Muslim personal law not excluded from the ambit of Pocso’s provisions, says Kerala HC

THIRUVANANTHAPURAM: The Kerala high court has held that marriage with a minor from the Muslim community is not excluded from the ambit of the Protection of Children from Sexual Offences (Pocso) Act and her Muslim husband who has physical contact with his minor wife would be liable under the act.

The single bench of justice Bachu Kurian Thomas on Friday ruled that if one of the parties is a minor, offences under the Pocso Act will apply, while dismissing the bail plea of an accused who was arrested for raping a 16-yearold girl from West Bengal who later turned out to be his wife. According to the prosecution, the accused abducted the minor and sexually assaulted her several times. Later, the 31-year-old married the girl.

The accused contended that he was legally married to the girl and the Muslim personal law board permits marriage of girls from the community once they attain puberty, and that he cannot be prosecuted under the Pocso Act. . He also cited earlier judgments from Haryana, Delhi and Karnataka high courts to support his claim. But the court rejected the submissions. “If one of the parties to the marriage is a minor, irrespective of validity of marriage or otherwise, offences under Pocso Act will stand. With respect to the learned judges (from other courts mentioned), I am unable to agree to the proposition laid down in those decisions that an offence under Pocso will not get attracted against a Muslim marrying a minor,” the judge observed.

The court said the legislative intent reflected through the Pocso Act was to prohibit physical relationship with a child, even under the cover of marriage. “A child marriage compromises the growth of the child to her full potential. It is bane of society,” the court observed while dismissing the bail plea of the accused.