The need for a Common Civil Code

H.H. (Adv.) Suresh Kulkarni

1. A Muslim husband’s petition in Punjab and Haryana High Court to get possession of His wife

A 26-year-old Muslim named Javed filed a Habeas corpus petition in the Punjab and Haryana High Court (Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a Court and request that the Court order the custodian of the person, usually a prison official, to bring the prisoner to Court, to determine whether the detention is lawful. In such cases, Article 226 of the Constitution provides the High Courts with the authority to issue writs, including writs in the form of habeas corpus.) Through the petition, Javed said that a girl aged 16, who happens to be his wife, has been kept in detention centre in Sector 16, of Panchakula. “I married her on 27.7.2022 and she is my legally wedded wife. Hence, she be handed over to me now”, he stated.

Both are Muslims. He submitted the copies of their Aadhaar card to prove their ages. As per the Muslim Personal Law, when a girl attains puberty, she can marry an individual of her choice. According to her, her parents arranged her marriage with her uncle; however, she was not willing to marry him. She loved Javed. Hence, they married and are husband and wife.

When the girl’s father complained, she was produced before the Judicial Magistrate. In her testimony to the Magistrate she said she had willingly married Javed, and hence, she should not be kept in the detention centre but be free to live with her husband.

2. The petitioner took the support of the Muslim Personal Law to call the marriage legal

The support of Article 195 of the Muslim Personal Law written by Sir Dinshaw Mulla was referred to during the argument in the Court. The law says ‘Every Mohomedan (Muslim) of sound mind, who has attained puberty, may enter into a contract of marriage’. Thereafter, it was argued by taking the support of Article 201 from a book on Muslim Law by Hidaytulla and Article 27 from a book by Faiz Badruddin that if a girl’s age is between 9 and 15 years and if the boy is 15 years old, they can enter into a contract marriage as per their wish. This marriage will be legal as per the Muslim Personal Law.

3. The High Court’s order based on the Muslim Personal Law of handing over the girl to the petitioner

‘Prohibition of Child Marriage Act 2006’ has been enacted to prevent child marriages in India. Accordingly, the marriage age for boys is 21 and for girls it is 18. Hence, according to Article 12 of the Law, this marriage is illegal; however, the same marriage is legal as per the Muslim Personal Law. Hence, based on the Muslim Personal Law, the High Court ordered that the girl be released from the detention centre and be sent to the petitioner Javed.

For this verdict, the High Court referred to numerous old judgements pertaining to Muslims. Among Muslims, even if a minor girl marries against the wishes of her parents, the marriage gets the approval of the Muslim Personal Law. It was under this Law that their petitions were passed. It should be noted here that all the laws as per the Constitution of India are applicable to all the citizens. However, through the medium of the Muslim Personal Law, Muslims are granted exemption from the Constitution.

4. Union Government’s ‘Prohibition of Child Marriage Act 2006’ to prevent child marriages

Before Independence, ‘The Child Marriage Restraint Act 1929’ was in force. In 2007, this Act was annulled and a stronger ‘Prohibition of Child Marriage Act 2006’ was enacted. There were numerous child marriages in India in 1995-96. The National Commission for Women recommended ending child marriages. Many NGO’s also raised their voice against this tradition. Hence, ‘Prohibition of Child Marriage Act 2006’ was enacted. Accordingly, the marriage age for girls was fixed at 18 years and that for boys at 21 years. If an adult (over 21 years) marries a minor girl (under 18 years), he can be sentenced to 2 years of rigorous imprisonment and fined Rs 1 lakh. The same punishment is also applicable to those who are responsible for organising such marriages.

Section 13 mentions all the rules for issuing prohibitory orders so that child marriages do not take place. All these carry the mention of the ‘Hindu Marriage Act 1995’ and Section 18, which has the same provisions. Here, the ‘Hindu Marriage Act’ has been mentioned intentionally; however, the rulers and the people in the judiciary have given as much concession as possible to religious fanatics. It is necessary to change this situation.

5. Hindus should try unitedly to get the Common Civil Code implemented

Many a times there are disputes about marriages, divorces, property, birth-death, etc. in the High Courts and Supreme Court. In every case involving Muslims, the Muslim Personal Law is used as a weapon by the Muslims. At times, the Court also gives its verdict according to the law. At other times, since the marriage has been performed by abducting a minor girl, it is illegal. A case is filed under POCSO (Protection Of Children from Sexual Offences) Act, other Acts and Criminal offences under India Penal Code; however, in these cases, there are different set of rules for the Muslims.

When cases are argued in Courts on the basis of the Muslim Personal Law, the Muslims are able to obtain verdicts in their favour. As a result, they are not comfortable abiding by the Indian laws, and this is 75 years since Independence ! The Diamond Jubilee celebrations of Independence have been going on. At such times, there are some laws applicable only to the Hindus and people of other sects; but the religious fanatics (Muslims) get all the concessions from these laws – Is this correct as per the Constitution of India ? There are many people who are sensitive about and fight for child and human rights. However, they are always mum over these issues concerning Muslims and thus support them. All this should be immediately stopped. And for this to happen, it is very necessary that the Common Civil Code be implemented in India with immediate effect. The Union Government should take steps in this direction. Besides, all the Hindus should unitedly make a legitimate demand for implementation of the Common Civil Code.

In short, different Courts give different verdicts. The Police and the administration get the liberty (as per their wishes) on which verdicts to obey. Hence, to have uniform verdicts there is a need make some changes in the judicial system.

II Shrikrushnarpanamastu II
– H.H. (Advocate) Suresh Kulkarni (Advocate in the Bombay High Court, 16.11.2022)

Many people fight for child and human rights. However, they are always mum over these issues concerning Muslims !