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.

The 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 child to her full potential. It is the bane of society. The legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage. This is the intent of society, too, for a statute is, as is often said, the expression or reflection of the will of the people".

The Court also said that Section 42A of the POCSO Act categorically stipulates that in the event of any inconsistency with provisions of any other law, the POCSO Act would prevail.

"Personal Laws and customary laws are both laws. Section 42A intends to override such laws also. Therefore it cannot be gainsaid that after the coming into force of the POCSO Act, penetrative sexual intercourse with a child, even if it is under the guise of marriage, is an offence"

The Court refused to accept the argument that the victim had the intellectual ability to give consent and was under no compulsion or any sexual exploitation to attract the POSCO Act.

"In this context, it is appropriate to mention the decision in Sri. Aleem Pasha v. The State of Karnataka (Crl. R.P No. 7295/2022). In the said judgment, the Karnataka High Court granted bail to an accused who had married a 17-year-old Muslim girl and was booked for the offences under the POCSO Act. A reading of the above judgment reveals that the learned Single Judge had observed that the POCSO Act will prevail over the personal law. However, on the facts of the said case, the court felt it appropriate to grant bail, especially considering the age of the victim, which was more than 17 years."

Dismissing the bail plea of the accused, the court said the victim was brought to Kerala from West Bengal and that too allegedly behind the back of her parents.

"This Court cannot be oblivious to the above circumstances. The investigation is also stated to be still continuing. Reckoning the aforesaid circumstances, I am of the view that this is not a fit case where the petitioner can be released on bail at this juncture," it said.

Case Title: Khaledur Rahman v. State of Kerala & Anr. 

Citation: 2022 LiveLaw (Ker) 600

Click Here To Read/Download The Order