Personal Law Will Not Override POCSO Act, Child Marriage Restraint Act : Karnataka High Court

A single bench of Justice K Natarajan, while dismissing the bail application filed by accused RAHUL @ NAYAZ PASHA, said "Merely because the parties are Mohammedan that does not mean that the petitioner-accused No.1 has right to marry a minor girl by enticing and abducting her. The consent or will of the victim minor girl is immaterial and even if she has voluntarily went with the accused, that amounts to abduction or kidnapping under Section 363 of IPC. The accused not only abducted the victim minor girl aged about 15 years, he got married to her which attracts Sections 9 and 10 of the Child Marriage Restraint Act. Apart from that, he has sexually assaulted her which also attracts Sections 4 and 6 of POCSO Act."

The court also turned down the no-objection given for bail to be granted to the accused by the victim. The court opined "The age of the victim being 15 years, her capacity of understanding cannot be on par with an adult person who has completed 18 years. Therefore, even otherwise, if she has given consent for abduction or marriage or sexual intercourse, her consent is immaterial as she was minor."

Further, the court noted the respondent No.2, the complainant who appeared through an advocate and produced the affidavit of the victim stating that the victim herself went along with the accused and got married and she is residing in the house of the petitioner-accused.

The court said "That cannot be taken as her consent for granting bail. Even if the victim stated 'no objection', but as she is a minor girl, it cannot be considered as a valid 'no objection' as it is against the law."

Further the court observed "The victim has made her statement under Section 164 of Cr.P.C,she has categorically stated they threatened her to marry the accused and taken her to his first wife's house (accused No.2's house) and there the accused had sexual intercourse. Section 164 of Cr.P.C. is foremost important for considering the bail petition of the accused. Even if the minor girl gives 'no objection' to release the accused in an heinous crime like rape on a minor girl and granting bail to the accused is nothing but giving license to the offender to commit similar offences which would dilute the Special Act enacted by the Parliament for protecting the children from sexual offences and also deviating the provisions of Sections 9 and 10 of Child Marriage Restraint Act."

The court added "Apart from the provisions of Section 375 of IPC, it will send a wrong message to the Society. Therefore, in the interest of the public at large and with an intention to curtail such types of sexual offences, the Court shall ignore the consent of a minor girl giving 'no objection' for granting bail to the accused and the Court should deal with such an heinous offence with an iron hand."

Case Background:

As per prosecution, the mother of the victim filed a complaint on 05.10.2020 alleging that her daughter, the victim girl, aged about 15 years was abducted by petitioner-accused. It was alleged that on 27.09.2020 at about 11.00 p.m., her daughter was sitting by holding the mobile phone. Thereafter from 28.09.2020, she was missing from the house. On 03.10.2020, at about 2.00 p.mThe victim girl came back by weeping. When she enquired her, the victim informed her mother that on 27.09.2020, when she was sitting with her mobile phone, the petitioner forcibly abducted her by gagging her with napkin and took her to his relative's house, kept her for three days and not allowed her to talk with anybody.

Later, in the night hours, the petitioner took her to a lonely place and obtained her signature. Thereafter, on 01.10.2020, at about 12.00 p.m., the wife of the accused took the victim and left her in a house where the petitioner is said to have sexually assaulted her. On 03.10.2020, at about 5.00 p.m., the victim escaped from the custody of the petitioner.

After registering the case, the Police arrested the petitioner under Sections 363, 342, 114, 506, 376 read with Section 34 of IPC, Sections 4, 6, 17, 18 of the Protection of Children from Sexual Offences Act and Sections 9 and 10 of the Child Marriage Restraint Act. The sessions court rejected the bail application filed by the accused following which he approached the high court.