Justice Jobin Sebastian held:

“sexual intercourse with a girl below eighteen years of age attracts the offences under the POCSO Act, and in such a situation, whether the child is the wife of the accused or not is of little consequence…Undisputedly, the provisions of the POCSO Act apply if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage under personal law.”

“Even assuming for the sake of argument that a marriage was solemnized as per Muslim religious rites and ceremonies, the same will not salvage the petitioner's criminal liability, particularly since the girl was seventeen years old at the time of the alleged marriage and subsequent sexual acts,” the Court added.

The Court was considering a plea filed by a man seeking to quash the criminal proceedings initiated against him. He is arrayed as the first accused in a crime alleging offences punishable under Sections 366, 376(2)(n) of the Indian Penal Code and Sections 6(1), 5(l) and 15(1) of the POCSO Act.

The allegation was that he kidnapped the victim in a car, took her to his house and committed rape upon her repeatedly for 4 days. The second and third accused are alleged to have facilitated the commission of the said offence. The parents of the victim are accused to have failed to report the offence to the authorities.

The petitioner's stand was that de facto complainant was his legally wedded wife and he married her when she was 17 years and one month old as per Islamic religious rites. He relied on Exception 2 to Section 375 IPC and argued that sexual intercourse with wife not below the aged of 15 years is not rape. The prosecution and the de facto complainant opposed the plea.

After hearing the parties, the Court noted that the allegations, taken at face value, prima facie disclose commission of the offences alleged.

Next, the Court considered the contention that the victim was the petitioner's wife. It noted that the materials relied on by him to prove the marriage were mainly statements given to the police by the de facto complainant, her brother and the Qazi of the mosque where the marriage was allegedly performed. No documentary evidence was produced by him to prove the same, the Court took note. It opined that occurrence of a valid marriage can be determined only after trial.

The Court, however, added that even if a valid Muslim marriage did take place, the petitioner would not be exonerated from criminal liability. It relied on the decision in Khaledur Rahman v. State of Kerala and Anr. and referred to Sections 2(1)(d) and 42A of the POCSO Act.

Section 2(1)(d) defines child to be a person below 18 years. Section 42A provides that the POCSO Act will have overriding effect if its provisions are inconsistent with any other law.

The Court also rejected the argument that the petitioner's case falls within the exception under Section 375 IPC. It relied on the Apex Court decision in Independent Thought v. Union of India and Another [(2017) 10 SCC 800], wherein the exception 2 was read down to provide that “sexual intercourse or sexual acts by a man with his own wife, not being under eighteen years of age, is not rape”.

It thus dismissed the plea.

Case No: Crl.MC No. 8899 of 2024

Case Title: X v. X. and Ors.

Citation: 2026 LiveLaw (Ker) 470

Counsel for the petitioner: Sunny Mathew, Anooj J.

Counsel for the respondents: P. Jayaram, Navas V.A. – Public Prosecutor

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