MP High Court Refuses Bail To POCSO Accused, Says He Can't Seek Benefit Merely Because Victim's Religion Permits Marriage After Puberty

The Applicant had relied on several judgments where the Courts took a lenient view towards Muslim men married to minor Muslim women who had hit the age of puberty. The Court however pointed that those cases involved married parties whereas in the instant case "the situation is otherwise as the applicant has given (false) promise to marry with the prosecutrix".

It observed, "the cases relied by the applicant will not help him because he did not get married with prosecutrix, therefore, benefit of age of puberty cannot be given to him."

The Applicant as well as the Prosecutrix herein are Muslims by religion. The Applicant was accused of offences punishable under Sections 366Ka, 376, 376(2)(N) IPC and under Sections 3/4, 5/6 of POCSO Act. As per Prosecution, he developed physical relations with the 16-year-old Prosecutrix on promise of marriage. However, she was not privy to the fact that the Applicant was already married. The Applicant was eventually arrested and later, he moved an application before the Court for grant of bail.

The Applicant submitted that the physical relations were consensual and he cited various High Court decisions to argue that under Muslim law, consent given by Prosecutrix, though minor but having hit the age of puberty, is not invalid. He further argued that in such circumstances, if a person is tried under the provisions of the POCSO Act, he can be considered to be granted bail. Strong reliance was placed on Karnataka High Court's decision in Mohammad Waseem Ahmad v. State where the POCSO case registered against a Muslim man for impregnating his minor wife was quashed.

Per contra, the State argued that the case laws cited by the Applicant are not applicable to his case as the parties were not married. It was further submitted that the Applicant had kept the Prosecutrix in the dark about his marital status. It was also pointed out that the issue as to whether a girl attaining age of majority as per puberty after 15 years of age would be governed by the provisions of the POCSO Act or not, is pending before the Apex Court.

The Court found merit in the arguments put forth by the State. It noted that case laws cited by the Applicant were of no help to him as he was not married to the Prosecutrix. Further, the Court rejected the argument of the Applicant regarding consent of the Prosecutrix, holding that her consent was invalid-

Considering the submissions made by the counsel for the parties, perusal of record and the after going through the judgment cited above, prima facie I am of the opinion that the cases on which counsel for the applicant is relying upon are not applicable in the present facts and circumstances. Here in this case, the applicant has given promise of marriage to the prosecutrix who was aged about 16 years without disclosing the fact that he is already married and also developed physical relation with her. From the statement of prosecutrix, it is clear that she had gone with the applicant as per her own desire but it does not mean that her consent for developing physical relation was a valid consent. In the cases on which reliance has been placed by the counsel for the applicant, the prosecutrix entered into marriage though she was minor and developed physical relation, in such circumstances that was not considered to be invalid.

With the aforesaid observations, the Court found the case to be not fit for bail and accordingly, the application was rejected.