Aneesh vividly remembers that October 10 night four years ago, when policemen picked him up from his home in Marukara Naika Colony in Kerala’s Wayanad district.

The Adivasi, who was 21 years old then, had just got home from a day at the farm where he works and was about to leave for his wife Geetha’s house when he was arrested.

“I was stunned when they came to arrest me because I had not committed any crime,” Aneesh said. “My conscience was clear. So I asked them about the complaint against me. But they didn’t say anything.”

Aneesh belongs to the Kattunaika community, one of several aboriginal communities that make up a large part of the population of the hill district of Wayanad.

After registering the arrest, a policeman read out the charges against him. “He told me that the arrest was made under Pocso [Protection of Children from Sexual Offences ] Act, as I had married a girl below 18 years of age. Besides, [he said] I had raped her and she became pregnant. And I listened in utter disbelief.”

Aneesh later learnt from relatives that the police had forced his wife to complain against him. “She was eight weeks pregnant at the time,” he said. “Her pregnancy was terminated soon.”

Aneesh was the first person from Wayanad to be arrested under the Pocso Act in the district. It was enacted in 2012 as a dedicated law to cover sexual assault, harassment and pornography for children below the age of 18 – which were earlier covered, though not exhaustively, under sections of the Indian Penal Code. Now out on bail, Aneesh remarried the same girl after turned 18.

Aneesh, who was arrested under the Pocso Act in October 2012, is now out on bail. Photo: TA Ameerudheen

Widespread arrests

Though widely regarded as a stringent and much-needed Act, the legislation had a curious fallout in the Adivasi belts of Kerala.

In Wayanad alone, 20 men were arrested under the Pocso Act from various colonies starting 2012, for marrying girls below the age of 18 – which is said to be in line with their traditions. The fact that child marriages are common in some tribes, coupled with the lack of awareness about the Act and its stringent provisions, have led to arrests of Adivasi men in other districts of Kerala too, such as Attappady and Idukky, according to media reports and Adivasi activists.

According to the district website, about 36% of the Wayanad’s population is Adivasi, predominantly the Paniyas, Kurumas, Adiyars, Kurichyas, Ooralis, Kadans and Kattunaika.

Of the 20 men who have been arrested from here under the Act, all except Babu, who is from the dominant Paniya tribe, are out on bail.

The court had sentenced 21-year-old Babu, an agricultural labourer, to 40 years in jail under various sections of Pocso Act, including on charges of rape, in September last year. During the trial, his wife wept and pleaded for Babu’s release, after which the court reduced the quantum of sentence to 10 years. Babu is now languishing at the Central jail in the state’s Kannur district.

Binu, also out on bail, works at an arecanut farm.

The crime

According to custom, in some of the Adivasi communities in Kerala, such as the Paniyas and Kattunaikas a girl and a boy can marry and live with a partner of their choice after they attain puberty.

An elder in the Kattunaika community described how marriages among Adivasis took place “A marriage happens when the man takes the woman to his home, or he begins to live in the woman’s house,” said Vasudevan, Aneesh’s neighbour.

In the cases were arrests were made, the grooms were above the age of 21 – the legal marriageable age for men in India – but brides were below the age of 18, legally not yet adults.

Take the case of 22-year-old Binu, a Paniya from Wayanad’s Vithukadu Colony, who was arrested two days after his marriage. “We were in love for two years before deciding to live together,” Binu, currently out on bail, told this writer, who met him at an arecanut farm in Ambalavayal where he worked. “I stayed in her house for two days, but on the third day I was arrested. I spent three months in jail, while she was sent to the Nirbhaya Hostel, run by the district Child Welfare Committee. I didn’t do anything wrong. I was not aware of her age. Marriages in our community happen like this. I always yearned to have a family life, but the law shattered my dreams.” Binu said he is not allowed to even meet the girl till she turns 18.

Shivadasan, a 21-year-old Paniya working as a daily wage labourer, had a similar experience. “I was arrested 15 days after my marriage,” he said. “I suspect that tribal promoters [who act as a link between the Adivasis and the government] who visit our colony regularly, informed the police that my wife was under-aged. I spent three-and-a-half months in jail before coming out on bail.”

His father, Vella, cannot walk without support and said he was frightened when he saw the police. “I felt immensely sad when police took away my innocent son and his wife from our house,” he said. “We have our own marriage custom and I don’t understand why police doesn’t like it.”

Stepping in

Though the police have been charging Adivasi men under the Pocso Act since 2012, human rights activists came to know about only late last year, after which this also drew media attention.

The exact number of such arrests came to light after human rights activist Dr PG Hari filed an Right to Interest application. “It became clear that 20 tribal youngsters were languishing in various jails,” he said. “The statistics brought together activists from all over the state, who formed Committee Against Posco on Tribal Marriages to co-ordinate agitations against the arrests.”

Hari said the insensitivity and lack of awareness about Adivasi life and culutre among law enforcement agencies and courts was the root cause of the issue. “Grown up men and women have the freedom to live together in Adivasi societies,” he said. “If the judges knew this, they wouldn’t have put the tribal youths behind the bars.”

The activist claimed that the district Child Welfare Committee has not conducted awareness programmes about the act. “The Adivasis should have given at least some time to understand the new act,” he said. “The police acted in haste.”

The men who are out on bail have to be present in the court, which is in the town of Kalpetta in Wayanad, during the case hearing.

Shivadasan said it is a pain to travel to Kalpetta, about 25 km away from where he stayseach time he gets a call from the advocate’s office. “I took off from work to go to the court,” he said. “It would affect my earning. I request the government to pardon all Adivasi men who are charged under Pocso.”

Shivadasan's father and mother at thier home in Kallur Colony in Wayanad. Photo: TA Ameerudheen

Awareness gap

Advocate VT Raghunath, who will soon present Babu’s bail application in the Kerala High Court as it was rejected by the district court, said that evidence that the court examined in such cases was favourable to the prosecution. “It gives undue advantage to prosecution,” he said. “People’s representatives should highlight the flaws in the Pocso Act and try to amend it.”

Raghunath said Pocso courts should have been careful in their handling of the cases against Adivasis “They [the Adivasis] were not aware of the new act and its consequences,” he said. “Many of them even didn’t know the legal age for marriage. The courts should have taken these points before awarding harsh punishments to them.”

However, district Child Welfare Committee chairman Father Thomas Joseph Therakam said that Adivasi customs should not be placed above law of the land. “The legal age for marriage is 18 years for girls and 21 years for boys. We should not keep Adivasi youngsters out of this bracket.”

According Therakam, it was absurd to say that Adivasi men, who were arrested under Pocso, had followed their custom. “Those were the customs of the yore,” he claimed. “It is not practiced anymore.”

However, he admitted to the absence of awareness programmes for Adivasi communities. “There should have been better awareness programmes in tribal hamlets on the stringent Pocso Act,” he said.