Judgment No. CCZ 12/2015 25
Const. Application No. 79/14
The interests of the girl children subjected to early marriages were properly
identified as a public interest to be protected by the relief sought in the proceedings.
Section 85(1)(d) of the Constitution underlines the principle that courts play a vital role in the
provision of access to justice and protection of children. These are matters of public interest.
A nation which is not concerned with the welfare of children cannot look forward to a bright
future. Murina & Ors v State of Uttar Pradesh & Ors (1982) 1SCC 545.
MERITS
The respondents’ case on the merits is that s 78(1) of the Constitution does not
set the age of eighteen years as the minimum legal age of marriage. They argued that s 78(1)
of the Constitution gives a person who has attained the age of eighteen the “right to found a
family”. The subsection does not in express terms give the person concerned the “right to
marry”. According to the respondents, s 22(1) of the Marriage Act or any law which authorises
a girl child who has attained the age of sixteen to marry is not inconsistent with s 78(1) of the
Constitution.
The applicants took issue with the literal interpretation of s 78(1) of the
Constitution by the respondents. They contend that the meaning of s 78(1) of the Constitution
can only be determined on the basis of a broad, generous and purposive interpretation of its
provisions.
INTERNATIONAL CONVENTIONS AND TREATIES
Context of Section 78(1) of the Constitution and Section 22(1) of the Marriage Act
The court is faced with the question of interpretation of s 78(1) as read with
s 81(1) of the Constitution. It is also faced with the question of interpretation of s 22(1) of the
Marriage Act and the effect of the application of s 78(1) of the Constitution on its meaning.
Select target paragraph3
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