POCSO Act to prevail: Punjab and Haryana High Court denies relief to man who married minor under Muslim personal law

The Punjab and Haryana High Court recently rejected the anticipatory bail plea of a Muslim man who was booked for kidnapping a 15-year-old girl he had married in June 2023..Justice Harpreet Kaur Jeewan refused to consider the man’s contention that he had married the girl as per the personal law and it was a legal ‘nikah’ since the girl had attained the age of puberty.The Court noted that the Protection of Children from Sexual Offences Act (POCSO Act), which has been enacted to protect children from sexual offences, defines a child as anyone below the age of 18 years and prevails over other laws which may be inconsistent.“A child has been defined any person below the age of 18 years, as per sub-section (d) of Section 2 of the Act of 2012. Apart from this, Section 42-A of the Act of 2012 provides that the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency,” it said..The Court also reasoned that age has a relevance with the legality and validity of consent.“Though the petitioner has alleged that a ‘Nikah’ has been performed with the prosecutrix with her consent, but the validity of the consent is yet to be ascertained which would be subject to the decision of the inquiry to be conducted by the Special Court regarding the age of the victim under sub-Section (2) of Section 34 of the Act of 2012,” it added..Pertinently, the accused had relied upon earlier decisions of the High Court in which the Court had ruled that a Muslim girl who has attained puberty can marry a person of her choice. However, the Court noted that the Supreme Court has already entertained an appeal filed by the National Commission for Protection of Child Rights (NCPCR) and directed that pending further orders, the High Court decision shall not be relied upon as a precedent in any other case. “In view of the subsequent order dated 13.01.2023 passed by Hon’ble the Apex Court in National Commission for Protection of Child Rights (NCPCR) case (supra), the ratio in the decisions relied upon by learned counsel for the petitioner are not applicable in this case,” it said..POCSO Act overrides Muslim personal law; husband liable for sex with minor Muslim wife: Kerala High Court.The accused was booked by the Police last year on the complaint moved by the minor girl’s father after the victim was allegedly kidnapped in a 'Bolero' vehicle from her home. In February this year, the girl in a statement recorded before the magistrate said she doesn't want to go with her parents. Considering her age, she was sent to a Children’s Home in Punjab. .Seeking pre-arrest bail, the accused claimed that the girl was major as per the ossification test conducted by a private diagnostic centre in January this year.However, the State told the Court that the girl as per the school records was born in March 2008 and this is about 15 years and nine months old..After considering the facts and submissions, the Court at the outset said that it will not conduct an inquiry regarding the girl’s age since that is to be determined by the Special Court under POCSO Act.With regard to the ossification test, the Court said it cannot be relied upon since the examination was done by a private practitioner without the association of investigating agency. The Court also said it was debatable whether the report of the ossification test would prevail over the school records.“The ossification test report has a role in the absence of birth certificate from school; or the matriculation certificate or equivalent certificate or birth certificate issued by corporation or a municipal authority or a Panchayat,” it said..In conclusion, the Court in the order dated April 2 said that the girl prima facie was minor and the contentions of the accused that she is major is a matter of inquiry by the Special Court.It thus rejected the plea for anticipatory bail. Advocate Mohd Salim represented the accused.Assistant Advocate General Himani Arora represented the State.Advocate Bikramjeet Singh Baath represented the complainant..POCSO Act overrides Muslim personal law; husband liable for sex with minor Muslim wife: Karnataka High Court