Marriage between Muslims under Personal Law not Excluded from Sweep of the POCSO Act:  Kerala High court

marriage, muslim, personal law, sweep, POCSO,

The Kerala High Court ruled that the marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.

Background 

Petitioner is indicted for the offences of kidnapping and rape of a minor and seeks reprieve from detention. He claims that he had validly married the victim under the personal laws applicable to them. Despite the victim being a minor, petitioner urges that he be granted regular bail as the prosecution is inherently illegal.

Arguments 

Advocate N. Anand, appearing for the petitioner, contended, with elan, that the allegations are based on a wrong notion as the victim is petitioner’s wife, and they had married each other in accordance with the Mahomedan law.

He contended that since Mahomedan law permits 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.

K.A.Noushad, Public Prosecutor, opposed the application and contended that the date of birth of the victim is 16.12.2006, and hence she is, at present, less than 16 years of age.

It was further contended that during the course of the investigation, it was revealed that the victim was abducted by the petitioner from her parents and that the alleged marriage is unknown to her parents. 

Decision 

The single judge bench of Justice Bechu Kurian Thomas noted that the petitioner is 31 years in age, the victim is only 15 years and 8 months on the date of registration of the FIR.

The court said that since the investigating officer alleges that the victim was enticed by the accused without the knowledge of her parents and the age of 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. 

It was observed that Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statute. 

It was further observed that for the purpose of this bail application, that the very marriage allegedly entered into between the petitioner and the victim cannot be relied upon as a legally valid marriage.

The bench held 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 viewed that this is not a fit case where the petitioner can be released on bail at this juncture.

Case title: Khaledur Rahman v/s State of Kerala

Citation: Bail appl. no. 8216 of 2022 

Date:  18 November 2022

Click here to read the Order/Judgment 

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