The ever-helpful Religion Clause blog reports a recent decision of the High Court of Madras that the Prohibition of Child Marriage Act 2006 takes precedence over the Muslim Personal Law (Shariat) Application Act 1937. Selvam J dismissed an appeal against an order of the Perambalur Judicial Magistrate restraining the marriage of one Shahila Baanu, aged seventeen, and upholding an order of a district child welfare officer preventing her marriage. Under sharia, a girl may marry at fifteen, when she is presumed to have reached puberty; however, Selvam J declared that the Prohibition of Child Marriage Act “crossed all barriers of personal law irrespective of personal law. The marriage of a girl is prohibited until the age of 18.” Howard Friedman further reports that a public interest lawsuit has been filed in the Madras High Court in which the petitioner is seeking an order to prevent state Government officials from interfering in the marriage of Muslim girls.
Madras is a long way from the UK: but the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines child marriage as “a marriage which takes place when one or both of the people getting married is below 18 years of age” and the UN Committee on the Elimination of Discrimination against Women and the UN Committee on the Rights of the Child have both frequently recommended that all states parties should raise the minimum age of marriage to eighteen for both women and men.
Which, from a UK point of view is interesting. In England, Wales and Northern Ireland the minimum age for marriage with parental consent is sixteen; in Scotland however, where marriage law is a devolved matter, the minimum age for marriage is sixteen simpliciter: no consent is required. Before 1929, Scots law followed Roman law in allowing a girl to marry at twelve and a boy at fourteen: the minimum age was raised to sixteen in Scotland by the Age of Marriage Act 1929 (which applied in Scotland, England and Wales but not in Northern Ireland). It seems unlikely that any Government of any political persuasion on either side of the Border is likely to raise it further in the foreseeable future, even though the definition of “child” for almost all purposes is “a person who has not attained the age of 18”.