No impeding right of guardian to interfere if marriage is in conformity with the Personal Laws: Punjab and Haryana High Court
The present matter before the Punjab High Court involves a criminal Writ Petition under Article 226/227 of the Constitution of India for issuing a writ in the nature of mandamus directing respondent Nos.2 and 3, specifically the State authorities to protect the life and liberty of the petitioners at the hands of private respondent Nos.4 to 6. The bench of Sudip Ahluwalia J. encountered the tenets of Mohmeddan law in respect of matrimony wherein the marriage of the petitioners stood threatened in Aasma v State of Haryana [CRWP-1148-2021]. In the present case, both the petitioners are Muslims by religion. They fell in love and decided to perform Nikah. The date of birth of petitioner No.1 is 27.07.2004 and that of petitioner No.2 is 13.09.1996 as per their Aadhar Cards, respectively. Both the petitioners have solemnized their Nikah on 21.01.2021 as per Muslim rites and ceremonies. It was contended on behalf of the petitioners that this was the first marriage of both the petitioners. Further reliance was placed upon the decisions by this Court in Kammu vs. State of Haryana &amp; Ors [2010(4) RCR (Civil) 716]; Yunus Khan vs. State of Haryana &amp; Ors. [2014(3) RCR (Criminal) 518] and Mohd. Samim vs. State of Haryana &amp; Ors.[2019 (1) RCR (Criminal) 685] to contend that in Muslim law puberty and majority are one and the same and that there is a presumption that a person attains majority at the age of 15 years. It was further contented that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere.
The law, as laid down in various judgments cited above, is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, the petitioner No.1 being over 16 years of age was competent to enter into a contract of marriage with a person of her choice. Petitioner No.1 is stated to be more than 36 years of age.  Thus, both the petitioners are of marriageable age as envisaged by Muslim Personal Law. In any event, the issue in hand is not with regard to the validity of the marriage but to address the apprehension raised by the petitioners of danger to their life and liberty at the hands of the private respondents and to provide them protection as envisaged under Article 21 of the Constitution of India. Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her life and personal liberty except as per the procedure established by law. The Court opined that it cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India. The court in light of the above discussion, sounded judgment that, “Without expressing any opinion with regard to the veracity of the contents of the petition and the submissions made by learned counsel for the petitioners, the present petition is disposed of with a direction to the Superintendent of Police, Yamuna Nagar, District Yamuna Nagar (Haryana) (respondent No.2) to decide the representation of the petitioners dated 01.02.2021 (Annexure P-5) and take necessary action as per law.”
 on 03 05 CRWP 1148 2021 1 113IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRWP 1148 2021Date of Decision: 29.04.2021 Aasma and another..... PetitionersVersusState of Haryana and others..... RespondentsCORAM: HON BLE MR. JUSTICE SUDIP AHLUWALIAPresent:Mr. Sanchit Punia Advocate for the petitioners.SUDIP AHLUWALIA J.RCR on 03 05 CRWP 1148 2021 2716] “Yunus Khan vs. State of Haryana & Ors.”RCR(Criminal) 518] and “Mohd. Samim vs. State of Haryana & Ors.”RCR685] to contend that in Muslim law puberty andmajority are one and the same and that there is a presumption that a personattains majority at the age of 15 years. It is further contented that a Muslimboy or Muslim girl who has attained puberty is at liberty to marry any onehe or she likes and the guardian has no right to interfere. 4.Learned counsel for the petitioners would further contend thatthe life and liberty of the petitioners is in grave danger at the hands ofrespondent Nos.4 to 6. It is further contended that the petitioners have alsomoved a representation dated 01.02.2021to theSuperintendent of Police Yamuna Nagar District Yamuna Nagarin a time bound manner inaccordance with law. 5.Notice of motion. 6.On the asking of the Court Mr. Karan Sharma AAG Haryanahas joined the session through video conferencing and accepts notice onbehalf of respondent Nos.1 to 3. 7.Heard learned counsel for the parties. 8.This Court has taken note of the judgments cited on behalf ofthe petitioners and also the fact that the girl in the instant case i.e. petitionerNo.1 is aged more than 16 years. In the case of Yunus Khanit has on 03 05 CRWP 1148 2021 3 been noted that the marriage of a Muslim girl is governed by the personallaw of the Muslims. Article 195 from the book ‘Principles of MohammedanLaw by Sir Dinshah Fardunji Mulla’ has also been reproduced in the saiddecision which Article reads as under : “195. Capacity for marriage Every Mahomedan ofsound mind who has attained puberty may enter into acontract of marriage.Lunatics and minors who have not attained pubertymay be validly contracted in marriage by theirrespective guardians.A marriage of a Mahomedan who is sound mind andhas attained puberty is void if it is brought aboutwithout his consent. Explanation Puberty is presumed in the absence of evidence on completion of the age offifteen years.” 9.The law as laid down in various judgments cited above is clearthat the marriage of a Muslim girl is governed by the Muslim Personal Law.As per Article 195 from the book ‘Principles of Mohammedan Law by SirDinshah Fardunji Mulla’ the petitioner No.1 being over 16 years of age wascompetent to enter into a contract of marriage with a person of her choice.Petitioner No.1 is stated to be more than 36 years of age. Thus both thepetitioners are of marriageable age as envisaged by Muslim Personal Law.In any event the issue in hand is not with regard to the validity of themarriage but to address the apprehension raised by the petitioners of dangerto their life and liberty at the hands of the private respondents and toprovide them protection as envisaged under Article 21 of the Constitution ofIndia. Article 21 of the Constitution of India provides for protection of lifeand personal liberty and further lays down that no person shall be deprived on 03 05 CRWP 1148 2021 4 of his or her life and personal liberty except as per the procedure establishedby law. The Court cannot shut its eyes to the fact that the apprehension ofthe petitioners needs to be addressed. Merely because the petitioners havegot married against the wishes of their family members they cannotpossibly be deprived of the fundamental rights as envisaged in theConstitution of India. 10.In view of the above discussion and without expressing anyopinion with regard to the veracity of the contents of the petition and thesubmissions made by learned counsel for the petitioners the present petitionis disposed off with a direction to the Superintendent of Police YamunaNagar District Yamuna Nagar(respondent No.2) to decide therepresentation of the petitioners dated 01.02.2021and takenecessary action as per law. 11. This order would not ipso facto amount to grant any seal ofapproval on the legality of petitioners marriage which essentially wouldcome in the domain of the concerned Matrimonial Courts. Further theywould not be entitled for any protection against their arrest or continuanceof any criminal proceedings if otherwise found to be involved incommission of any cognizable offence(s). 12.The petition is disposed off with the above direction. (SUDIP AHLUWALIA)29.04.2021 JUDGEBhumika Jitesh (JTS)1. Whether speaking reasoned:Yes2. Whether reportable:No 