SC refuses to entertain NCPCR’s petition against Punjab and Haryana HC order allowing minor Muslim girl’s marriage

The Supreme Court on Tuesday refused to entertain the National Commission for Protection of Child Rights’ petition against the Punjab and Haryana High Court’s order, which extended protection to two Muslim married couples, the brides being girls aged 15-16 years.

"NCPCR has no locus (standi) to challenge such an order...if two minor children are protected by the high court, how can NCPCR challenge such an order?...It is strange that the NCPCR, which is for protecting the children, has challenged such an order," a Bench of Justice BV Nagarathna and Justice R Mahadevan said.

The NCPCR counsel tried to convince the Bench by arguing that the order had been challenged considering the question of law involved but the Bench was not impressed.

"The writ (petition) before the high court was filed seeking a writ of mandamus ... to protect their (couple's) life and liberty ...The high court has granted the prayer. We fail to see how NCPCR can be aggrieved by such an order. If the high court, in exercise of its power under Article 226, seeks to extend protection to two individuals, the NCPCR has no locus standi to challenge such an order, the Bench said, dismissing the petition.

Faced with divergent views of various high courts as to whether a minor Muslim girl can marry a man of her choice on attaining puberty at 15, the Supreme Court had on January 13, 2023, agreed to examine the contentious issue.

The NCPCR had challenged an order of the Punjab and Haryana High Court that said such a marriage was permissible under the Muslim Law.

The top court had earlier issued notices to the Haryana government and others on the NCPCR’s petition.

Muslim girls aged 14, 15 and 16 years were getting married even as it amounted to a crime under the Protection of Children from Sexual Offences (POCSO) Act, 2012, Solicitor General Tushar Mehta had pointed out. "Can there be a defence of personal law? Can you plead custom or personal law as a defence against a criminal offence?" Mehta had wondered.

The high court’s order had come on a habeas corpus petition filed by a 26-year-old man against the detention of his 16-year-old wife in a children's home in Panchkula.

Maintaining that 15 years was the age of puberty of a Muslim female, the High Court had in 2022 held that she could on her own willingness and consent marry a person of her choice after attaining puberty. Such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006, it had noted. It had passed another order on the same line the same year.