New Delhi: Prevention of Child Sexual Offences (POCSO) is a secular legislation and overrides customary laws that allow marriages between minors, the National Commission for Protection of Child Rights (NCPCR) told the Supreme Court Monday.
The child-rights body, which is under the administrative control of the Union Ministry of Women and Child, made this contention in an appeal filed against a Punjab and Haryana High Court order.
In its 13 June order, the high court had observed that a Muslim girl aged 16 or above was competent to marry a person of her choice in accordance with customary law. This was after a 21-year-old man and a 16-year-old girl filed a petition seeking police protection on the grounds that they were in love and married against wishes of their parents.
Challenging the court order, the NCPCR said the HC with its observation on the validity of marriage involving a minor girl ignored statutory provisions and legal principles laid down by the apex court in the past.
The order was not just in disregard of the POCSO, but also the Prohibition of Child Marriage Act (PCMA) 2006, it pleaded.
POCSO, PCMA & Section 375 of IPC
NCPCR’s appeal comes at a time when courts, including the apex court, have highlighted the difficulties with the application of POCSO in cases where teenagers are involved in consensual relationships and local customs allow child marriages.
A special law, POCSO is aimed at shielding children from sexual abuse. Therefore, even if a minor girl consents to a relationship, it is immaterial for the purposes of registering a POCSO case against the boy.
As for PCMA, it prohibits marriages between men and women who are younger than 21 and 18 years, respectively. It also entails punishment for those who abet, promote or solemnise such marriages and grants the minors two years to apply for annulment of marriage.
The NCPCR also submitted Monday that the HC order is in violation of the Supreme Court’s 2017 judgment, which read down exception 2 of Section 375 of the Indian Penal Code (IPC) — the provision that protects a married man from facing charges of rape for sexually assaulting his wife.
The SC verdict had read down the section to criminalize rape in a marriage involving underage partners.
Appearing for the child-rights body, Solicitor General Tushar Mehta and advocate Swarupama Chaturvedi said the only question posed by NCPCR is whether the high court could have issued an order which violates penal provisions.
“There is a question of law that needs to be examined in this matter,” a bench led by Justice Sanjay Kishan Kaul observed while appointing senior advocate Rajshekhar Rao to assist the court in the matter. Rao had also assisted the Delhi High Court bench that delivered a split verdict on the constitutional validity of exception 2 under Section 375 which exempts a man from criminal prosecution for sexually assaulting his wife.
The apex court will hear the matter on 7 November.
‘POCSO applies to everyone’
In the case at hand, a young Muslim couple had approached the Punjab and Haryana High Court seeking direction to the police to provide them protection, citing a threat to their life and liberty.
Stating that they solemnised their marriage on 8 June in line with Muslim rituals, the couple contended that their lives were in grave danger since they had decided to marry against the wishes of their families.
Therefore, they moved a representation to the Pathankot senior superintendent of police (SSP) on 9 June. Upon not receiving a response, the couple moved the high court which granted them relief on 13 June.
Apart from directing the police to look into their request for security, the court also observed the nature of their marriage in its order.
Placing reliance on an earlier case and the principles of Mohammedan Law, the HC noted that the marriage of a Muslim girl is governed by the personal law of Muslims and attaining the age of 16 made her competent enough to enter into a contract of marriage with a person of her choice.
But the HC chose not to enter into the validity of the marriage and went ahead to grant them the protection that they were entitled to under Article 21 of the Constitution, which allows one the right to liberty.
According to NCPCR, the HC’s judgment “leads to endorsing the child marriage, which is illegal in India because POCSO Act applies to everyone”. The apex child rights body challenged the HC’s mandate to issue the direction, especially given the facts and circumstances of the case where the girl, it said, is a minor.
The legal position that sexual intercourse with a minor girl below 18 is a sexual assault, as per POCSO, cannot change due to the marital status of a child, it argued.
Further, it added, the HC erred in holding that the case was limited to the couple’s life and liberty and to the validity of their marriage.
POCSO and consent
The legal conundrum over the applicability of POCSO in consensual cases has troubled the courts several times in the past.
Just last month, the SC — while hearing an appeal against a Madras HC order that POCSO will be applicable even in cases of a consensual relationship with a minor — pointed to the implementation challenges of the law. The court was hearing an appeal filed by a man who was convicted for entering into a relationship with a girl aged 17 years and 10 months.
The Kerala High Court, too, has lamented the lack of a distinction between consensual sexual activity and child abuse. “Unfortunately, POSCO Act does not distinguish between rape and consensual sexual interactions,” it said.
However, the NCPCR appeal made no mention of earlier orders from other high courts where relief was granted to boys facing POCSO charges for marrying minor girls. Rather, it mentions an order from the Delhi HC delivered in July, which is contrary to the Punjab and Haryana HC order.
The top court’s intervention was also necessary on account of the difference of opinions on the issue, NCPCR submitted.
It added that it would be in the interest of justice to settle this question of law, while also asking SC to stay the implementation of the Punjab and Haryana HC order so that it does not set a precedent for other courts.
(Edited by Amrtansh Arora)