18 January 2023

Case in Supreme Court: Can an underage Muslim girl marry after attaining puberty?

GS-2: Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes

The Supreme Court will examine a decision of the Punjab and Haryana High Court that a Muslim girl can marry a person of her choice after reaching puberty. This opens up the issue of regulating the minimum age of marriage for women and its impact on personal law.

Ruling of the Punjab and Haryana HC

• Case: A 26-year-old Muslim man who married a 16-and-a-half-year-old girl moved the High Court seeking custody of his wife. 
• The girl, referred to as the dentenue, stated in a statement under Section 164 of the Code of Criminal Procedure that she had run away from her family's house and married the petitioner of her own will. 
• She also stated that she does not want to stay with her family and wishes to reside with the petitioner. 
• Verdict: The High Court allowed the marriage as per her free will, as under Muslim law a girl can be married after reaching puberty. 
• The court also ruled that a Muslim girl can marry a person of her choice after attaining puberty, unless she is under 18 years old.

The Muslim law on the age of marriage for a woman

• The HC ruling quoted the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, on the capacity for marriage, which states –

1. Capacity for marriage:

• Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.
• Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.
• A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent.

1. Explanation: 

• Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

Implication of HC verdict

• The National Commission for Protection of Child Rights (NCPCR) has approached the Supreme Court against the ruling of the Punjab and Haryana High Court (HC) which allowed a Muslim girl to marry a person of her choice after attaining puberty. 
• The NCPCR, represented by the Solicitor General, has argued that the HC ruling essentially allows child marriage, which is in violation of the Prohibition of Child Marriage Act, 2006. 
• The plea states that the Child Marriage Act is a secular legislation and applies to all religions, overriding their personal law.
• The NCPCR also argues that since the Protection of Children from Sexual Offences Act, 2012 does not recognize consent for sexual activity by minors, marriages on attaining puberty cannot be allowed.

Law on Child Marriage

• The Prohibition of Child Marriage Act, 2006 prohibits marriage below 18 years for women and 21 years for men and considers it illegal. 

1. The perpetrators of a forced child marriage can be punished. 

• However, the law considers such marriages voidable (by a court only) at the option of the minor party. 

Verdict of other courts on similar issue

• The Karnataka High Court in 2013, in the case of Seema Begaum D/O Khasimsab vs State Of Karnataka ruled that "no Indian citizen on the ground of his belonging to a particular religion, can claim immunity from the application of the Prohibition of Child Marriage Act“.
• However, in 2021, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man) and held that theirs was a legal marriage under personal law as the special law does not override personal laws. 

1. This ruling is in contrast to the ruling of the Karnataka High Court. 

Pro-active step taken by the Government of India

• In 2021, the central government also introduced a bill that amends the Prohibition of Child Marriage Act, 2006 to increase the age of marriage for women and ensure harmony in the age limit across religions.

1. The bill was referred to a parliamentary standing committee. 

• Significance: 

1. All women from all faiths, under Hindu Marriage Act or the Muslim Personal Law, should get equal rights to marry. 

• Criticism:

1. The Bill is unconstitutional and violative of Article 25 of the Constitution, which guarantees the freedom of conscience and free profession, practice and propagation of religion.

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Loan loss provision by banks: Why has RBI proposed a new forward-looking approach? 

GS-3: Indian Economy and issues relating to planning, mobilization, of resources, growth, development and employment.

The RBI released a paper on provisioning for loan defaults, proposing an expected loss approach. The current incurred loss method is deemed insufficient, and a shift to expected credit loss is needed to prevent systemic issues. 

Regional rural banks and smaller cooperative banks (based on a threshold to be decided based on comments) are proposed to be kept out of the framework.

Loan-loss provision

• The RBI defines loan loss provision as a reserve set aside by banks for defaulted loans. 
• Banks set aside a portion of expected loan repayments to cover losses. 
• In case of loss, banks use this reserve instead of incurring loss in cash flows. 
• Since not all loans are expected to default, reserves usually cover the loss for one or few loans. 
• Increase in reserves is called loan loss provision, determined to maintain bank safety and soundness.

The expected loss-based approach

• The proposed framework by the RBI requires banks to estimate expected credit losses based on future predictions, rather than waiting for actual losses. 
• Banks will categorize financial assets (loans, irrevocable loan commitments, and held-to-maturity/available-for-sale investments) into one of three stages – Stage 1, Stage 2, or Stage 3, based on assessed credit losses at initial recognition and on subsequent reporting dates, and make necessary provisions.
• Stage-1: Assets have not had a significant increase in credit risk or have low credit risk. 

1. Banks will recognize 12-month expected credit losses and calculate interest revenue on the gross carrying amount of the asset.

• Stage-2: Assets have had a significant increase in credit risk but no objective evidence of impairment.

1. Banks will recognize lifetime expected credit losses, but calculate interest revenue on the gross carrying amount.

• Stage-3: Assets have objective evidence of impairment. 

1. Banks will recognize lifetime expected credit loss, and calculate interest revenue on the net carrying amount.

Benefit of the approach

• The expected credit loss approach enhances the resilience of the banking system by aligning with global norms. 
• It will result in excess provisions, unlike the shortfall seen in the incurred loss approach, according to the RBI.

Challenges

• The incurred loss approach requires banks to provide for losses that have already occurred. 
• The delay in recognizing expected losses under this approach exacerbated the financial crisis of 2007-09. 
• Banks had to make higher provisions, which impacted their capital at a time they needed to shore it up, affecting their resilience and posing systemic risks. 
• Additionally, the delayed recognition of loan losses overstated banks' income and reduced their capital base through dividend payouts, also impacting resilience.

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