Muslim Marriages Not Excluded From POCSO Act, Physical Relationship With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Court

The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436)."With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.Muslim Marriages Not Excluded From POCSO Act, Physical Relationship With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Courthttps://t.co/o3s4BQLVpS pic.twitter.com/6m6uyf80VB— Live Law (@LiveLawIndia) November 20, 2022The court made the observations in its order on the bail application moved by a 31-year-old Muslim man who is accused of kidnapping and raping a minor. His claim was that he had validly married the girl in March 2021 under the personal laws applicable to them. The accused was earlier booked under sections 366, 376(2) (m) and 376(3) of the Indian Penal Code and under sections 5(j)((ii), 5(i) and section 6 of the Protection of Children from Sexual Offences Act, 2012 by Thiruvalla Police Station. The allegation against him is that he had abducted the minor, who is a native of West Bengal and "committed repeated penetrative sexual assaults during the period before 31.08.2022, due to which the victim became pregnant and thereby, the accused committed the offences alleged." The FIR was registered on the intimation received from a doctor of a health centre where the victim had gone for a checkup on her pregnancy.The counsel representing the accused in bail proceedings argued that since Mohammedan law permits marriage of girls below 18 years and such marriages being legally valid, he cannot even be prosecuted for the offence of rape or those under the POCSO Act. The State argued that POCSO Act will prevail over the Mohammedan law.Justice Thomas said that the The Muslim Personal Law (Shariat) Application Act, 1937, statutorily recognizes that in all questions relating to marriage, the rule of decision shall be the Muslim Personal Law (Shariat)."However, after the coming into force of the Prohibition of Child Marriage Act, 2006, it is questionable whether the said personal law will prevail over the special statute relating to marriages. Under section 3 of the said Act, a child marriage shall be voidable at the option of the contracting party, who is a child. But section 12 makes a child marriage void in certain circumstances," said the bench.The court said the investigating officer in the case has alleged that the victim was enticed by the accused without the knowledge of her parents and the age of the victim being only just above 14 years at the time of the alleged marriage, the existence of a valid marriage, even according to Muslim Personal Law, is debatable. "However, the petitioner is arrested for the offences under the POCSO Act as well as the IPC. The POCSO Act is a special statute enacted specifically for the protection of children from sexual offences. Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statute," ruled the court.It further said it is trite law that when the provisions of a statute are repugnant to, or contrary to the customary law or personal law, in the absence of any specific exclusion of the said customary or personal law from the statutory provisions, the statute will prevail, and the personal law or the customary law shall stand abrogated to the extent of the inconsistency."On an appreciation of the above principles, it can prima facie be held, for the purpose of this bail application, that the very marriage allegedly entered into between the petitioner and the victim cannot be relied upon as a legally valid marriage," said the court.Remarking on the characteristics of the POCSO Act, the Court said:"POCSO Act is a special enactment. The advances and progress achieved in societal thinking have resulted in the enactment. This special statute was enacted based on principles arising out of jurisprudence relating to child abuse. The child abuse jurisprudence evolved out of the need to protect the vulnerable, the gullible and the innocent child. The legislative intent to protect the child from sexual predators hovering over them under different labels, including that of marriage, is explicitly evident from the statutory provisions. Child marriages have been regarded as a human right violation. A child marriage compromises the growth of the...

Muslim Marriages Not Excluded From POCSO Act, Physical Relationship With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Court

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