Personal laws can't override POCSO, Child Marriage Restraints Act: Karnataka HC denies bail to person accused of rape, marriage with minor girl

The Karnataka High Court recently held that personal laws cannot override the special enactments such as Protection of Children from Sexual Offences Act (POCSO), Child Marriage Restraints Act or general laws like Indian Penal Code (IPC) when it comes to heinous offences like rape or marriage with a minor girl (Rahul@Nayaz Pasha v. State of Karnataka).

In this regard, Justice K Natarajan said that though second marriage is permissible under Mohammedan Law, a person who marries or has sexual intercourse with a minor girl even with her consent would be liable to be punished under special laws like POCSO and Section 375 of IPC.

“Though the second marriage is permissible under the Mohammedan Law, but the personal law cannot override the Special Law of POCSO, Child Marriage Restraints Act and General Penal Code of this Country. Merely the parties are Mohammedan that does not mean that the petitioner-accused No.1 has right to marry a minor girl by enticing and abducting her.”

The Court, therefore, rejected the bail plea of a person accused of kidnapping and raping a minor girl.

The victim, 15 years of age, was abducted by the accused/petitioner, who was her neighbour, and was illegally detained by the latter for about 3 days.

Subsequently, the accused along with his wife the obtained the signature of the victim on a blank paper. It is alleged that with this document, he got a marriage certificate in which the age of the victim was forged as 19 years.

Later, the wife of the accused took the victim and left her in a house where the petitioner sexually assaulted her. After escaping the custody of the accused, a case was registered against the offender and he was remanded to judicial custody.

He was charged with offences punishable under Sections 363 (kidnapping), 342 (wrongful confinement), 506 (criminal intimidation), 376 (punishment for rape) of Indian Penal Code and for offences under POCSO Act and the Child Marriage Restraint Act.

Thereafter, the petitioner approached the sessions judge for bail, which came to be rejected, leading to the present appeal before the High Court.

The counsel for the petitioner submitted that the victim and the petitioner were in love and had eloped. Further, it was contended that they married in the presence of Mutavali and the marriage was legally registered. On these grounds, application for bail was pushed.

The government pleader strongly opposed the bail application.

Before delving into the issue at hand, the Court noted two things.

First, that the victim was only 15 years of age and second, that the wife of the accused had abetted him in committing rape on the victim.

The Court further observed that even if the victim, being underage, had given consent for abduction or marriage or sexual intercourse, her consent would be immaterial considering her age.

The Court stressed this as the petitioner had stated that the victim had given her no-objection in granting bail to him.

“Therefore, even otherwise, if she has given consent for abduction or marriage or sexual intercourse, her consent is immaterial as she was minor and even notice was issued to respondent No.2, the complainant and the de facto complainant appeared through an advocate and produced the affidavit of the victim stating that the victim herself went along with the accused and got married and she is residing in the house of the petitioner-accused. That cannot be taken as her consent for granting bail. Even if the victim stated ‘no objection’, but as she is a minor girl, it cannot be considered as a valid ‘no objection’ as it is against the law.”

The Court further highlighted that the “no-objection” of the victim cannot be considered as it does not give a license to the offender to commit a heinous offences such as rape.

Further, the Court opined that considering the same would essentially mean diluting the special laws enacted by the parliament.

“Even if the minor girl gives ‘no objection’ to release the accused in an heinous crime like rape on a minor girl and granting bail to the accused is nothing but giving license to the offender to commit similar offences which would dilute the special act enacted by the parliament for protecting the children from sexual offences and also deviating the provisions of Sections 9 and 10 of Child Marriage Restraint Act apart from the provisions of Section 375 of IPC and it will send a wrong message to the Society.”

Therefore, the Court proceeded to say that in the interest of public at large and with an intention to curtail such type of sexual offences, the Court would ignore the consent of a minor girl giving ‘no objection’ for granting bail to the accused.

Such heinous offences, the Court said, should be dealt with ‘an iron hand’.

With these observations, the Court proceeded to dismiss the bail application.

[Read Judgment]