"Can't Seek Bail Under The Guise Of Personal Law": Karnataka HC Denies Relief To Man Accused Of Raping Minor Muslim Girl

The Karnataka High Court recently denied bail to a man who allegedly raped a 16-year-old Muslim girl as it noted that even if the girl had consented to a physical relationship, her consent becomes irrelevant as she is a minor.

The bench of Justice Rajendra Badamikar observed thus as it rejected the argument put forth by the counsel for the accused that the age of puberty was required to be taken note of as the parties are Mohammedans. 

Essentially, the counsel for the accused sought to argue that since the girl had attained puberty as per Muslim as she had crossed the age of 15, therefore, she was capable of giving her consent like a major.

However, rejecting this argument, the Court observed that the POSCO Act and the IPC are substantive acts and they prevail over personal law and also, under the guise of personal law, the petitioner/accused cannot seek regular bail.

This order comes days after the same bench of the High Court, while dealing with the bail plea of a man who married a minor Muslim girl, rejected the argument that a minor Muslim girl's marriage upon attaining puberty (15 years of age) will not contravene The Prohibition Of Child Marriage Act, 2006.

Read about the case in detail here: Minor Muslim Girl's Marriage Invalid; POCSO Act Overrides Personal Law : Karnataka High Court

The case in brief

The allegations against the accused are that he enticed away a 16-year-old Muslim girl and committed penetrative sexual assault with her and has been booked under Sections 376(2)(n), 354D, and Sections 6 and 12 of the POCSO Act.

In her 161 CrPC statement, she stated that she had voluntarily accompanied the petitioner and had voluntarily indulged in sexual relationship with him. But in her 164 CrPC statement, she narrated a different story wherein she specifically asserted that she was taken by the present petitioner forcibly and he had committed sexual intercourse with her.

Taking into account the facts of the case, the Court prima facie observed that the consent of the victim was not there and even if the consent is said to be there, since the victim is a minor her consent becomes irrelevant.

"The statement of the victim under Section 164 itself clearly establishes that she was forced to have a sexual relationship and that too after abducting her from the custody of a lawful guardian. Under these circumstances, there is prima-facie material evidence against the present petitioner and the medical evidence further discloses that the hymen was not intact and it establishes that there is a sexual relationship," the Court further added,

With this, noting that mere submission of the charge sheet does not give any right to the present petitioner to claim bail as a matter of right and that there is a possibility of tampering with the prosecution witnesses, the Court denied him bail.

In related news, the Supreme Court is set to examine the question if a minor Muslim girl can marry on attaining puberty as recently it issued notice on the petition filed by the National Commission for the Protection of Child Rights (NCPCR) challenging a recent judgment of the Punjab and Haryana High Court which held that a 16-year-old Muslim girl can enter into a valid marriage.

Case title - Farddin v. State and another

Case Citation: 

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