POCSO Act overrides Muslim personal law; husband liable for sex with minor Muslim wife: Kerala High Court

The Kerala High court on Friday held that marriage between Muslims under personal law is not excluded from the sweep of the Protection of Children from Sexual Offences Act (POCSO Act) and a husband who has sex with his minor Muslim wife would be liable under POCSO Act [Khaledur Rahman v State of Kerala]..Single-judge Bechu Kurian Thomas held that regardless of the validity of a marriage under personal law , if one of the parties is a minor, the offences under the POCSO Act would stand. "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 stand," the Court held. .The judge said that he could not concur with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana and the Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi &Ors. in which the two Courts had held a Muslim girl on attaining 15 years is entitled to marry a person of her choice and sex by the husband with such a minor girl he married would not attract the rigours of POCSO. He also said he couldn't concur with the decision of the Karnataka High Court in Mohammad Waseem Ahamad v. State in which the Karnataka High Court had quashed the criminal case against the accused, who had married a 17-year-old girl as per Mahomedan law. "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," Justice Thomas said.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 stand.Kerala High Court .Interestingly, he also disagreed with the decision of House of Lords in Gillick v. West Norfolk and Wisbech Area Health Authority in which the age of the victim was canvassed to say that she had the intellectual ability to give consent and was under no compulsion or any sexual exploitation toattract the POSCO Act. He said that though the argument is attractive, the circumstances were different. In Gillick's case, the House of Lords was considering a case where doctors were authorised by virtue of a circular issued by the Department of Health Services to prescribe contraceptives to girls below the age of 16 as long as they were protecting the girl against the harmful effects of sexual intercourse. A father who had five daughters below the age of 16 had challenged the circular and also sought for a declaration that such advice cannot be given without the parent's consent. After referring to the child's rights, the House of Lords had found the circular valid. "The said decision has no application to the facts of the present case as we are governed by the POCSO Act, which defines a child as below the age of 18 and does not provide any leeway on the age of majority," the High Court said. .The Court was considering a bail application moved by a man who was accused of sexually assaulting a 16-year-old girl, who was his wife. According to the prosecution, the accused had abducted the minor victim, who is a native of West Bengal, and committed repeated penetrative sexual assaults.The accused canvassed the provisions of Mohammedan Law to argue that he was legally married to the minor girl and argued that because the Muslim personal law permits marriage of girls who have attained puberty, he cannot be prosecuted for the offence of rape or any offenses under the POCSO Act..The High Court, however, disagreed..The Court noted that the POCSO Act is a special enactment. The advances and progress achieved in societal thinking have resulted in the enactment. This special statute was enacted based on principles arising out of jurisprudence relating to child abuse. "The child abuse jurisprudence evolved out of the need to protect the vulnerable, the gullible and the innocent child. The legislative intent to protect the child from sexual predators hovering over them under different labels, including that of marriage, is explicitly evident from the statutory provisions. Child marriages have been regarded as a human right violation. A child marriage compromises the growth of the child to her full potential. It is the bane of society," the order stated..A child marriage compromises the growth of the child to her full potential. It is a bane of society.Kerala High Court.The Court said that 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. In accomplishment of the said intent, the POCSO Act has defined the word ‘child’ in section 2(d) as ‘any person below the age of 18 years'," the Court said..It further noted that to put at rest any doubts over the applicability of the Act, section 42A has also been incorporated which lays down that the POCSO Act shall have overriding effect on the provisions of any other law in case of inconsistency between the two laws..The legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage.Kerala High Court.Referring to the personal law in question, the Muslim Personal Law (Shariat) Application Act of 1937, the Court noted that it statutorily recognizes that in all questions relating to marriage, the rule of decision shall be the Muslim Personal LawHowever, after the coming into force of the Prohibition of Child Marriage Act, 2006, it is questionable whether the said personal law will prevail over the special statute relating to marriages, the Court said.In the present case, the Court noted that the allegation of the investigating officer was that the victim, when she was only 14-years-old, was enticed by the accused without the knowledge of her parents.Since the accused was booked under the Indian Penal Code as well as the POCSO Act, the Court went through the provisions of both and opined that sexual exploitation of every nature against a child is treated as an offence. Referring to the maxim ‘Generalia Specialibis Non Derogant’ - a special law will prevail over the general law and ‘Specialia Generalibus Derogant - the Court said that marriage is not excluded from the sweep of the POCSO Act. "When the Courts are confronted with such a situation, the Courts' approach should be "to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific," the Court said in its order.Further, it held 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 to the extent of the inconsistency. "On an appreciation of the above principles, it can prima facie be held, 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 Court said as it dismissed the bail application..The petitioner was represented by advocates N Anand, Bijith S Khan and Rajesg ON. Public Prosecutor KA Noushad appeared for the State..[Read Order]