(2022 LiveLaw (Ker) 600)
(Sex with a minor even after legit marriage is an offence, Special Law (POSCO Act) overrides the Muslim Personal Law)
CORAM: Justice Bechu Kurian Thomas
APPEAL NO.: Bail Application No. 8216 of 2022
BACKGROUND
In the immediate case, a 31 years old man named Khaledur Rahman was accused of kidnapping and raping a minor. A doctor from the health care centre where the victim went to get her pregnancy checked informed the police about the situation, and the FIR was registered on the basis of the information given by the doctor. The offence charged was that the accused kidnapped the minor from West Bengal and committed repeated penetrative assaults prior to August 31, 2022, as a result of which the victim got pregnant. At the Thiruvalla Police Station, the accused was charged under Sections 366, 376(2) (m), and 376(3) of the IPC, as well as under Sections 5(j) (ii), 5(i), and Section 6 of the POCSO Act. Later in court, the defendant requested bail, claiming that he married the minor (victim) in accordance with Muslim personal law in March 2021.
FACTS OF THE CASE
The facts of the given case are briefed below:
- An offender is a 31-year-old man named Khaledur Rehman.
- The offence committed by him was a kidnapping and raping a minor girl, whom he claimed to be his wife.
- He allegedly kidnapped the minor in West Bengal and subjected her to repeated penetrative sexual assaults that resulted in her pregnancy before August 31st, 2022.
- The matter was brought to the attention of the police by a doctor at the health care centre where the minor girl went for her pregnancy test. It was known from her Adhaar card that she was only 16 years old.
- The accused moved a bail plea in court, claiming that he was married to the victim as per Muslim personal law.
ISSUES RAISED IN THE CASE
The issue raised in the immediate case is that:
- Is the accused actually married to the minor?
- If the minor was abducted and raped by the petitioner?
- Whether the provisions of the POSCO Act can override the provisions of Muslim Personal Law in certain circumstances like intercourse with a minor girl (core issue) when marriage is validated?
CONTENTION OF THE PETITIONER
The petitioner claimed that the victim, who was a minor, was his legally recognised wife. The victim was 16 years old, and according to Muslim Personal Law, a person can get married at 15 years old, which is the age at which they reach puberty. The petitioner cannot be prosecuted under the POSCO Act because the marriage was legal under personal law. Additionally, the victim requires the petitioner’s support during pregnancy, so he should be released on bail.
JUDGEMENT
The court in its judgment observed, “Marriage under personal law is not excluded from the sweep of the POSCO Act. If one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POSCO Act will apply”.
It was noted that at the time of marriage the girl was only 15 years 8 months at the time of registration of FIR. Therefore at the time of the alleged marriage as per Muslim Law, she was only 14 years and 4 months. Even though the Muslim Personal Law (Shariat) Application Act, 1937, statutorily claims the supremacy of Muslim Law (Shariat) with regard to the question of marriage the provisions of the Prohibition of Child Marriage Act, 2006 cannot be overlooked. In addition to it, section 12 of the Muslim Personal Law provides that child marriage is void under certain circumstances.
It was observed during the investigation it was found that the victim was taken away without the knowledge of her parents, also her age at the time of the alleged marriage was below 15 years. Therefore the existence of marriage is questionable even under the said Act. The learned Judge observed that the POSCO Act was enacted in order to protect children from sexual offences. Therefore marriage is also included in it as sexual exploitation of every kind is covered by this Act. The court also referred to a legal maxim ‘Generalia Specialibis Non-Derogant’ which means ‘special law will prevail over the general law’. It was also opined that unless there are any exclusions given in the customary or personal law the special will prevail. The previous statement is supported by section 42 A of the POSCO Act.
Justice Thomas also referred to the decision of the Karnataka High Court in the case of Sri. Aleem Pasha v. State of Karnataka. In this case, it was held that POSCO Act supersedes the Personal Law in matters like age of consent for intercourse therefore sex after marriage with a minor is an offence under the POSCO Act.
The learned single bench also respectfully disapproved the decisions of Karnataka High Court Waseem Ahmad v. State (2022 LiveLaw (Kar) 436): Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); Delhi High Court Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793).
DECISION
Therefore the court dismissed the bail plea of the accused as the alleged marriage was not valid according to the personal law. Therefore, the court dismissed the accused’s bail plea as the alleged marriage was not valid according to personal law. In addition, offences against minor girls, such as sexual exploitation of any kind, will not be exempt from the POSCO Act, even after a valid marriage.
Author’s Name: Umra Siddiqui (Aligarh Muslim University, Aligarh)
