Polygamy, child marriage and the option of puberty - Family Law II - Mohammedan Law

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1. Polygamy under Muslim law
2. Limits imposed by the State
3. Child marriage: personal law and the 2006 Act
4. Option of puberty (khyar-ul-bulugh)
5. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Three topics, one theme. Each is a point where classical Muslim law and the modern State pull in different directions. For each, state the personal law rule first, then the statute or case that limits it, then what is still undecided. On child marriage in particular, say clearly what the Supreme Court has and has not decided.

1. Polygamy under Muslim law

A Muslim man may have up to four wives at a time. The rule comes from the Quran (Sura 4, verse 3), which permits marriage with two, three or four women but adds that if a man fears he cannot deal justly between them he should marry only one. A later verse (4:129) says men will never be able to deal equally between wives. Many modern writers read the two verses together as discouraging polygamy.

A fifth marriage while four wives subsist is irregular in Sunni law (the defect is cured if one of the four dies or is divorced) and void in Shia law.
A Muslim woman may have only one husband. A second marriage during the subsistence of the first is void, and she commits bigamy under section 82 of the Bharatiya Nyaya Sanhita, 2023.
The wife may stipulate in the marriage contract that the husband will not take a second wife, and that on breach she may divorce herself (delegated talaq). Such stipulations are valid.

2. Limits imposed by the State

Dissolution of Muslim Marriages Act, 1939, section 2(viii)(f). A wife may obtain divorce if the husband, having more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.
Maintenance. Under section 144 BNSS (old section 125 CrPC), if the husband has contracted marriage with another woman, that is a just ground for the wife to refuse to live with him while still claiming maintenance.
Special Marriage Act, 1954. Muslims who marry under it are bound by monogamy, and a second marriage is bigamy (section 44).
Service rules. In Khursheed Ahmad Khan v. State of U.P., 2015 INSC 101, (2015) 8 SCC 439, the Supreme Court upheld a conduct rule forbidding a government servant to marry again without permission while a spouse is living, and the removal of a Muslim employee who did so. Polygamy is permitted, not mandated, so its regulation does not offend Article 25.
Public interest. In Javed v. State of Haryana, 2003 INSC 342, (2003) 8 SCC 369, upholding a two-child disqualification for panchayat office, the Court observed that Muslim law permits but does not enjoin marrying four women, and that what is permitted is not an essential religious practice protected by Article 25.
Uniform Civil Code, Uttarakhand, 2024. It prohibits a marriage while either party has a living spouse, for all residents to whom it applies (Scheduled Tribes are excluded), so Muslims in Uttarakhand can no longer contract a valid polygamous marriage.
Pending challenge. Petitions challenging polygamy and nikah halala under Articles 14, 15 and 21 were referred to a Constitution Bench in 2018. No judgment has been delivered on them.

3. Child marriage: personal law and the 2006 Act

Under classical Muslim law a minor may be validly married by a guardian, and a person who has attained puberty (presumed at fifteen) may marry on his or her own. The Prohibition of Child Marriage Act, 2006 is a general law that applies to all communities:

a child is a male under 21 or a female under 18 (section 2(a));
a child marriage is voidable at the option of the party who was a child, by petition to the district court within two years of attaining majority (section 3);
it is void where the minor was taken by force, enticed, sold or trafficked (section 12), or where it was solemnised in breach of an injunction (section 14);
an adult male who marries a child, and anyone who performs, conducts or promotes a child marriage, is punishable with rigorous imprisonment up to two years and fine up to one lakh rupees (sections 9 to 11; under section 9 the court may impose either or both). Offences under the Act are cognizable and non-bailable (section 15).

The conflict: some High Courts have held that a Muslim girl who has attained puberty can validly marry under personal law even if under eighteen (the Punjab and Haryana High Court in 2022, in a protection petition by a 16-year-old girl and her husband); others, such as the Kerala High Court in 2022, have held that the Protection of Children from Sexual Offences Act, 2012 applies to such a marriage regardless of personal law.

What the Supreme Court has said:

Independent Thought v. Union of India, 2017 INSC 1030, (2017) 10 SCC 800: sexual intercourse with a wife under eighteen is rape. The marital exception was read down to that extent, and section 63 BNS now excepts only a wife “not being under eighteen years of age”. The ruling is not limited to any religion.
Society for Enlightenment and Voluntary Action v. Union of India, 2024 INSC 790 (18 October 2024): guidelines for enforcing the 2006 Act. The Court did not decide whether the Act overrides personal law.
On 19 August 2025 the Court dismissed the National Commission for Protection of Child Rights' appeals against the Punjab and Haryana High Court decisions, on the ground that the Commission had no standing to bring them, and said the legal question could be raised in an appropriate case. It did not approve the High Court view on the merits.

Trap. Do not write that the Supreme Court has held that a Muslim girl may marry at puberty, or that it has held the 2006 Act overrides Muslim personal law. Neither has been decided. The safe statement, as of November 2026: the 2006 Act and the POCSO Act apply to all communities by their terms; High Courts are divided on the effect on a puberty marriage; the Supreme Court has left the question open; and Independent Thought makes intercourse with a wife under eighteen an offence whatever the personal law.

4. Option of puberty (khyar-ul-bulugh)

A minor married by a guardian has the right, on attaining puberty, to repudiate the marriage. Under classical Hanafi law the right was limited: a marriage arranged by the father or grandfather could not be repudiated unless the guardian had acted negligently or fraudulently, and the repudiation had to be confirmed by a court. The husband also had the option on attaining puberty.

Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 gives a wife a ground for divorce if she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided the marriage has not been consummated. The conditions are:

the marriage was arranged by any guardian, including the father: the old distinction is gone;
she was under fifteen at the marriage;
she repudiated it after fifteen and before eighteen; and
the marriage was not consummated. High Courts have read this to mean consummation with her consent after puberty; consummation while she was a minor does not defeat the option.

She then sues for a decree; the repudiation by itself does not end the marriage. The right is now also supported by section 3 of the 2006 Act, which lets a girl married under eighteen avoid the marriage within two years of majority.

5. Problem

Ayesha's father married her to Imran when she was fourteen. The marriage was not consummated. At sixteen she tells her family she will not live with Imran. At nineteen she files a suit for dissolution. Advise her.

Issue. Whether she may exercise the option of puberty, and whether the 2006 Act helps her.

Law. Section 2(vii) of the 1939 Act; section 3 of the 2006 Act.

Application. She was married by her father before fifteen, repudiated before eighteen, and the marriage was not consummated. All conditions of section 2(vii) are met; the suit need not be filed before eighteen, only the repudiation. Independently, she was a child when married, so the marriage is voidable at her option under section 3 of the 2006 Act, and at nineteen she is within two years of majority.

Conclusion. She is entitled to a decree of dissolution under section 2(vii), or a decree of nullity under section 3 of the 2006 Act. Her father and those who solemnised the marriage are liable under the 2006 Act.

How this is examined

Short notes on “option of puberty” and “polygamy under Muslim law” are common; child marriage is usually a part of the essentials-of-marriage answer or a problem like the one above. For polygamy give the Quranic text, the Sunni and Shia position on a fifth wife, the 1939 Act, Khursheed Ahmad Khan and the Uttarakhand Code. For child marriage, set out the 2006 Act, then the conflict, ending with the exact position of the Supreme Court.