The Punjab and Haryana high court has allowed the custody of a 16-year-old girl to her husband while reiterating that a Muslim aged 15 and above can marry a person of her choice and such a marriage will not be void.
A bench of Justice Vikas Bahl heard a habeas corpus petition of Javed (26), seeking custody of his 16-year-old wife who was kept at a children's home in Haryana's Panchkula.
The petitioner had stated that at the time of their marriage, his wife was more than 16 years of age and the marriage was performed out of their free will and without any pressure.
The petitioner through his counsel had submitted that both were Muslims and they performed 'Nikah' on July 27 at a mosque in Mani Majra in Chandigarh.
The petitioner's counsel, while relying upon the judgment of a coordinate bench of the high court in Yunus Khan vs state of Haryana case, argued that the custody of the girl should be handed over to the petitioner.
However, the state's counsel had opposed the petition and submitted that she was a minor, therefore, she was being kept at Ashiana Home.
The state's counsel had prayed for the dismissal of the petition.
While going through the judgment in the Yunus Khan case, the judge in his September 30 order said its perusal "would show that a coordinate bench of this court in the above said judgment had observed that the marriage of a Muslim girl continues to be governed by the personal law of Muslims."
The court said the HC bench had "relied upon the principles of Mohammedan law" and after considering the same, it has been observed that "15 years is the age of puberty of a Muslim female and on her own willingness and consent, after attaining puberty can marry a person of her choice".
"Such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006," the court said.
"The law laid down in the above said judgment would apply to the facts of the present case," said the Judge in his order.
The judge then allowed the handing over the custody of the girl to the petitioner.
"Keeping in view the above said facts and circumstances and law laid down in the above said judgments, the present petition is allowed and the incharge, Ashiana, Sector 16, Panchkula, is directed to hand over the custody of the detenue, as mentioned in the headnote of the present petition, to the petitioner," the order said.
