per her personal laws by the last date of hearing, thereby rendering ineffectual and irrelevant her
mother's decision as to her custody, we have no option or reason but to fashion our Judgment as per Ayub
decision and reject the claim for conjugal custody.

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11. Our attention has also been drawn to the decision of the Division Bench comprising Manmohan Sarin
and Manju Goel, JJ. in Ravi Kumar v. State which has resulted in the filing of the Petition titled National
Commission for Women v. Government of NCT of Delhi. In Ravi Kumar the conclusion was that the
marriage of two Hindus, where one of the spouses was 15 years, did not render it void or illegal . The
custody of the minor wife was handed over to the husband and proceedings under Section 363 IPC were
quashed. Similar orders were also passed in respect of the other Petitioner. These views have again been
reiterated by another Division Bench of this Court comprising Manmohan Sarin and S.L. Bhayana, JJ. in
Sunil Kumar v. State NCT of Delhi 2007(2) LRC 56 (Del). It requires to be underscored, however, that
the law pertaining to Muslims is dissimilar to that pertaining to Hindus. In this regard we have perused

the decision of the Division Bench in Mst. Shabnam v. Mohd. Shafiq MANU/RH/0229/2004 and

Mustafa v. Smt. Khursida MANU/RH/0566/2005 . The Division Bench of the High Court of
Judicature at Bombay in Manik Dinkar Jagtap v. State of Maharashtra has also handed-over the custody
of minor Hindu wife to her husband following the decision in Makemmal Sailoo v. Superintendent of

Police MANU/AP/0028/2006 : 2006(2)ALD290 , predicated on the opinion that although a marriage

of a minor is an offence under the HM Act, nevertheless the marriage is not invalid.

12. The views of the Division Bench in Md. Idris v. State of Bihar MANU/BH/0132/1980 are of no
assistance to the Petitioner even though in that case the custody of a girl of 15 years was granted to her
husband even in the face of the opposition of her father because her age has not been adequately proved
in these proceedings. We are aware that criminal proceedings are pending against the Petitioner and
Therefore we hasten to record that our findings are prima facie and are restricted to this habeas corpus
petition only.

13. This Petition is accordingly dismissed leaving Mst. Afsana free to decide her
own fate and the future.

14. We record our gratitude to Mr. Najmi Waziri who, as an amicus curiae, has assisted us on the relevant
aspects of Mohammedan law. Mr. Waziri has availed of the assistance of Dr.Saif Mahmood, to whom we
are also thankful. There shall not be any order as to costs.

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