Muslim Marriages Under Personal Law Are Not Excluded From POCSO Act, Says Kerala HC

The high court was hearing a bail plea filed by a West Bengal native, Khaledur Rahman, who claimed that the girl was his wife whom he married on March 14, 2021 as per Mohammedan law.

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Muslim marriages under personal law are not excluded from the POCSO Act and sexual intercourse with a child, even if it is under the guise of marriage, is an offence, the Kerala High Court has said.

The court denied bail to a 31-year-old man charged under the Act for allegedly abducting and impregnating a 15-year old minor girl whom he claims he had married.

Justice Bechu Kurian Thomas, in his order dismissing the bail, said child marriage is a bane of the society and the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage.

"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," Justice Thomas said in an order issued on November 18.

The high court was hearing a bail plea filed by a West Bengal native, Khaledur Rahman, who claimed that the girl was his wife whom he married on March 14, 2021 as per Mohammedan law. He claimed that he cannot be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act as Mohammedan law permits marriage of girls below 18 years.

The matter came to light after a Family Health Centre at Kaviyoor in Pathanamthitta district informed the police when the victim had gone there for an injection for her pregnancy. On noticing the victim's age as 16 from her Aadhaar Card, the Medical Officer informed the police on August 31, 2022.

"Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statute," the court said.

The court noted that the advances and progress achieved in societal thinking have resulted in the enactment of the POCSO Act.

"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 relationships with a child, even under the cover of marriage. This is the intent of society, too, for a statute is, as is often said, the expression or reflection of the will of the people," the court said.

It observed that when the provisions of a statute are repugnant to, or contrary to the customary law or personal law, in the absence of any specific exclusion of the said customary or personal law from the statutory provisions, the statute will prevail, and the personal law or the customary law shall stand abrogated.

The court noted that as per the prosecution, she was brought to Kerala from West Bengal, allegedly behind the back of her parents. 

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