Indian law vs personal law: A Muslim child marriage focuses debate

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An Indian Muslim bride waits for the start of a mass wedding ceremony in Ahmedabad on October 24, 2010. Some 65 Muslim couples participated in a mass wedding ceremony organised by The Fazale Rabbi Samuh Lagna Committee. AFP PHOTO/Sam PANTHAKY

The recent incident in Tamil Nadu, where a district tax collector prevented the marriage of a minor Muslim girl who gave rise to communal protests, highlights once again the conflict between Indian law and personal laws.

According to reports, the collector prevented the marriage of a 17-year-old girl in the Perambalur district, in the center of Tamil Nadu, with a 36-year-old man, since she was not old enough to marry. The boyfriend was sent to court custody while the girl was sent to a pre-trial detention home.

An incident in Tamil Nadu, where a district collector prevented the marriage of a Muslim minor, has sparked protests.

The leaders of the local community rose up in arms saying that the action was a violation of their personal laws. Apparently, the turmoil is brewing with the support of the Indian Union Muslim League (IUML).

The Collector took action under the Child Marriage Banning Act of 2006 (PCMA) which prohibits the marriage of a girl under the age of 18 or a child under 21 years of age. However, the Law establishes certain flexibilities that can neutralize an important part of the effectiveness of the law.

Although the protesters are arguing on the basis of their personal law, or more precisely the Sharia, it is not necessary that they have taken a common angle. In legal terms, marriage is not null unless the girl has a complaint.

According to Section 3 of the Child Marriage Act, marriage is “voidable at the option of the contracting party that was a child at the time of marriage”, which means that in this case, only the girl has the right to request an annulment of marriage.

In fact, the same section also prescribes that the applicant must be the same person who was a child at the time of the marriage.

Under section 13, courts also have the power to issue a court order prohibiting child marriages. Subsection States (1):

Notwithstanding any provision to the contrary of this Act, if the Metropolitan Magistrate, at the request of the Child Marriage Prohibition Officer or upon receiving information, is satisfied that a child marriage has been concluded or will be solemnized in contravention of this Act, The magistrate will issue a court order against any person, including a member of an organization or an association of persons who prohibit such marriage.

The subsection also establishes:

(2) Any person who has a personal knowledge or reason to believe and a nongovernmental organization that has reasonable information, related to the probability of holding solemnity of a child marriage, may file a complaint under subsection (1). child marriages

In this case, it is not clear whether the collector made the decision for himself or for a complaint from the girl. If the girl has filed a petition, both the boyfriend and the parents can be punished with a prison sentence of up to two years and a fine of up to Rs. Lakh Even those who conspired or participated in the process are punishable.

The collector remains firm on the subject. In view of the practice of child marriage in the region, it has so far frustrated more than 100 such incidents and has also advised schools to maintain an account with girls who leave or seek transfer certificates.

Interestingly, as the provisions of the Child Marriage Act show, the argument of Islamic activists to communalize the issue is misplaced. It is not necessary to argue the case as a violation of Muslim personal law because the same is also applicable to Hindu marriages. It is a problem of the age of the girl or the boy.

“There is no need for any communal color or to address a particular community here,” says Geeta Ramaseshan, senior lawyer at the Madras High Court. “Many Hindu marriages in India also involve minors,” she says.

Child marriage, or the marriage of girls under the age of 18, is rampant in India. Communities, regardless of their religions, even argue that if one strictly complies with the law, a large number of marriages in the country are apt to be annulled, which will have dramatic consequences in the lives of women, from the inheritance of property up to the maintenance of families and children.

Gaps in the law, the justification of traditional practices in the name of caste and religion, the inability of the victims to protest, as well as the lack of conscience keep this shameful practice going. Efforts by lone rangers like Dr. Darez Ahmed, the collector of Perambalur, are the exceptions that must be multiplied.