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In the Backwaters of Time
Seeking exemption of Muslims from the Sarda Act
By Tahir Mahmood

In a recent editorial a national English daily has denounced as “a cold blast from the past” the reported move of the All India Muslim Personal Law Board to seek exemption of Muslims from the application of the Child Marriage Restraint Act 1929 [popularly known as the Sarda Act after its chief architect Harbilas Sarda, a member of the Central Legislative Council in 1920s]. “No good can come out of it for the millions of Muslim girls below the age of consent Instead of calling on the State and society to raise their status by ensuring decent education and health care the Board sees nothing wrong in seeing little girls becoming wives and mothers at the first biological opportunity”, laments the editorial. It is worthwhile to see if it was in any way imperative or desirable for the Board to have earned this reprimand from a concerned media. 

First a few words about the Act. Far back in 1920s Mahatma Gandhi was stunned to learn from the Census Report of 1921 that there were over 600 brides in India in the age group of one to twelve months (yes! months, not years). Of course it was not a “minority problem”; these unfortunate “brides” belonged to the majority community. The noble soul of the man destined to become Father of the Nation was stirred and he began what he called the “Vidhwa Kunwari” movement, meant to awaken the people to the need of renouncing the archaic custom of tying wedding knots on children of tender age. His efforts led to the introduction of a bill by his associate Harbilas Sarda in the central legislature, aimed at imposing penal sanctions against those who pushed female and male infants into marital bondage. Amidst stiff opposition on religious grounds by all sections of the people, the bill eventually became the Child Marriage Restraint Act 1929 – a penal law made applicable equally to all Indians. It fixed a minimum age for the marriage of girls and boys but, notably, only laid down penalties – short-term imprisonment and/or fine – for those responsible for its violation, leaving wholly unaffected the legal validity of marriages hit by its provisions. The Act was amended in later years to further raise the statutory age of marriage – the last time on the Mahatma’s birthday in 1978 – and its present requirements are completion of 18 years of age for girls and of 21 years for boys to be eligible for marriage without attracting application of its penal provisions. The legal validity of any minor’s marriage continues to be wholly beyond its scope.

Among the opponents of the bill in 1929 Hindu clerics were of course dominant, but the Muslims had not lagged behind -- although the practice was not as common among them as among their Hindu brethren in nationality. It was claimed that the bill violated the Shariat law which allowed marriage of young girls and boys by their own free action on attaining bulugh (puberty), and by the action of their guardians even earlier. ‘Puberty” is a biological condition presumed to come about for all not later than the completion of age 15, but the possibility of the same at an earlier age [ not below 9 years for girls and 12 years for boys] is not ruled out. The law-makers of the day dismissed all opposition to the bill, by the Hindus and the Muslims, and it became law in 1929. No serious voices against this social reform were heard when the Act was last amended in 1978. Notably, the lowest permissible age of marriage then laid down under this Act was incorporated by simultaneous amendments into all the family-law statutes as well – the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936, the Special Marriage Act 1954 and the Hindu Marriage Act 1955. 

How about the Muslim personal law ? Had there been a Muslim Marriage Act in India it would have surely shared the reform of 1978. There was none; and no one would dare touch the uncodified Muslim law. Penal provisions of the Sarda Act as amended would, of course, apply to all Muslims as well – leaving, as before, the legal validity of a Muslim minor’s marriage to be still governed by the rules of the Shariat. 

In Muslim law proper on attaining puberty a marriage may be only permissible; it is not mandatory by any interpretation. The Holy Qur’an did not prescribe any fixed age for puberty or marriage; nor did the Prophet by any binding injunction The supposedly lowest age of puberty for girls (9 years) was based on some precedents of 7th century Arabia said to have been accepted by Imam Abu Hanifa a hundred years later. Two other jurists of Abu Hanifa’s time, Qazi Ibn Shubruma and Abu Bakr al-Asam, had however disapproved minor girls’ marriage, relying on some indications in the Qur’an. While the great Imam’s viewpoint prevailed among his followers till recent times, taking advantage of the opinion of his two contemporaries many Muslim countries have now raised by legislation the lowest permissible age of marriage for both girls and boys. The first state law for this purpose was enacted in Egypt in 1923. Many other Muslim countries followed suit one after the other. The lowest permissible age of marriage for girls is now 18 in Algeria, Bangladesh and Somalia, 17 in Lebanon, Syria and Tunisia,16 in Egypt, Indonesia, Malaysia, Pakistan and Yemen and 15 in those other Muslim countries where family law has been codified. The actual working of these newly enacted marriage-age laws, of course, tells a different story. Nowhere in the Muslim world has the practice of minor’s marriage been wholly abandoned.

The situation in India is no different. Here too the law in restraint of child marriage has always been and remains a paper tiger having no teeth to bite. The Sarda Act and its provisions shared by other statutory family laws have failed to eradicate the menace of child marriage from the Indian society. Whatever improvement one sees in this respect – surely the percentage of child marriages is now considerably lower than in 1929 – is the result of educational advancement; it has not come about by virtue of the Sarda Act or any other parallel law. To block a girl’s marriage by making a criminal complaint on account of her age is something that goes against the social ethos of the country – especially in rural India. In many parts of the country and among many communities child marriage therefore remains as much a routine as child labour.

The presumptions that the Sarda Act successfully prevents child marriages and that exemption from its provisions, if at all granted to the Muslims, will boost up the percentage of such marriages among them – seemingly underlying the scathing critique of the Muslim Personal Board’s move under comment -- are both baseless. But does the Muslim Personal Board really have a serious issue to fight for ? In view of the facts that the old Arab practice of child marriage was not of Islam’s creation, that some great Muslim jurists of the past disapproved it on the authority of the Qur’an, that the law in many contemporary Muslim countries does not allow it and, above all, that while the 73-year old anti-child marriage law of India does not at all affect the legal validity of any marriage even its penal provisions are seldom enforced, the Board’s belated concern in this regard seems to be ‘much ado about nothing’. It may have, perhaps, been pushed into voicing this new-found concern by the wishful thinking of some misinformed lawyers who have been claiming ad nauseum that the Sarda Act does not apply to Muslims. They are certainly wrong; it does and must.

The All India Muslim Personal Law Board is by all means a respectable body of Indian Muslims and its representative character, in the sense that all religious factions and groups of Muslims are part of it, need not be questioned. It is not proper to pass disparaging remarks about an organization that large sections of the Muslims in the country do highly respect. It is however for the Board itself to protect its prestige and reputation by not being misled into purposeless action. 

True that in view of awful communal situation unfortunately prevailing in the country this is not the proper time to preach social reform to the greatly perturbed community. But, then, for the same reason the Board should also exercise due restraint. Carrying on its shoulders a heavy responsibility of properly guiding the community, the Board cannot afford indulging in the game of stirring a hornet’s nest.

Professor Tahir Mahmood is a former chairman, National Commission for Minorities.

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