The Global Campaign for Equality in Family Law is a campaign led by eight women’s rights organisations, with the goal of equality for women and girls and other marginalised groups under law, policy, and practice in matters relating to family in all their diverse forms, regardless of religion and culture. The Campaign also seeks to amplify national-level efforts pushing for reform of family laws, policies, and practices that discriminate against women and girls. This statement is in light of ongoing campaigns by Indian Muslim Women’s Movement seeking legal equality on cases of child marriage in India.
There has been a longstanding call by Bharatiya Muslim Mahila Andolan (BMMA) (Indian Muslim Women’s Movement) for justice and equality in marriage and family matters. Most recently, BMMA has been urging that the provisions of the Prohibition of Child Marriage Act (PCMA), 2006, which prohibits marriage before the age of 18 for girls, must be unequivocally and unambiguously applied in all cases relating to child marriage affecting girls and women from the Muslim communities across India.
On January 13, 2023, in response to a petition filed by the National Commission for Protection of Child Rights (NCPCR) and in advance of its final decision, the Supreme Court of India annulled the precedential value of a Punjab and Haryana High Court order that had validated the marriage of a 15-year-old Muslim girl. The marriage was sanctioned on the premise that the ‘Muslim personal law’ deems the marriage of a girl who is willing and who has attained puberty valid, in violation of international law and the PCMA.
The Global Campaign for Equality in Family Law coalition is greatly encouraged by the fact that the Supreme Court has agreed to consider the NCPCR petition on this crucial equality issue, and we hope that it results in a strong judgment that addresses this ambiguity and explicitly prescribes that Muslim girls and women in India be guaranteed equal protection under national laws without any exception. Some High Court judgments (including by the Delhi and Kerala High Courts) have already held that the provisions of the Protection of Children from Sexual Offences Act (POCSO) 2012 would be attached even in cases of sexual intercourse with a ‘married’ Muslim girl under 18.
A BMMA study, Seeking Justice Within Family, shows that out of the 4,710 respondents, 55% were married before the age of 18, and 15% among them were below the age of 15 when the marriage occurred. Deferring to the uncodified personal law in matters of child marriages and not to national legal provisions that extend protections to all children increases the vulnerability that Muslim girls and women in India face. Their access to equal legal rights is undermined, and the ambiguity of which law determines their age of consent and marriage greatly affects their ability to make informed choices and seek justice in instances of violations.
National laws and protections must unconditionally include Muslims
PCMA and POCSO are national and secular laws that apply to all citizens of India. But despite a 2017 Supreme Court judgment restating PCMA’s secular nature, its provisions are being applied unevenly and arbitrarily to children of different communities, especially in cases of child marriage affecting Muslim women and girls. This gap needs to be addressed urgently because it has resulted in the violation of women’s and girls’ rights and led to contradictory and inconsistent judgments in cases of child marriage in India.
“The contradictory judgments of various courts on child marriage regarding the Muslim community emerged because the law related to child marriage is ambiguous about its application to the Muslim community. A judgment of High Courts or the Supreme Court can never be a substitute for law.”Excerpt from BMMA’s Open Letter to the Supreme Court of India, January 17, 2023
India is a signatory to and has ratified a number of United Nations conventions and frameworks, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Beijing Platform for Action, and the Convention on the Rights of the Child, and has endorsed the 2030 Agenda for Sustainable Development (the SDGs) that encourages a dedication to gender equality and empowerment. The State has an obligation to guarantee legal equality for all women and girls and to prevent child marriage and sexual violence.
A codified Muslim Family Law is a Constitutional right
Despite being a minority, Indian Muslims constitute the second-largest population of Muslims in the world (172.2 million). The lack of a codified Muslim family law has meant a fractured and ambiguous application of Islamic jurisprudence on marriage and family matters at the discretion of primarily male religious scholars.
The BMMA has advocated for Muslim women’s rights within their marriage and family matters for over 15 years, calling for a comprehensive codified Muslim family law based on progressive Islamic jurisprudence and one that adheres to and protects constitutional guarantees of equality and non-discrimination. Such a codified family law can ensure that injustices faced by Muslim women and girls pertaining to divorce, polygamy, child marriage, child custody, and property rights, among other issues, are addressed.
On the issue of child marriage – there is compelling evidence from Islamic jurisprudence that emotional maturity and sound judgment are prerequisites for marriage. According to research on ‘Ending Child Marriage in Muslim family Law’ by the Global Campaign coalition member Musawah, ‘The ability to enter contracts (legal capacity) requires that a person attain … the intellectual maturity to handle one’s own property and affairs.’ BMMA further reiterated in their open letter to the Supreme Court of India (January 17, 2023) that a Muslim marriage is a contractual obligation and can only be entered into by two consenting adults. This progressive interpretation, codified into Muslim family law, has the potential to eliminate contradicting interpretations and practices within Muslim communities in India.
The Global Campaign for Equality in Family Law coalition stands in solidarity with BMMA’s demands and strongly urges the Indian government to:
- Ensure that the provisions of the Prohibition of Child Marriage Act (PCMA) 2006, are unequivocally and unambiguously applied in all cases relating to child marriage affecting girls and women from Muslim communities across India;
- Codify an egalitarian and constitutionally-compliant Muslim family law, which is developed in consultation with Muslim women’s groups, in order to address the many discriminatory issues faced by Muslim women in India.
*The Global Campaign for Equality in Family Law is a joint campaign launched in March 2020 by Act Church of Sweden, CLADEM (Latin American and Caribbean Committee for the Defense of Women’s Rights), Musawah, Muslims for Progressive Values, SOAWR (Solidarity for African Women’s Rights) network represented by African Women’s Communication and Development Network (FEMNET), Equality Now, Women’s Learning Partnership, and UN Women.
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