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‘POCSO overrides personal laws’ — Karnataka HC holds pregnant Muslim minor’s marriage invalid  

In his bail application, the petitioner cited Islamic law to defend his marriage to his now-pregnant minor ‘wife’.  POCSO is a special law, said the court, rejecting the argument. 

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New Delhi: The Protection of Children from Sexual Offences (POCSO) is a special law that overrides personal laws, the Karnataka High Court held in an order earlier this month. 

The court was hearing the bail petition by a 27-year-old Muslim man who was arrested for having married a 17-year-old girl who’s now pregnant.   

In an order dated 12 October, a single-bench Justice Rajendra Badamikar dismissed the petitioner’s argument that Muslim personal law allows a person who has attained puberty to marry. 

The petitioner had argued that as one attains puberty at 15 years, there was no violation.

“Such arguments cannot be accepted in view of the fact that POCSO Act is a Special Act and it overrides personal law and under POCSO Act, the age for involving in sexual activities is 18 years (sic),” the high court said in its order.  

The court, however, granted bail to the petitioner saying that he had submitted relevant documents before the trial court and that there was also no question of his tampering with prosecution witnesses.  

“Further, the victim, being pregnant, requires proper support and the petitioner can take care of his wife,”  the court held.

The development comes at a time when courts are divided over the subject of Muslim minors. 

In its order on 30 September, Punjab and Haryana High Court held the marriage of a Muslim girl aged 15 valid.

Also Read: Child abuse or ‘teen romance’: 9 times courts gave a mixed message on POCSO

The complaint

The petitioner in the case was booked under sections 9 and 10 of the Prohibition Of Child Marriage Act (PCMA) 2006 and sections 4 and 6 of POCSO. While sections 9 and 10 of the PCMA lay down the punishment for child marriage, sections 4 and 6 of POCSO lays down the punishment for penetrative sexual assault. 

The FIR came on the basis of a complaint filed by the medical officer at a primary health centre in Bengaluru’s  Ramamurthy Nagar, where the girl had gone for a health checkup in July and was found to be pregnant.

The complaint said that the girl was married when she was still a minor. 

For context, Section 19 of the POCSO Act makes it mandatory for anyone —  including medical officers in hospitals — to report any incident of alleged sexual assault involving a “child”, regardless of the minor’s consent.

 Police must, in all such cases, register an FIR against suspects under POCSO Act. 

The law defines a child as “anyone below the age of 18 years”.   

After he was arrested in the case, the petitioner moved a regular bail petition before Bengaluru’s additional city civil and sessions judge, which was rejected.

NCPCR petition before SC

Earlier this month, the National Commission for Protection of Child Rights (NCPCR) — the country’s apex child-rights body — filed an appeal against a Punjab and Haryana High Court order that said that a Muslim girl over 16 was competent to marry a person of her choice. 

The Punjab and Haryana High Court’s order came in July 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 the wishes of their parents.

In its argument before the court on 17 October,  the NCPCR said that POCSO is a secular legislation that overrides customary laws that allow marriages between minors.

The child rights body also said that the order was passed not just in disregard of the POCSO, but also the PCMA. 

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 criminalise 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.

The Supreme Court will next hear the case next on 7 November.

Conflicting views on minors’ marriage & relationships

Various courts across the country have delivered conflicting verdicts on marriages and sexual relationships involving minors and personal laws.

The Karnataka High Court (2013) and the Gujarat High Court (2014) have held that in cases of minor Muslim girls, the 2006 PCMA law will prevail over personal laws. In 2018, however, the Punjab and Haryana High Court ruled the opposite.

Puberty and majority in Muslim law are the same,  the court said, and “a boy or girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere”.

There have even been contradictions within the same court.  In a 2014 order, the Gujarat High Court recognised a minor Muslim girl’s marriage under Muslim personal law. 

“According to the personal Law of Muslims, the girl no sooner she attains puberty or completes the 15 years, whichever is earlier, is competent to get married without the consent of her parents,” Justice P.B Pardiwala said in his ruling.

But in 2015, the same court ruled that the PCMA was a “special act” and would override the provisions of Muslim personal law, the Hindu Marriage Act, or any personal law.

Meanwhile, in September 2021, Calcutta High Court acquitted a man booked under POCSO after ruling that “voluntary sexual union” will not attract the law.  

The same year, the Delhi High Court quashed a similar First Information Report, saying that the life of the husband, wife, and child would be “ruined”. 

In its ruling in February this year, the Allahabad High Court said that the POCSO was not intended to prosecute teen romance.

In June, the Bombay High Court similarly quashed an FIR. 

“We are inclined to accept the request for quashing the FIR, only by considering their future. If the prosecution still remains, it will come in the way of their peaceful life,” the court had said then. 

In a petition before the Delhi High Court, a woman asked the court to allow her teenage daughter to terminate her pregnancy after hospitals refused to carry out the medical procedure without informing the police. 

The relationship was consensual, the woman said in her petition, adding that she wanted to avoid the “ensuing social stigma and harassment”. 

Courts have also repeatedly raised concerns over how difficult it was to apply POCSO to consensual relationships involving minors as well as those involving local customs that permit child marriages.

There also have been suggestions to exclude consensual sex, bodily contact, or allied acts from the ambit of the POCSO after the age of 16. 

(Edited by Uttara Ramaswamy)

Also Read: What is a Muslim ‘child marriage’? Punjab-Haryana HC order latest in series of contrary verdicts


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