"This Court notes that according to Mohammedan 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....," a bench of justices S Ravindra Bhat and SP Garg said.
Citing various Supreme Court judgements on the issue of minor Muslim girls' marriage, the bench said "In view of the above judgments, it is clear that a Muslim girl who has attained puberty i.e. 15 years can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, which is 18 years."
Accepting the 16-year-old girl's plea for allowing her to stay in her matrimonial home, the bench has disposed of a habeas corpus petition filed by the girl's mother alleging that her daughter was kidnapped by a man and forced into marriage in April last year.
The bench accepted the girl's statement that she had left at her parental home. According to the statement she had willingly married the man of her choice and her husband cannot be booked on the charge of kidnapping.
Meanwhile, to ascertain the girl's well-being, the Court has directed the couple and in-laws to appear before the Child Welfare Committee once in every six months till the girl turns 18.
"The Committee shall take necessary steps, including obtaining the necessary undertaking from the man (husband) in this regard. Subject to completion of these steps, the girl be allowed to live in her matrimonial home," the bench said.
According to the habeas corpus petition filed by the girl's mother, after abducting the girl who had Rs 1.5 lakh on March 13, 2011, the man had telephoned her, threatening to kidnap her other daughter if any legal action was taken against him.
The petitioner claimed that on March 19, 2011 she had also approached the Deputy Commissioner of Police and requested him to rescue her minor daughter from illegal detention.
As per the petition, on April 14, 2011 an FIR was registered with Gokalpuri police station in north-east Delhi alleging that the man had kidnapped her daughter.
The mother said that the police had not taken any action, forcing her to approach the High Court.
During the hearing of her plea, the Court had issued notice to the police. Subsequently, the police produced her in the Court saying that she had voluntarily gone with the man and married him.
Since then they have been staying as husband and wife, the police told the Court.
On April 18, 2012 the girl had also told the Court that she did not wish to go back to her parents and wanted to stay with her husband.
Meanwhile, she was kept in Nirmal Chhaya after her production before the Child Welfare Committee, which has stated that the girl was 15 years, 10 months and 23 days.