POCSO Act Prevails Over Muslim Law: Punjab & Haryana High Court Denies Pre-Arrest Bail To Man Accused Of Kidnapping Minor Wife

Rejecting the contention that the man had married under the Muslim Personal Law, the Punjab & Haryana High Court has denied anticipatory bail for allegedly kidnapping his minor wife.

Justice Harpreet Kaur Jeewan said, "Protection of Children from the Sexual Offence Act, 2012, has been enacted which is a self contained comprehensive legislation inter alia to provide for protection of children from offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process."

A child has been defined as any person below the age of 18 years, as per sub-section (d) of Section 2 of the Act of 2012. Apart from this, Section 42-A of the Act of 2012 provides that the provisions of this Act shall have an overriding effect on the provisions of any such law to the extent of inconsistency, the Court added.

The Court was hearing anticipatory plea of a Muslim man, booked under Sections 363 and 366-A of the IPC for allegedly kidnapping a 15-year-old girl whom he had married in 2023.

However, the girl had stated before the magistrate that she didn't want to go with her parents. Considering she was a minor, the girl was sent to a Children's Home.

To buttress the contention that a minor Muslim girl is competent to enter into a contract of marriage with the person of her choice as per Muslim personal law, the petitioner relied upon the High Court's decision in Javed v. State of Haryana and Others [2022 LiveLaw (PH) 276].

After examining the submissions, the Court noted that the Supreme Court in NCPCR v. Javed & Ors. had said that the judgment of in the case Javed (supra), which held that a Muslim girl aged 15 years can enter into a legal and valid marriage as per personal law, should not be relied upon as a precedent in any other case.

"In view of this order (NCPCR v. Javed & Ors) by the Hon'ble Court, the ratio in the Javed's case cannot be applied in the present case," it added.

In light of the above, the Court said, "I am of the considered opinion that prima facie the victim is minor and the contentions of the petitioner that she is major is a matter of inquiry by the Special Court."

Consequently, No special ground is made out to grant the petitioner a discretionary relief under Section 438 CrPC, the Court opined.

Mohd Salim, Advocate, for the petitioner.

Himani Arora, A.A.G., Punjab.

Bikramjeet Singh Baath, Advocate, for the complainant.

Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 122