Punjab and Haryana High Court: Life and Liberty of Consenting Adults Needs To Be Protected Despite Illegality Under Islamic Law

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Excerpt

This case Jakar v. State of Haryana and Ors. concerned the issue of protection of life and liberty of the Petitioners from their relatives, who are not in favour of their marriage.  

Brief Facts of the Case

It was a criminal writ petition filed under Article 226 of the Constitution of India, for issuance of directions to Respondent No. 2 and, to protect the life and liberty of Petitioners against Respondents No.4 to 7, who were relatives of Petitioners. 

The Petitioners, who were both Muslims, got married as per Muslim rituals and rites but against the wishes of Respondent No.4 to 7. Petitioner No.1 was stated to be of age 23 and Petitioner No.2 was of age 18, both are major and eligible to marry. 

Appellant’s Arguments

It had been submitted that the Petitioners apprehended danger from Respondents No.4 to 7, sent representations dated 23.11.2020 to the Superintendent of Police, Nuh, Haryana, seeking adequate security, but no action had been taken. 

The Counsel for Petitioner relied upon the judgment of the Court in the cases of  Kammu vs. State of Haryana & Ors. (2010), Yunus Khan vs. State of Haryana & Ors. (2014), and Mohd. Samim vs. State of Haryana & Ors. (2019) to contend that under Muslim law puberty and majority are the same and there exists a presumption that a person attains majority at the age of 15 years. 

Once a Muslim boy or a Muslim girl attains puberty, he/she is at liberty to marry anyone he or she likes, and the guardian has no right to interfere. 

Respondent’s Arguments

The Counsel on behalf of Respondent No.4, father of Petitioner No.2, pointed out that Petitioner No.2 was years of age. 

Counsel on behalf of the first wife of Petitioner No.1, contended that under Muslim law the consent of the first wife is necessary for performing a second marriage. 

Observation by the Court

The Court observed that both the Petitioners are of marriageable age as envisaged by the Muslim law. This observation had been made by the Court relying on judgments cited by the Petitioner and the fact that the girl in the present case is more than 18 years of age. 

In the case of Yunus Khan, it has been observed that the marriage of a Muslim girl is governed by the personal law of Muslims. Article 195, from the book Principles of Mohammedan Law by Mulla, provides that “every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage”. 

Both the Petitioner No.1 and 2 have attained puberty, and thus are competent to marry as per Muslim law. However, in the present proceedings, the Court is not dealing with the issue of the validity of the marriage and focuses only on the protection of Petitioners. 

Just because the Petitioners have married against the will of their family members, they cannot possibly be deprived of the fundamental right of life and liberty, envisaged under Article 21 of the Constitution of India. 

The Decision of the Court

The present petition was disposed of with a direction to the Superintendent of Police, Nuh, Haryana to decide representation dated 23.11.2020 of the Petitioners and take the necessary action as per law. While the marriage was not categorically decided upon, the judge decided that it is vital for police protection to be provided.

Click here to read Jakar v. State of Haryana and Ors.


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