Civil Laws versus Personal Laws
By Vidya Bhushan Rawat
07 June, 2012
Delhi High Court has held that a marriage of minor (Muslim) is valid even if she is under age but has attained puberty. A bench of Justice Ravindra Bhatt and Justice S.P.Garg said that ‘ according to Mohamadan Law, a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18.' The girl in question was 15 years of age and had married to a person of her choice. Her parents filed a case in the Delhi High Court citing that the girl was minor and parents were still the legal guardian of her. The court has rejected the parent's petition and allowed the girl to stay with her husband.
The judgment can be interpreted in many ways including right to privacy and freedom of choice. The court has respected girl's right to choice. It has accepted albeit indirectly that age for consensual sex could be below 18 if the girl attained puberty. In other way, the judges suggest that a Muslim girl attaining puberty can have consensual sex even if she is below 18 which is legally defined age for consensual sex in our laws. It is clear that the court have accepted the supremacy of the Personal Laws and used it to give protection to the girl. Problem is that the same yard stick may not be applied to a girl from other religion. What will happen if the lovers are from two different religions and have gone for civil marriage and the age of the girl is 15. Will the ‘consensual sex' not become rape even if she has attained puberty?
The Parliament has recently passed The Protection of Children from Sexual Offences Act, 2012 which defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. Accordingly, the Act has strengthened our resolve to fight against Child Sexual Abuse.
Punishments for Offences covered in the Act are:
· Penetrative Sexual Assault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
· Aggravated Penetrative Sexual Assault (Section 5) – Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
· Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8)
· Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)
· Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)
· Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))
Now the question is why the civil courts are using personal laws in their jurisdiction when their duty is to interpret the constitutional laws. If we accept the supremacy of our constitutional provisions then all other laws of the country including personal laws, must be subordinate to our civil laws. And this must come strongly in the judgments. Unfortunately, the Judges have been using these religious moralities to explain or strengthen their arguments which seem to be quite dangerous. The Court's should not ignore the historic judgment that Supreme Court had given in the Shabano case about 25 years back which virtually challenged the supremacy of the Muslim Personal Laws which were adamant against a divorce woman getting any alimony. It is a landmark judgment with an equally retrogressive move by Indian Parliament to undo it when Rajiv Gandhi was compelled by the Muslim fundamentalists to do so. According to them, no law of the land is above the Muslim Personal Law and hence the government must respect these personal laws.
Over the years, we have seen that Sharia Courts have been established in different parts of the country which provide instant justice to Muslim families who go there. They are primitive in nature and their judgments mostly are absurd to say the least. These Sharia Courts give the clergy a leverage to control and direct the community and decide about their fate. Deeply rooted in traditional prejudices, these courts are openly anti women and have always justified their act in the religious terms. Muslim women who are victim of these courts are now challenging them and approaching the civil courts where they have often got justice.
There is no doubt that Delhi High Court has rescued the girl who might have married to her lover out of her own choice. That that a teenage girl is capable of making her choice related to her partner must be respected. It is also a fact that most of the parents who are unhappy with their children's love relationships actually file cases of abduction and kidnapping on the boy. Most of the time, the police use this tool brutally to exploit both the families. If the boys' family is unable to pay to the police then he is tortured and the family faces the wrath of all. Hence, as a judgment it need to be respected but the point of danger is that it is a communal judgment as it is applicable to one community only. The courts should not give judgments which are communal in nature. Their judgments should be useful for all the citizens of the country irrespective of their caste, color, religion and region as people look forward to these judgments for their benefit. Unfortunately, the Delhi High Court's judgment is bound to create disharmony among people and will strengthen the supremacy of religious values. It is the duty of the court to encourage the values of the modern democratic traditions of equality, liberty and fraternity on which our constitution has been founded. Our constitutional provision and civil laws must supersede all the existing religious laws in the country so that each one of its citizen get justice according to our modern laws. It is the duty of the Court's to see whether the interpretation of religious texts violate of the constitutional provisions in our laws. The court will have to stand up for our secular constitution which should be equal for all. Our laws cannot be interpreted in different ways for different communities particularly in an issue like sex and marriages. The Judgment will virtually make Child Protection Act 2012 invalid for the Muslim Children in the country who face a lot of victimization and sexual abuse like children for other communities and need strong legal protection.
Vidya Bhushan Rawat is a social and human rights activist. He blogs at www.manukhsi.blogspot.com
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