Disagreeing with the views of the Punjab and Haryana, Delhi, and Karnataka high courts, that an offence under the POCSO Act is not attracted against a Muslim marrying a minor, justice Bechu Kurian Thomas held, “In view of the above discussion, I am of the considered view that marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act. 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 considered a bail application (NCN 2022/KER/64232) filed by 31-year-old Khaledur Rahman of Gazole in West Bengal in a case registered by Thiruvalla police. It was alleged that he abducted a minor from West Bengal when she was 14 years old and committed repeated sexual assaults on her, resulting in her becoming pregnant.
A case was registered on August 31st this year after a doctor at a family health centre alerted police upon noticing that a girl who came to get an injection for her pregnancy was aged only 15 years and 8 months as per the Aadhaar card. Though the accused had contended that they had got married in West Bengal as per Islamic rites on March 14th last year and that she is living with his parents, police informed the court that the girl’s parents are not aware of the marriage nor was any convincing evidence received to confirm the marriage.
In the judgment, delivered on November 18th, the high court said Muslims who have attained puberty are allowed to enter into marriage as per Mohammedan Law (Article 251, Principles of Mahomedan Law by Dinshaw F Mulla) and all questions relating to marriage should be decided as per the Muslim Personal Law (Shariat) as per the Muslim Personal Law (Shariat) Application Act. However, it is questionable whether the personal law will prevail over the Prohibition of Child Marriage Act, 2006, which is a special law, the court said.
As per section 12 of the Prohibition of Child Marriage Act, a child marriage is void in certain circumstances, which includes taking or enticing a minor out of the keeping of the lawful guardian or by force compelled or by any deceitful means induced to go from any place. Police has informed that the minor in the case was enticed by the accused without the knowledge of her parents, the court said while doubting the validity of the marriage.
Under the POCSO Act, sexual exploitation of every nature against a child is treated as an offence, and marriage is not excluded from the sweep of the statute, the court noted. A special law will prevail over the general law, and when the provisions of a statute are repugnant to or contrary to the customary law or personal law, the statute will prevail, in the absence of any specific exclusion of the said customary or personal law from the statutory provisions, the court added.
Regarding child marriage, the court said, “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 relationship with a child, even under the cover of marriage. This is the intent of the society, too, for a statute is, as is often said, the expression or reflection of the will of the people.”
Section 42A of the POCSO Act specifically asserts that the provisions of the Act will prevail in the event of any inconsistency with provisions of any other law, the court said. “Personal laws and customary laws are both laws. Section 42A intends to override such laws also. Therefore it cannot be gainsaid that after 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 held.
The court disagreed with the views of the Punjab and Haryana high court (Javed Vs. State of Haryana, 2022) and the Delhi high court (Fija and Another Vs. State Govt. of NCT of Delhi and Others, 2022) that a Muslim girl is entitled to marry a person of her choice on attaining 15 years of age. The court also did not agree to the Karnataka high court’s decision (in Mohammad Waseem Ahamad Vs. State, 2022) by which the criminal case against the accused who married a 17-year-old girl as per Mohammedan Law was quashed.
“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,” the judgment stated. Ruling that marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act, the court dismissed the bail plea.