Aboneka Micheal & Kirya Martins v Attorney General (Consitutional Petition 35 of 2021)

Constitutional Court · [2023] UGCC 112 · 2023 Petition Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137 challenging the constitutionality of statutory provisions on the minimum age for marriage

Decision

Petition allowed; impugned statutory provisions declared null and void to the extent that they permit marriage of persons below 18 years

The full judgment

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Holding

The Court held that provisions of the Customary Marriage (Registration) Act, the Marriage and Divorce of Mohammedans Act and the Hindu Marriage and Divorce Act permitting girls aged 16 to 17 to marry are inconsistent with Article 31(1) of the Constitution, which entitles persons to marry only if each is 18 years or older. Rejecting the respondent's objection, the Court held that Article 274 (requiring existing law to be construed into conformity with the Constitution) does not oust the Constitutional Court's jurisdiction under Article 137(3) to declare existing law unconstitutional. The impugned provisions were declared null and void to the extent of their inconsistency and must be construed as permitting marriage only where both parties are 18 or older.

Facts

The petitioners brought a public-interest petition challenging the constitutionality of statutory provisions governing the minimum age for marriage. Section 11(a) of the Customary Marriage (Registration) Act permits a customary marriage of a girl who has attained 16 years, while requiring the man to be 18. The Hindu Marriage and Divorce Act similarly permits marriage of a bride aged 16 to 17 with guardian consent, and provides for guardians (including a court-appointed guardian) to consent on a minor bride's behalf. The Marriage and Divorce of Mohammedans Act lays out modalities for registering marriages involving minors. The petitioners contended these provisions permit child marriage and discriminate between men and women, contrary to Articles 2, 21, 31 and 33 of the Constitution. The respondent admitted the inconsistency with Article 31(1) but argued the provisions were existing law to be cured under Article 274 rather than struck down by petition.

Issues

Whether the impugned provisions of the Customary Marriage (Registration) Act, the Marriage and Divorce of Mohammedans Act and the Hindu Marriage and Divorce Act are in contravention of or inconsistent with the cited provisions of the 1995 Constitution.
Whether the petitioners are entitled to the remedies sought.
Whether existing law that falls within the operation of Article 274 may be challenged by way of a constitutional petition under Article 137.

Orders

Section 11(a) of the Customary Marriage (Registration) Act, Cap. 248; Section 5(1)(a) of the Marriage and Divorce of Mohammedans Act, Cap. 252 (to the extent that it permits registration of marriages involving persons below 18 years); and Sections 2(1)(c) and (d) and 3 of the Hindu Marriage and Divorce Act, Cap. 250 are declared inconsistent with Article 31(1) of the 1995 Constitution.
The impugned provisions are declared null and void, Section 5(1)(a) of the Marriage and Divorce of Mohammedans Act being void only to the extent stated.
The impugned provisions are to be construed as permitting marriage only where the man and woman are 18 years or older.
No order as to costs, the petition having been brought in the public interest.

Key headnotes

Constitutional Law — Existing Law — Article 274 — Jurisdiction of the Constitutional Court under Article 137(3)

Article 274, which requires existing law to be construed with such modifications as are necessary to bring it into conformity with the Constitution, does not oust the Constitutional Court's jurisdiction under Article 137(3) to declare existing law inconsistent with the Constitution and null and void; a person may therefore challenge provisions of existing law by way of constitutional petition.

Family Law — Marriage — Minimum Age of Marriage — Article 31(1)

Statutory provisions permitting a girl between 16 and 17 years of age to marry are inconsistent with Article 31(1) of the Constitution, which entitles a man and a woman to marry only if each is of the age of eighteen years and above.

Family Law — Marriage — Guardian Consent for a Minor Bride

Statutory provisions allowing a guardian, or a court-appointed guardian, to give consent to the marriage of a bride below 18 years are inconsistent with the Constitution, since only persons aged 18 or above may lawfully marry.

Family Law — Marriage as a Contract — Free Consent — Capacity

Marriage is a contract requiring the free consent of the parties under Article 31(3); since the age of contractual capacity is eighteen years, only a person aged 18 or above can give the consent necessary for a valid marriage, and no third party may supply that consent on a party's behalf.

Legislation cited (19)

Constitution of Uganda 1995 art.2
Constitution of Uganda 1995 art.21
Constitution of Uganda 1995 art.31(1)
Constitution of Uganda 1995 art.31(3)
Constitution of Uganda 1995 art.33
Constitution of Uganda 1995 art.34
Constitution of Uganda 1995 art.126
Constitution of Uganda 1995 art.137
Constitution of Uganda 1995 art.274
Customary Marriage (Registration) Act, Cap. 248 s.11(a)
Customary Marriage (Registration) Act, Cap. 248 s.11(b)
Marriage and Divorce of Mohammedans Act, Cap. 252 s.3
Marriage and Divorce of Mohammedans Act, Cap. 252 s.4
Marriage and Divorce of Mohammedans Act, Cap. 252 s.5(1)(a)
Hindu Marriage and Divorce Act, Cap. 250 s.2(1)(c)
Hindu Marriage and Divorce Act, Cap. 250 s.2(1)(d)
Hindu Marriage and Divorce Act, Cap. 250 s.3
Contract Act s.11
Government Proceedings Act s.15(1)(b)

Cases cited (2)

Uganda Association of Women Lawyers and 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
Osotraco Ltd v Attorney General (High Court Civil Suit No. 1380 of 1986)

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