Criminal law has to be uniform for different religions and communities, writes Sunil Garodia
In August, a 17 year old Muslim girl was married to an older citizen of the United Arab Emirates in Kozhikode in Kerala. The groom divorced the girl after just 17 days of marriage and left for his country. There was a probe on how a girl below 17 was married by her family. After this, a controversy has arisen in Kerala on when Muslim girls can marry.
An outfit named Muslim Vyakti Niyam Samrakshan Samity (MVNSS) has said that according to Muslim Personal Law, girls from the community should be allowed to marry after reaching puberty, which in a tropical
country like India can be as early as 11 years. They have also decided to petition Supreme Court in this
matter.
But in September, Kamini Lau, Additional Sessions Judge of a Delhi Court, ruled that when the personal law of any religion clashes with the criminal laws of the country, the latter will be given precedence. She gave this ruling in a case where a Muslim man was charged with kidnapping and having sexual relations with a 17 year old girl from the same community. The girls’ parents had lodged a case of kidnapping, rape and unlawful confinement on him. In his defence, the man pleaded that as the girl was an ‘adult’ under Muslim personal law, he could not be held guilty of rape. But the judge ruled that under various sections of the IPC and Prevention of Children from Sexual Offences (POCSO) Act, 2012, having sexual relations with a girl below 18, even with her consent, was tantamount to rape, even if the accused and the victim were both from the same religion.
Before this, in June 2012, a two judge bench of the Delhi High Court had ruled that Muslim girls could marry before 18. Justices Ravindra Bhat and SP Garg had cited several Supreme Court rulings to arrive at their decision. In that case too, a Muslim man was charged with kidnapping and rape of a 16 year old, but he had married the girl. The girl had expressed her desire to remain with her in-laws which the court had allowed. But the POCSO Act was not in force then. The decision came on 4 June 2012 and the act was notified in the Gazette on June 20.
It is not possible to have different criminal laws for different religions or communities. There has to be a uniform criminal or penal code in the country. Ideally, there should also be a uniform civil code. But since the Indian constitution grants every citizen the right to freely practice his religion, it has not been possible to introduce it even after prolonged debate on the matter. In 1986, after the Shah Bano case, there had been a countrywide debate on the uniform civil code. Nothing much came out of it, except that Rajiv Gandhi, the then prime minister, chose to enact the regressive Muslim Women (Protection of Rights on Divorce) Act, 1986.
But now with POCSO in place, it is clear that the plea of having the consent of an under 18 girl for having sexual relations with her is not valid. During the debate in Parliament, many legislators had rooted for lowering the age of consent to 16, but it fell through on lack of support and the age remained at 18 years. The logic behind the enactment was that a girl below 18 was sexually exploited as she was not capable of deciding when and with whom to have sexual relations.
This happened in the Kerala case cited above. The foreign groom left just 17 days after marriage. Several instances have come to light where poor parents and other greedy relatives marry under-age girls to foreigners after taking huge sums of money. These grooms vanish after a few weeks of
marriage. POCSO has to be employed to prevent this kind of exploitation too.
That Muslim girls are against the lowering of marriage age was evident in a survey conducted in the Mallappuram district of Kerala by the Muslim Education Society. It distributed 4040 forms in several colleges run by it to girls between 16 and 19 asking them if the age of marriage should be reduced from 18. An overwhelming majority, 4003 girls, gave a resounding no as an answer. Today&’s youth, irrespective of religion and community, have become very committed to their future. Hence, the so-called caretakers of society have no right to impose their will on the youth.
The writer is a freelance journalist