On November 19, Kerala High Court ruled that a marriage between Muslims under personal law cannot be excluded from the Protection Of Children from Sexual Offences (POCSO) Act. Justice Bechu Kurain Thomas said if one of the partners in the marriage is a minor, offences under POCSO Act will apply. The validity of the marriage would not be considered in such cases.
Notably, Punjab and Haryana High Courts, Delhi High Court and Gujarat High Court had ruled differently from what Kerala High Court ruled. The three state High Courts had favoured personal law above POCSO. However, on October 30, Karnataka High Court ruled POCSO would override personal law.
Justice Thomas said, “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 court was hearing a bail plea moved by a 31-year-old Muslim man accused of kidnapping and raping a minor. He claimed to have gotten married to the minor as per Muslim personal law in March 2021. Thiruvalla Police Station booked the accused under sections 366, 376(2) (m) and 376(3) of the Indian Penal Code and under sections 5(j)((ii), 5(i) and section 6 of the POCSO Act.
The FIR in the matter was registered based on intimation received by a doctor of a health care centre where the victim had gone for a checkup for her pregnancy. The accused allegedly abducted the minor from West Bengal and “committed repeated penetrative sexual assaults during the period before 31.08.2022, due to which the victim became pregnant and thereby, the accused committed the alleged offences.”
The accused’s counsel argued that as Muslim personal law allows the marriage of girls below the age of 18, he cannot be prosecuted for rape of provisions under the POCSO Act. On the contrary, the state argued POCSO Act would override personal law.
Justice Thomas said, though, as per The Muslim Personal Law (Shariat) Application Act, 1937, all questions related to marriage would be divided as per the Muslim Personal Law (Shariat) after the Prohibition of Child Marriage Act, 2006 came to force, “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.”
The court noted that the investigation officer alleged the accused enticed the victim without the knowledge of her parents. At that time, the victim was only just over 14 years. The validity of the marriage was also put under scanner by the court.
The court ruled, “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.”
The court further added that Section 42A of the POCSO act categorically says that if there are inconsistencies with provisions of any other law, the POCSO Act will override other laws.
Multiple courts stated that Muslim girls could marry at the age of 15
The Kerala High Court’s judgement saying POCSO oversides Personal Law is significant because, in the past, several High Courts have ruled that marriage of Muslim girls above 15 years of age or those who have attained puberty is legal as per Muslim Personal Law, which is based on Sharia Law.
In a recent judgement, the Punjab and Haryana High Court said that a Muslim female aged 15 years and above can legally marry a person of her choice with her own consent and willingness. On October 28, Punjab and Haryana Court reaffirmed that a Muslim girl who reaches the age of 15 can marry whoever she wants, and such a marriage would not violate the Prohibition of Child Marriage (PCM) Act. Notably, according to the personal laws in Islam (Sharia), the age of attaining puberty is 15.
The High Court also reassured that Muslim girls will continue to be governed by Islamic personal laws. The Court had added that such a marriage would not contradict the terms of Section 12 of the Prohibition of Child Marriage Act 2006.
However, the Supreme Court will be examining the matter on the petition filed by the National Commission for the Protection of Child Rights (NCPCR), challenging the said judgement.
In June 2012, Delhi High Court had said in a judgment that a Muslim girl could marry a person of her choice at the age of 15 if she had attained puberty.
In December 2014, Gujarat High Court said that the marriageable age of Muslim girls was 15 years and above.
In December 2021, Punjab and Haryana Court had asked the authorities to provide protection to a 17-year-old girl who had gotten married to a 33-year-old Muslim man suggesting that as per Islamic law, a girl above the age of 15 can marry a person of her choice.
https://www.opindia.com/2022/11/kerala-high-court-refuse-exclude-muslim-personal-law-pocso-act/