NEW DELHI: The Supreme Court on Monday agreed to hear an appeal filed by the National Commission for Protection of Child Rights (NCPCR) challenging a Punjab and Haryana high court order which had said that a Muslim girl above 16 years was competent to enter into a contract of marriage with a person of her choice.
The commission approached the court against the HC order saying that sexual intercourse with someone below the age of 18 years, even after marriage, is sexual assault under the Pocso Act and HC’s order recognizing marriage of minor could adversely impact the rights of minor Muslim girls.
Appearing before a bench of Justices Sanjay Kishan Kaul and Abhay S Oka, solicitor general Tushar Mehta said the commission was not challenging the protection granted to the minor girl who married against the wishes of her family but pleaded that the order of HC pertaining to marriageable age of Muslim girl should be stayed as it could be followed by other HCs. He submitted the court should also frame questions of law to be adjudicated in the case.
The bench said it would examine the issue raised by the commission and appointed senior advocate Rajshekhar Rao to assist the court in adjudication. The case raises interesting question involving interplay of Muslim Personal Law and the secular penal provision of the IPC and Pocso Act.
As per the appeal filed by advocate Swarupama Chaturvedi, the commission submitted that the HC erred in ignoring the fact that sexual intercourse with a girl below the age of 18 years is sexual assault as per Pocso Act and this legal position cannot change due to marital status of the child.
“The observation of the HC in the impugned order has erroneously arrived at the conclusion that as under Muslim law puberty and majority mean the same thing, the marriage between respondents 1 and 2 is valid,” NCPCR said.

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