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Synopsis

The Kerala High Court on Friday held that marriage between minor Muslims under personal law is not excluded from the sweep of the Prevention of Child Sexual Offences (POCSO) Act. 

Noting that offences under the POCSO Act will apply if one of the parties in marriage is a minor, regardless of whether the marriage is valid or not, Justice Bechu Kurian Thomas observed:

“The POCSO Act is a special enactment. The advances and progress achieved in societal thinking have resulted in the enactment. This special statute was enacted based on principles arising out of jurisprudence relating to child abuse. Child abuse jurisprudence evolved out of the need to protect the vulnerable, the gullible, and the innocent child. The legislative intent to protect the child from sexual predators hovering over them under different labels, including that of marriage, is explicitly evident from the statutory provisions”.

The single-judge bench stated that "child marriages have been regarded as a human right violation, it compromises the growth of the child to her full potential and is the bane of society".

“The legislative intent reflected through the POCSO Act is to prohibit physical relationships with a child, even under the cover of marriage. This is the intent of society, too, for a statute is, as is often said, the expression or reflection of the will of the people”, the court added.

The court was hearing a bail application filed by a 31-year-old Muslim man, Khaledur Rahman accused of kidnapping and raping a minor aged 15 years 8 months (on the date of registration of FIR). Rahman claimed that he married the minor victim legally under the personal laws that applied to them and sought regular bail as the prosecution was inherently illegal.

Counsel for Rahman contended that the allegations were on the wrong notion, as the victim was his wife and they got married in accordance with the Mahomedan law in March 2021. It was also contended that as Mahomedan law allows the marriage of girls under the age of 18, and such marriages are legally valid, Rahman could not even be prosecuted for rape under the POCSO Act.

Opposing the bail plea, the Public Prosecutor (PP) argued that the victim's birth date was December 16, 2006, and thus she was under the age of 16. It was also claimed that during the investigation, it was discovered that Rahman kidnapped the victim from her parents and that even the alleged marriage was unknown to her parents.

Furthermore, the PP contended that even if it was assumed that the marriage occurred, it was not a sufficient reason to overlook the provisions of the POCSO Act, as the latter would take precedence over Mahomedan law.

Taking note of the contentions, Justice Thomas referred to the legal maxim ‘Generalia Specialibis Non-Derogant’ - a special law will prevail over the general law and ‘Specialia Generalibus Derogant’ - special things derogate from general things and stated that “marriage cannot be excluded from the sweep of the statute”.

The court placed reliance on the Apex Court's decision in a case, wherein the court held, “When the Courts are confronted with such a situation, the Court's approach should be to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific".

The court also noted that "Section 42A expressly states that the POCSO Act will take precedence over any other law in the event of a conflict, and it intends to override personal and customary laws. Thus, it cannot be denied that after the implementation of the POCSO Act, penetrative sexual intercourse with a child, even if it is under the guise of marriage, is an offence".

The court further stated that, when the provisions of a statute are repugnant to, or contrary to, customary law or personal law, the statute will prevail in the absence of any express exclusion of the said customary or personal law from the statutory provisions, and the personal law or customary law will be abrogated to the extent of the inconsistency.

“On an appreciation of the above principles, it can prima facie be held, for the purpose of this bail application, that the very marriage allegedly entered into between the petitioner and the victim cannot be relied upon as a legally valid marriage”, the court held.

Conclusively, the court noted that apart from the allegation of abduction for the purpose of marriage, the victim, in this case, was still under the age of 16 and she was brought to Kerala from West Bengal, allegedly against her parents' wishes. Therefore, “I am of the view that this is not a fit case where the petitioner can be released on bail at this juncture”, the court ordered.

Accordingly, the court dismissed the bail application.

Case Title: Khaledur Rahman v. State of Kerala & Anr.