The Kerala High Court has held that marriage between a Muslim man and a Muslim minor girl under their personal law is not excluded from the Protection of Children from Sexual Offences (POCSO) Act.
The court added that if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under POCSO Act would apply.
The court made the ruling while dismissing a bail petition filed by a Mulsim youth from Bengal who was arrested by the Thiruvalla police. The alleged rape of the 16-year-old girl by the man came to light after the Family Health Centre, Kaviyoor informed the police when the man brought her there for a pregnancy checkup in August.
The prosecution alleged that he had abducted the minor victim from West Bengal, and committed sexual assaults on her. The man claimed that he had married her in accordance with Mahomedan law on March 14, 2021. He contended that since Mahomedan law permits marriage of girls below 18 years, such marriages were legally valid. Therefore, he could not be prosecuted for the offence of rape or those under the POCSO Act.
The court observed that the legislative intent reflected through the POCSO Act was to prohibit physical relationships with a child, even under the cover of marriage. Besides, 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 were both laws. Section 42A intends to override such laws too.
The court added that the POCSO Act was a special statute enacted specifically for the protection of children from sexual offences. Sexual exploitation of every nature against a child was treated as an offence. Marriage was not excluded from the sweep of the statute.