Case Title: FIJA & ANR. v. State
The Delhi High Court observed that as per Mohammedan Law, a minor girl who had attained the age of puberty can marry without the consent of her parents and has a right to reside with her husband even when she is less than 18 years of age.
Brief facts of the case are that a Muslim couple married with Muslim rites and rituals have sought protection from the Court. The parents of the girl opposed the marriage and registered an FIR under sec. 363 of IPC against the husband. Subsequently sec. 376 and sec. 6 POCSO were added as the girl’s age was only 15 years and 5 months on the date of marriage. As per the girl, she was regularly beaten by her parents and had eloped and married out of her own free will.
The girl was recovered from the custody of her husband and her medical examination was conducted which revealed that she’s expecting a child.
The Court after considering that the marriage was solemnised according to the Muslim rituals observed that as per Mohammedan Law, girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus, otherwise was a minor.
It further held that POCSO Act will not be attracted to the present case as it is not a case of sexual exploitation but a case where the couple was in love, got married according to the Muslim laws, and thereafter, had a physical relationship. It was observed that, "The object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused, and their childhood and youth are protected against exploitation. It is not customary law specific, but the aim is to protect the children below the age of 18 years from sexual abuse."
It further added that, "If the petitioner has wilfully consented to the marriage and is happy, the state is no one to enter private space of the petitioner and separate the couple. The doing of the same will be tantamount to encroachment of personal space by the state."