Mohd. Nihal v. State W.P. (Crl.) 591/2008

Quick Summary

A husband sought a writ to get custody of his wife, Afsana. The court examined three things: Was the marriage valid under Muslim law? Who could be a lawful Wali? And what about custody? It found no proof of puberty, and no consent from a lawful Wali while the father was alive. A brother-in-law cannot be Wali. The marriage was treated as void ab initio (batil). Custody as a conjugal right was refused; as an adult, Afsana could choose where to live.

Issues

• Does any law outside personal law invalidate a Muslim girl’s marriage if she is below 18 but claims puberty?
• Who may act as a valid Wali when the father is alive?
• Is the husband entitled to custody of the wife through habeas corpus?

Rules

• Prohibition of Child Marriage Act, 2006 (ss.2–3): Protects minors from child marriage and enables relief.
• Muslim Personal Law (Shariat) Act, 1937 (s.2): Personal law on marriage/guardianship applies to Muslims.
• Indian Contract Act, 1872 (s.11): Competency—minor cannot contract; used contextually.
• Wali order (personal law): Father, then grandfather, great-grandfather, brother, uncle/grand-uncle, and mother—in that sequence. Brother-in-law is not a Wali.

Facts (Timeline)

1. Marriage claim (31 Mar 2008): Husband (22) says he married Afsana under Muslim rites; brother-in-law allegedly acted as Wali.
2. FIR: Mother files FIR under IPC s.363 against the husband.
3. Habeas corpus: Husband seeks custody of wife through writ petition.
4. Dispute: Age and puberty contested; no proof that father consented as Wali.
5. Court’s focus: Validity of marriage; lawful Wali; present choice of adult woman.

Arguments

Judgment

Held: Under Muslim law, marriage of a girl who has not attained puberty can be legitimate only with a lawful Wali’s consent. Here, there was no evidence of the father’s consent and a brother-in-law is not a valid Wali. No proof of puberty or age 15 was shown. Therefore, the marriage was treated as void ab initio (batil). Conjugal custody was refused; as she had become a major, Afsana was free to choose where to live.

• Father (being alive) was the competent Wali; others could not replace him without cause.
• Statutory protections under PCMA supported the outcome.

Ratio

A Muslim girl’s marriage below 18 requires proof of puberty and consent of a lawful Wali (father first). If the father is alive and did not consent, and puberty is unproved, the marriage is void. Adult woman’s present choice controls custody.

Why It Matters

• Clarifies who is a valid Wali and the order of preference.
• Shows how PCMA interacts with Muslim Personal Law.
• Affirms adult choice in custody once majority is reached.

Key Takeaways

1. Father is the primary Wali; brother-in-law cannot fill that role.
2. Below 18, puberty proof and lawful Wali’s consent are crucial.
3. PCMA supports protection of minors and informs court relief.
4. Once major, a woman’s choice decides custody in habeas corpus.

Mnemonic + 3-Step Hook

Mnemonic: WALI-P — Who is Wali? (father first) • Age/Puberty proven? • Law (PCMA + Shariat) • Invalid if gaps • Person’s present choice when major.

1. Spot: Is the bride below 18? Has puberty been proved?
2. Probe: Did a lawful Wali consent (father first in order)?
3. Pin: Apply PCMA + personal law; if void, no conjugal custody; adult decides.

IRAC Outline

Glossary

Wali

Guardian who gives consent for a minor’s marriage under Muslim personal law; father is first in order.

Puberty

Physical maturity; often discussed at 15 years in personal law contexts, but requires proof.

Void ab initio (Batil)

A marriage treated as having no legal effect from the beginning.

FAQs

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