The Kerala High Court on Friday held that marriage between Muslims under personal law is not excluded from the provisions of Protection of Children from Sexual Offences Act, or POCSO Act, making it liable for the husband for having sex with wife who is a minor, Bar and Bench reported on Saturday.
A single bench of Bechu Kurian Thomas made the ruling while hearing a bail application moved by a 31-year-old Muslim man accused of kidnapping and raping a 16-year-old who is his wife. The first information report was registered against the man on the intimation received from a doctor of a health centre where the minor had gone for a checkup for pregnancy, reported Live Law.
It is alleged that the man had abducted the minor from West Bengal and committed repeated sexual assault against her.
In his bail plea, the man said that he was legally married to the minor girl under the provisions of Mohammedan Law. According to the personal law, marriage of girls who have attained puberty is considered legal.
However, the Kerala High Court held that the legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage.
“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,” Thomas said, reported Live Law.
He added: “The POCSO Act is a special statute enacted specifically for the protection of children from sexual offences. Sexual exploitation of every nature against a child is treated as an offence. Marriage is not excluded from the sweep of the statute.”
The latest ruling came weeks after the Karnataka High Court had passed a similar order on October 31. The High Court had annulled the marriage of a pregnant minor Muslim girl stating that the religion’s personal law is invalid as it violates provisions of the POCSO Act.