Punjab and Haryana High Court: Alka Sarin, J., while addressing the present matter made an observation that:
The alleged illegality of the marriage of the petitioners having been solemnized without the consent of the first wife is not to be gone into in the present proceedings which are only regarding providing of protection to the petitioners.
In the instant case, petitioners were both Muslim. Petitioners solemnized their marriage as per Muslim rites and rituals and a translated copy of the Nikahnama has been attached.
Marriage was solemnized against the wishes of respondents 4 to 7 who are the relatives of petitioner 2.
Petitioners Counsel submitted that the petitioners apprehended danger to their life at the hands of respondent 4 to 7.
Counsel for the petitioners submitted that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.
Bench noted that the girl s aged more than 18 years in the instant case. In the decision of Yunus Khan v. State of Haryana, [2014(3) RCR (Criminal) 518] it was observed that the marriage of a Muslim girl is governed by the personal law of Muslims. Article 195 from the book Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla has also been reproduced in the said decision which article reads as under :
“195. Capacity for marriage – (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.
(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.
Explanation – Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.”
Court held that both the petitioners in the instant were of marriageable age as envisaged by Muslim Law. The issue in hand was not the validity of the marriage but the fact that the petitioners were seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India.
Bench held that:
The Court 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.
In view of the above discussion, Court disposed of the petition with a direction to Superintendent of Police to take the necessary action as per law.[Jakar v. State of Haryana, 2020 SCC OnLine P&H 2266, decided on 16-12-2020]
Advocates who appeared before the Court:
Vishal Garg Narwana, Advocate, for the petitioners.
Naveen Singh Panwar, DAG, Haryana.
Vipul Aggarwal, Advocate for respondent 4
Sunita Gupta, Advocate for Warisa (first wife of petitioner 1)