The Delhi High Court has said it may be time for the country to move towards a Uniform Civil Code (UCC), noting that conflicts between personal laws and national legislation risk criminalising communities and undermining legal certainty. The remarks came from Justice Arun Monga while granting bail to a 24- year old man accused of marrying a girl who was 14 at the time of marriage.
Conflict between personal and penal laws
According to court records, the prosecutrix supported her husband and opposed his prosecution. While Muslim personal law treats puberty, presumed at 15 – as sufficient to enter into marriage, documents showed she was 14 when the marriage took place.
Justice Monga underlined the recurring clash: Islamic law may recognise such marriages, but under the Protection of Children from Sexual Offences (POCSO) Act and the Bharatiya Nyaya Sanhita (BNS), any sexual relationship with a person below 18 is treated as statutory rape.
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“This raises a stark dilemma – should entire communities be criminalised for adhering to long-standing personal laws?” the judge asked.
Limits of religious freedom
The court acknowledged that critics of a UCC argue it could erode religious freedoms guaranteed by the Constitution. But Justice Monga stressed that the right to practise religion cannot extend to customs that contradict laws designed to protect children.
“A pragmatic middle path could be to standardise core protections, such as prohibiting child marriages across the board with penal consequences,” the order suggested, while allowing less contentious personal practices to evolve within communities.
The court also heard arguments from legal experts, among them Prof Faizan Mustafa, Vice-Chancellor of Chanakya National Law University, as well as scholars from Jamia Millia Islamia and Woxsen University.
Justice Monga’s remarks were made in the wider context of Article 44 of the Constitution, which urges the State to work towards a Uniform Civil Code – an issue that has remained contentious and debated for decades.
