Highlighting the inconsistencies in various laws, the Supreme Court today also touched upon separate marriage laws for Hindus and Muslims and said the provisions make a "mockery" of the Prohibition of Child Marriage Act (PCMA).
Under the Dissolution of Muslim Marriages Act, 1939, if a minor girl under the age of 15 years is married under Muslim law, she can obtain a decree of dissolution of marriage before she attains the age of 18 years provided that the marriage has not been consummated.
"This provision deals with girls below the age of 15 years who are got married. Such a girl is required to repudiate her marriage before she attains majority and she can only repudiate the marriage, if the marriage has not been consummated. This virtually makes mockery of the PCMA,"a bench of Justices M B Lokur and Deepak Gupta said.
Elaborating on the anomaly, the bench said even in a marriage which is void under PCMA, the girl will have to obtain a decree for dissolution of her marriage, that too before she attains the age of majority and only if the marriage has not been consummated.
The bench dealt with another anomalous situation and said that if the husband has forcible sex with such a girl, the marriage is consummated and the girl child is deprived of her right to get the marriage annulled.
While dealing with provisions of the Hindu Marriage Act, 1955, the bench said, a Hindu girl can file a petition for divorce on the ground that her marriage, whether consummated or not, was solemnised before she attained the age of 15 years and she has refused to accept her marriage after attaining the age of 15 years but before attaining the age of 18 years.
"This is also not in consonance with the provisions of PCMA, according to which marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce. A void marriage is no marriage," it said.
The bench also highlighted another anomaly in the Hindu Marriage Act saying that a child bride, who is above 15 years under PCMA, can apply for annulment of marriage up to the age of 20 years.
"...Under Section 13(2)(iv) of the Hindu Marriage Act, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority. The question that remains unanswered is who will represent or help this child, who has been forced to marry, to approach the Courts," the bench said.
The top court said it is obvious that while making amendments to various laws, some laws are "forgotten" and consequential amendments are not made in those laws.
It said that after the PCMA was enacted both the Hindu Marriage Act, 1955 and the Dissolution of Muslim Marriages and Divorce Act, 1939 should also have been suitably amended, but this has not been done.
"In my opinion, the PCMA is a secular Act applicable to all. It being a special Act dealing with children, the provisions of this Act will prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act, in so far as children are concerned," Justice Gupta said.
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