Marriage with minor Muslim girl offence under POCSO: Kerala High Court

Kochi: The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the provisions of the POCSO (Protection of Children from Sexual Offences) 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; by Delhi High Court in Fija and Another v State Govt of NCT of Delhi and Others; and by Karnataka High Court in Mohammad Waseem Ahamad v State. "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 various sections of the Indian Penal Code and POCSO by Thiruvalla police.

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 August 31, 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 the 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 The Muslim Personal Law (Shariat) Application Act, 1937, statutorily recognises 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.